IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :07.06.2010
C O R A M :
THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH
A.S.No.112 of 2000
Sri Varasidhi Vinayakar Temple
at South Ukkadam, Coimbatore
by its Hereditary Trustee
M.Palanisamy Chettiar .. Petitioner/ Appellant
-vs-
K.Natarajan .. Defendant/Respondent
Appeal filed under Section 96 C.P.C. against the judgment and decree dated 29.11.1999 passed in O.S.No.892 of 1993 on the file of the learned Subordinate Judge, Coimbatore.
For appellant : Mr.M.S. Krishnan Senior Counsel
for
M/s. Sarvabhauman Associates.
For Respondent : Mr.N.Manoharan
J U D G M E N T
This appeal is filed by the appellant who was the plaintiff before the lower court against the judgment and decree dated 29.11.1999 in O.S.No.143 of 1993 on the file of learned Subordinate Judge, Coimbatore in dismissing the suit filed by him. The defendant is the respondent in the appeal.
2. For convenience, the parties are referred to as arrayed in the suit.
3. The brief facts of the plaintiff before the lower court would be as follows:
In 1862, the residents belonging to the Vania Samugam, in Coimbatore Town founded, for themselves, the plaintiff temple to perform their religious functions, communal and personal rites. The community used to elect a member of their community as the trustee from the general body members of the Samugam, in its meeting specially convened for the purpose, to manage and run the affairs of the temple. Such elected trustee was entrusted with the management and administration of the temple and is known and styled as hereditary trustee. Such hereditary trustee elected by the general body shall held office for life unless he relinquishes his post or he is removed by the general body for proven misconduct or any other valid reason. This practice has been in vogue ever since the plaintiff temple founded. The founder trustee was one Mr. Ramasamy Chettiar. After the term of Ramasamy Chettiar was over, several other persons were elected from time to time for the office of the hereditary trusteeship R.K.Shanmugam Chettiar a noted industrialist of the city and the first finance minister of the post independent Government of India was one of the elected hereditary trustees in the manner as stated above. He relinquished the office due to his other engagements and in his place S.M.Kuppusamy Chettiar was elected by the general body member of the samugam as the hereditary trustee for the plaintiff temple. Subsequently, when a vacancy arose for the offices of the hereditary trustee, the Samugam convened a special general body meeting when vast majority of the community people assembled and elected R.Kuppusamy Chettiar as the hereditary trustees in the year 1961.
The nomenclature hereditary trustees was given only by convention. No right was either given or conferred or intended to be given or conferred to the legal heirs of any of the hereditary trustee elected in the manner stated above. None of the heirs of the hereditary trustees, also claimed any right of management of the temple. While matters stood thus, the area committee of the Hindu Religious and Charitable Endowment Board of the then State Government of Madras purported to nominate some outsiders as co-trustee along with the then elected hereditary trustee R.Kuppusamy Chettiar. The attempt of the area committee to induct outsiders into the management of the plaintiff temple as claimed to be pursuant to the said committee’s own resolution dated 15.10.1966. The members of the community took exception to the introduction of such outsiders for the temple management and they resisted.
Under the above circumstances, the then elected hereditary trustee R.Kuppuswamy Chettiar, was instructed and directed by the member of the samugam to initiate necessary proceedings against the decision of the area committee, for agitating against the unlawful and unilateral move of the area committee. A petition was filed by R.Kuppusamy Chettiar before the Deputy Commissioner which was however dismissed. Kuppusamy Chettiar thereupon preferred an appeal to the commisioner H.R & C.E Dept Madras. The said appeal also ended in failure. So, Kuppusamy Chettiar under the advice of the samugam members filed the statutory suit for a declaration of his status as the hereditary trustee of the temple and for setting aide the orders of the department officials and for costs. The said suit O.S.No.351 of 1972 was decreed and it file has become final and is in force.
