BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23/12/2009
CORAM
THE HONOURABLE MR.JUSTICE D.MURUGESAN
and
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
W.A.(MD) No.673 of 2008
S.Ramakrishnan .. Appellant
versus
1. S.Marimuthu
2. The Commissioner
Hindu Religious & Charitable Endowments
Nungambakkam, Chennai-34
3. The Joint Commissioner
Hindu Religious & Charitable Endowments
Sivagangai
4. S.Ramachandran
5. S.A.Rajendran Poosari
6. R.Soundararajan Poosari
7. S.Kathiresan Poosari
8. S.Ramar Poosari
9. R.Maharajan Poosari
10.S.R.M.Ramamoorthy Poosari
(RR 5 to 10 given up as per the
order of Court dt. 16.12.2009) .. Respondents
Appeal under Clause 15 of the Letters Patent against the order dated
17.9.2008 made in W.P.(MD) No.420 of 2007.
!For Appellant ... Mr.K.M.Vijayan
Senior Counsel for
Mr.V.Sasikumar
^For Respondents ... Mr.T.R.Rajagopalan
Senior Counsel for
Mrs.N.Krishnaveni for R1
Mr.K.M.Vijayakumar
Special Government Pleader
for R2 & R3
Mr.S.Conscious Ilango
for R4
:JUDGMENT
D.MURUGESAN, J.
The writ appeal pertains to the approval of the hereditary trustee to
Arulmighu Mariamman Temple at Irukkankudi, Sattur Taluk, Virudhunagar District.
The said temple is a listed temple under the control of Hindu Religious and
Charitable Endowments Board and the administration of the temple is governed by
a scheme framed by the Board in its proceedings dated 4.5.1935. The scheme was
later modified on 31.5.1955 by which a provision for appointment of an Executive
Officer was also made.
2. One of the hereditary trustees by name Ramasamy Poosari died on 6.8.75
leaving behind his three female heirs. Mrs.Seeniammal alias Sundarammal, the
eldest daughter, applied to the Joint Commissioner, Hindu Religious and
Charitable Endowments Department, Sivagangai to register her as the hereditary
trustee. That was objected to by the other hereditary trustees on the ground
that she being a female, could not be appointed as the hereditary trustee.
Hence Seeniammal alias Sundarammal filed a suit in O.S.No.188 of 1993 on the
file of District Munsif Court, Sattur for a declaration that she succeeded her
father to the office of trusteeship of the temple. That suit was decreed
declaring that she is entitled to the office of trusteeship even though she
being a female. As against the said judgment and decree, an appeal was filed in
A.S.No.27 of 1996 on the file of Principal District Judge, Srivilliputhur and
the same was dismissed. As against the said judgment and decree, a further
appeal in S.A.No.465 of 1998 was filed before this Court and the same was later
on withdrawn.
3. In view of the above, Seeniammal alias Sundarammal was registered as
the hereditary trustee of the temple by the proceedings of the Joint
Commissioner dated 29.1.98. She died on 2.4.2004 leaving behind three sons and
one daughter as her heirs. The first respondent by name Marimuthu, being the
eldest son, claimed the right to hold the office of trusteeship in terms of
Section 54(1) of the Hindu Religious and Charitable Endowments Act, 1959
(hereinafter referred to as “the Act”). However, his brother viz., the
appellant by name Ramakrishnan, being the last son of Seeniammal, objected to
the same and filed a petition on 18.7.2004 before the Joint Commissioner, Hindu
Religious and Charitable Endowments Department, Sivagangai on the ground that
the first respondent had acted against the interest of the institution and
therefore he is disqualified in terms of Section 26(1)(h) of the Act. By the
proceedings dated 6.5.2005, the Joint Commissioner registered the first
respondent as the hereditary trustee on the ground that only the eldest member
can be registered as the hereditary trustee. The appellant thereafter filed
W.P.(MD) No.4647 of 2005 seeking to quash the order of the Joint Commissioner
dated 6.5.2005. The said writ petition was allowed on the ground that the
fourth respondent herein was not heard and the principles of natural justice
were violated. Hence the matter was remanded back to the Joint Commissioner for
fresh consideration. After remand the Joint Commissioner, Hindu Religious and
Charitable Endowments Department, Sivaganga, by his further proceedings dated
31.3.2006, once again held that the first respondent is entitled to become the
hereditary trustee after the death of his mother.
4. That order was again questioned by the appellant in an appeal before
the Commissioner, Hindu Religious and Charitable Endowments Department, Chennai
in A.P.No.20 of 2006 and the same was allowed on the ground that the first
respondent had purchased the properties belonging to Arulmighu Chidambareswarar
Temple, Sattur from a third party and thereby he had acted adverse to the
interest of the institution and consequently, he is disqualified under Section
26(1)(h) of the Act. He also found that the first respondent has not proved the
Will executed by his mother was forged. Therefore, he remitted the matter back
to the Joint Commissioner to verify whether the first respondent had purchased
the Kattalai properties of Arulmighu Chidambareswarar Temple knowing fully well
that they were the properties of the temple, to decide as to who is next in line
of succession between the appellant and first respondent taking into account of
the existence of Will.
5. The above order was questioned by the first respondent in the writ
petition. So far as the dispute relating to the purchase of Kattalai properties
of Arulmighu Chidambareswarar Temple by the first respondent and the existence
of the Will are concerned, the learned single Judge found that the order of the
Commissioner in directing the Joint Commissioner to decide the succession based
on the Will cannot be sustained, as the Joint Commissioner has no jurisdiction
to go into that question and the same should be decided only in a suit. So far
as the application of Section 26(1)(h) of the Act is concerned, the learned
single Judge found that it is applicable only if an individual acted adverse to
the interest of that temple or religious institution and not in any other temple
or any other institution unconnected with the temple. With these findings, the
learned Judge allowed the writ petition. Aggrieved by the same, the third
respondent in the writ petition has preferred this appeal.
6.We have heard Mr.K.M.Vijayan, learned senior counsel appearing for the
appellant, Mr.T.R.Rajagopalan, learned senior counsel with Mrs.N.Krishnaveni,
learned counsel for the first respondent, Mr.K.M.Vijayakumar, learned Special
Government Pleader for the Hindu Religious and Charitable Endowments Department
and Mr.S.Conscious Ilango, learned counsel for the fourth respondent.
7. Mr.K.M.Vijayan, learned senior counsel for the appellant would fairly
submit that the finding of the learned single Judge as to the dispute relating
to the existence of Will, the civil Court alone would have jurisdiction and that
neither the Commissioner nor the Joint Commissioner of Hindu Religious and
Charitable Endowments can go into the said issues, cannot be found fault with.
However, the learned senior counsel would submit that when once it is alleged
that the first respondent had purchased the Kattalai properties of Arulmighu
Chidambareswarar Temple, in terms of Section 26(1)(h) of the Act, he is
disqualified to be approved as the hereditary trustee. He would also submit
that the expression “the institution” employed in Section 26(1)(h) must be read
conjointly with the expression “any religious institution” employed in Section
26(1) of the Act. If both the provisions are read together, the only conclusion
will be that if a person has acted against the interest of a religious
institution, he is disqualified and cannot be considered for appointment as the
hereditary trustee in any religious institution.
8. On the other hand, Mr.T.R.Rajagopalan, learned senior counsel for the
first respondent would submit that the entire issue is governed by the
provisions of Section 54 of the Act, which contemplate that when a permanent
vacancy occurs in the office of the hereditary trustee of a religious
institution, the next in the line of succession shall be entitled to succeed to
the office. By virtue of that provision, the first respondent, being the eldest
member, had succeeded to the office after the demise of his mother. When that
was objected, an enquiry was conducted by the Joint Commissioner in terms of
Section 63 and held that the first respondent is entitled to succeed to the
office of hereditary trustee. That order was carried on to further appeal to the
Commissioner under Section 69 of the Act. Therefore the provisions of Section
26 relating to appointment cannot be made applicable to the facts of this case.
That apart, even assuming that the provisions of Section 26(1)(h) would apply to
the case on hand, it would apply only when a person is disqualified for being
appointed as a trustee if he has acted adverse to the interest of the
institution. The expression “the institution” refer to that institution alone
and not to other institutions. Hence the learned senior counsel would submit
that the order under appeal needs no interference.