One N. Palaniappa Chettiar, a, member of the samugam, individually and in a representative capacity filed a suit in O.S.No.55 of 1967 on the file of District Munsif of Coimbatore for the relief of injunction restraining the elected hereditary trustee R.Kuppusamy Chettiar from handing over charge to or share the management with the persons purported to be nominated by the department. An interim injunction to the said effect was also obtained by N.Palaniappa Chettiar. Thus, there was no interruption by any one in the management of the temple held by R.Kuppusamy Chettiar as its hereditary trustee. He continued and held the office of the hereditory trusteeship till he died on 19.07.1981.
During the last days of R.Kupppusamy Chettiar who was bed ridden for some time, the defendant who is one of the sons of Kuppusamy Chettiar was looking after the management of the temple under the guidance of his father, not in the capacity as legal heir but only as his representative. As an interim measure, the samugam also approved the arrangement since it was to be only for a temporary period. After the death of Kuppusamy Chettiar, a special general body meeting of the Samugam was convened on 30.05.1982. A large number of community members including the defendant herein attended the said special general body meeting and signed the attendance register. In the said meeting the present occupant of the officer M.Palanisamy Chettiar was unanimously elected as the hereditary trustee of the temple. In pursuance of the said election, the defendant handed over charges and also handed over all the documents, records, accounts etc, which were said to be in the custody and possession of R.Kuppuswamy chettiar, to the newly elected hereditary trustee M.Palaniswamy Chettiar. After Palaniswamy chettiar took charge of the management, the tenants were paying rents to him. Taking note of the changed circumstances, the quantum of rents in some cases were raised which the tenants had readily accepted and paid them. In the year 1986, the plaintiff was informed both by the defendant and also by the tenants that the defendant was appointed trustee of the temple, by the Deputy Commissioner, H.$.&C.E (Admn) Coimbatore. The plaintiff had no notice of any proceedings before the said officer. The order was passed in the year 1986 on a mere letter antidated to 1981 given by the defendant. No explanation was given for having kept the letter without disposal for over 5 years and without taking any action thereon. No oral evidence was recorded and no notice was served on the temple or on the members of the community or on the plaintiff. In view of the seriousness of the situation, the plaintiff was advised to file a writ petition before the High court of Madras for quashing the orders of the Deputy Commissioner. Accordingly, a writ petition was filed which was dismissed as there was an alternative remedy under the Act, the plaintiff had to peruse R.P.No.43/1986 under Sec.21(1) of the Act before the Commissioner H.R.&C.E. Dept, Madras for setting aside the orders of the Deputy Commissioner. The learned Commissioner, on admitting the revision petition granted an order of interim stay of operation of the illegal order passed by the Deputy Commissioner appointing the defendant as trustee. Taking advantage of the illegal order passed by the Deputy Commissioner appointing him as the trustee, the defendant has been collecting the rents from the tenants and is receiving other incomes of the temple also. The defendant had misappropriated the temple fund even after final orders were passed by the Commissioner. The defendant is an impecunious person not even having a permanent residence and hence cannot be permitted further swindle the temple funds any more. The defendant must be prevented from collecting the rents from the tenants. Necessary applications have been filed in the various suits against the tenants for mandatory injunction directing the defendant to pay the rents to the plaintiff or to deposit the same in court. This suit is filed by the plaintiff for possession of the office, injunction to restrain the defendant from collecting the rents, for accounts and handing over the assets of the temple and for costs.
4. The defence raised by the defendant in his written statement would be thus:
Sri Varasidhi Vinayagar Temple situated at South Ukkadam, Coimbatore is not represented by M.Palaniswami chettiar and he is not the hereditary trustee of the said temple. The defendant is the hereditary trustee of the temple who has been so appointed by the general body of the members of the “Vania Samooham” as per the resolution passed by them on 10.02.1991. The defendant is the legally competent trustee to represent the temple. The plaintiff has no ‘locus standi’ to represent the temple and to claim that he is the hereditary trustee of the temple. The suit therefore, has to be dismissed in limine as not maintainable.