9. Mr.S.Conscious Ilango, learned counsel appearing for the fourth
respondent has adopted the arguments of the learned senior counsel
Mr.K.M.Vijayan for the appellant. He would also submit that the case on hand is
squarely covered under Section 26(1)(h) of the Act, which relates to the
appointment. After the demise of the hereditary trustee, in the event any one
of the disqualifications is noted in respect of the person who is in line, he
cannot be approved as the hereditary trustee. In that event, the appointment of
the first respondent is construed to be made only under Section 26(1) and in
that case, he is disqualified in terms of Section 26(1)(h) of the Act. He would
further submit that the expression “the institution” employed in that section
would mean “any institution” and not restricted to the particular institution.
In matters of appointment of trustees, the provisions of the Act cannot be given
a narrow meaning and they should be given a wider meaning in the sense that the
disqualification would be applicable to any institution and not to the
particular institution, it is argued.
10. We have carefully considered the rival contentions. The filling up of
the vacancies in the office of “trustee” and “hereditary trustee” must be
considered with reference to the scheme of the Act. Sub-section (11) of Section
6 of the Act defines a “hereditary trustee” as follows:-
“6.(11) “hereditary trustee” means the trustee of a religious institution, the
succession to whose office devolves by hereditary right or is regulated by usage
or is specifically provided for by the founder, so long as such scheme of
succession is in force.”
Sub-section (22) of Section 6 defines a “trustee” as follows:-
“6.(22) “trustee” means any person or body by whatever designation known in whom
or in which the administration of a religious institution is vested and includes
any person or body who or which is liable as if such person or body were a
trustee.”
As far as the hereditary trustee is concerned, he becomes so by way of
succession. As far as the trustee is concerned, it is by way of appointment.
Whenever a vacancy to the office of trusteeship arises, it is to be filled in by
the Government in terms of Section 49. The qualification of trustees is
enumerated under Section 26(1) of the Act. The disqualification enumerated
under clauses (a) to (h) of sub-section (1) of Section 26 can be divided into
two categories. Except clauses (e), (f) and (h), all clauses relate to the
disqualification of a person for being appointed as a trustee of any religious
institution. That disqualification is complete and substantial. On the other
hand, the disqualification enumerated under clauses (e), (f) and (h) are to be
applied depending upon the situation. For example, the disqualification
enumerated in clause (e) of sub-section (1) of Section 26 contemplates that if a
person is interested in a subsisting lease of any property or a contract made
with or any work being done for the religious institution or is in arrears of
any kind due to such religious institution or endowment, he is disqualified from
being appointed as a trustee. The expression “religious institution” employed
therein must necessarily be construed to be a particular institution where he
has got a subsisting lease etc. Clause (f) of that section contemplates that if
a person is employed as a paid legal practitioner on behalf of or against the
religious institution, he is disqualified from being appointed as a trustee in
that institution. The expression “religious institution” employed in that clause
relates to that institution only since if a person is employed as a paid legal
practitioner on behalf of or against the religious institution cannot be a
disqualification for such person to be appointed as a trustee in any other
religious institution. Similarly, clause (h) of that section must also be read
in the manner that if a person has acted adverse to the interest of the
institution, he is disqualified from being appointed as a trustee. The
expression “the institution” should necessarily mean that the act of that person
which was adverse to the interest should be in respect of that institution alone
and not to the other institutions.
11. Mr.K.M.Vijayan, learned senior counsel has submitted that the
expression “the institution” employed in clause (h) should be read along with
the expression “any religious institution” employed in sub-section (1) of
Section 26. In our opinion, the said contention cannot be accepted. The
expression “any religious institution” employed in sub-section (1) of Section 26
is in relation to all the clauses except clauses (e), (f) and (h). If the
provisions are read as suggested by Mr.K.M.Vijayan, even a legal practitioner
employed in a particular religious institution will be disqualified from being
appointed as a trustee in any other religious institution, which interpretation
has no sound reason behind it.
12. That apart, in the given facts and circumstances of the case, whether
the first respondent was appointed in terms of Section 26(1)(h) of the Act or he
succeeded to the vacancy that arose in terms of Section 54 of the Act should be
considered. If a permanent vacancy occurs in the office of hereditary trustee
of a religious institution, the next person in the line of succession shall be
entitled to succeed to the office. This provision entitles the next in the line
of succession to succeed to the office without any consideration by the
authorities in terms of Section 26(1) of the Act. In case of a dispute
respecting the right of succession to the office either be it permanent or
temporary or that when a hereditary trustee is a minor and has no guardian fit
and willing to act as such or there is a dispute respecting the person who is
entitled to act as guardian or when a hereditary trustee is by reason of
unsoundness of mind or other mental or physical defect or infirmity unfit for
performing the functions of the trustee as provided under sub-section (3) of
Section 54 of the Act, the Joint Commissioner or the Deputy Commissioner, as the
case may be, may appoint a fit person to perform the functions of the trustee of
the institution until the disability of the hereditary trustee ceases or another
hereditary trustee succeeds to the office or for such shorter term as they may
direct. The above provision under sub-section (3) of Section 54 shows the
disqualification of the next in the line of succession to succeed to the office
of hereditary trustee, indicating thereby that it is not a fresh appointment and
it is only by way of succession. As against the said order, an appeal is also
provided to the Commissioner in terms of sub-section (4) of Section 54 of the
Act.
13. In addition to the above, an enquiry is also contemplated under
Section 63 of the Act by the Joint Commissioner or Deputy Commissioner, as the
case may be, in respect of a dispute. That apart, there is a power provided
under Section 53 to the appropriate authority to suspend, remove or dismiss any
trustee if he ceases to profess Hindu religion or fails to discharge the duties
and perform the functions of a trustee in accordance with the provisions of the
Act and the rules and so on. Clause (j) of sub-section (2) of Section 53 again
refers to “acts adversely to the interests of the institution” as one of the
disqualification.Therefore, if at all a person is aggrieved by the succession of
hereditary trustee, he could only invoke the provisions of Section 63 and
approach the Joint Commissioner to point out the disqualification enumerated
under Section 53 insofar as it applies to the hereditary trustee and seek for
suspension, removal or dismissal of such hereditary trustee. Factually as well,
as rightly contended by Mr.T.R.Rajagopalan, learned senior counsel, the
appellant has approached the Joint Commissioner only by invoking the provisions
of Section 63 for an enquiry, where the Joint Commissioner has got only limited
jurisdiction and not under Section 53 seeking for suspension, removal or
dismissal of the hereditary trustee on the disqualification enumerated
thereunder.
14. Whenever such succession takes place to the vacancy in the office of
hereditary trustee, the provisions of Section 54 alone would apply and not the
provisions of Section 26, which relate to fresh appointments and that too, only
in respect of a trustee and not to a hereditary trustee. Therefore, the
disqualification provided under Section 26(1), if at all to be relied upon, can
be only in the case of fresh appointment to the office of trustee and not to the
office of hereditary trustee.
15. One more argument was advanced by Mr.K.M.Vijayan by placing reliance
on Section 47(1)(a) to the second proviso, wherein it is stated that the
interest of the public generally should also be taken into consideration in case
of appointment of a hereditary trustee. In our opinion, that section is not
applicable to the case of a hereditary trustee, as he succeeds to the vacancy
caused by the death of an erstwhile hereditary trustee.
16. On a combined reading of the definitions of “trustee” and “hereditary
trustee” and the appointment of a trustee and the disqualification thereunder
for such appointment under Section 26(1) and that of the succession of a
hereditary trustee to the vacancy arising in the office, the only conclusion
that could be arrived is that in case of a hereditary trustee, there is no fresh
appointment by the Joint Commissioner, as it is by way of succession.
Nevertheless, when a person claims to have succeeded to the hereditary
trusteeship, he may be suspended, removed or dismissed only by invoking the
disqualification clause enumerated under Section 53 of the Act and not the
disqualification enumerated under clause (h) of sub-section (1) of Section 26 of
the Act.
17. For the foregoing conclusions, the submissions as to the
interpretation of the expression “the institution” employed in clause (h) of
sub-section (1) of Section 26 and the expression “any religious institution”
employed in sub-section (1) of Section 26 need not be gone into. Hence we are
not inclined to interfere with the order in the writ petition. For all the above
reasons, the writ appeal must fail and accordingly, the same is dismissed.
Consequently, interim stay is vacated and the M.P.(MD) No.1 of 2008 is also
dismissed. No costs.
ss
To
1. The Commissioner
Hindu Religious & Charitable Endowments
Nungambakkam
Chennai 600 034
2. The Joint Commissioner
Hindu Religious & Charitable Endowments Department
Sivagangai