The defendant submits that A/M Varasidhi Vinayagar koil was founded 150 years ago by the members of the Vania Vysia Samooham of Coimbatore town for their spiritual benefit. The trustee of the temple is chosen by the members of the Vania Samooham itself from among its members to manage the temple. The trustee so chosen will hold office for his life time, unless he resigns voluntarily or until he is removed by the members of the said samooham. One Ramaswami Chettiar was the founder trustee of the temple and after him several leading persons of the Samooham were chosen as the trustees of the temple. In that line one R.Kuppuswami Chettiar was the last appointed trustee, who is the father of the defendant, R.Kuppuswami Chettiar died in the year 1981 and after his death, the affair of the temple was looked after by the defendant except during a short period of about 4 years from June 1982 to February 1986, when the said Palaniswami chettiar was authorised by the defendant to collect rents from the tenants who are in the occupation of the temple’s property and spent the same for the benefit of the temple. The defendant gave such authorization to Palaniswami Chettiar because of some domestic problem in the family of the defendant.
The defendant further submits that he is managing the affairs of the temple directly from the year 1986 onwards. The members of the Vysia Vania Samooham, Coimbatore in appreciation of his good administration and management of the temple had chosen him as the hereditary trustee of the temple as per the resolution dated 10.02.1991. The temple owns properties at Rangai gowder street, South Ukkadam which are mainly shops and residential buildings and they had been leased out to several tenants. The defendant is realising the income and paying taxes and utilising the income for the daily pooja expenses of the temple. The defendant is maintaining regular accounts for the income and expenditure of the temple. The defendant is managing the day to day affairs of the temple. The defendant is the hereditary trustee of the temple as per custom and usage of the community. He is entitled to hold and to continue the office of the trusteeship of the temple. The plaintiff cannot dislodge the defendant from the office of the trusteeship by claiming false right of trusteeship and by making untenable and improper claims. The plaintiff has no right to seek the relief of possession of the office of trusteeship and of the properties of the temple. He is also not entitled to get the other reliefs claimed in the plaint as the plaintiff has no right of management of the temple.
The defendant submits that the most of the allegation made in paras 3 to 6 regarding the appointment of the trustees of various litigations referred to therein shall be strictly proved. The defendant’s father R. Kuppuswami Chettiar’s hereditary trusteeship right was recognised by the Sub court in 851/72 as referred to in para 5 of the judgment. Subsequently the defendant have been chosen as the hereditary trustee and therefore the plaintiff cannot question the defendant’s right to continue as the hereditary trustee of the temple.
The allegations made by the plaintiff that the general body members of the samoogam elected him as the trustee and that the plaintiff known and styled as hereditary trustee is not correct. The allegations to the effect of the plaint that the legal heirs of the hereditary trustee do not have any right of trusteeship is not correct. As per the decree and judgment passed in the suit in O.S.No.351 of 1972 on the file of sub court, coimbatore was declared as the hereditary trustee of the temple. The suit in O.S.No.55 of 1967 against Kuppuswamy chettiar shall be proved strictly. The other allegations to the effect that Kuppuswamy chettiar continued and held the office of the hereditary trusteeship till he died on 19.07.1981 is not correct. The said Kuppuswamy chettiar could not look after the affairs of the temple from the month of May 1979 due to his sickness and so he asked the defendant to look after the affairs of the temple as the trustee of the temple. Therefore, the defendant was managing the affairs of the temple since May 1979.
The defendant was looking after the management of the temple under the guidance of his father and not in the capacity of a legal heir but only as his representative is not correct. The other allegations that as an interim measure the samugam also approved this arrangement since it was to be only for a temporary period is equally false. The defendant is holding the office of temple as its hereditary trustee permanently. The other allegations that a special general body meeting of the samugam was convened on 30.05.1982 and that the plaintiff was unanimously elected as the hereditary trustee for the temple are not correct. Further allegations that in pursuance of the said election the defendant handed over charge and also handed over all the documents, records, accounts etc to the plaintiff is also false. The allegations that, Palaniswami chettiar had been managing the affairs of the temple after his alleged taking possession of the records etc is not correct. The defendant could not look after the affairs of the temple due to his domestic problems. Hence the defendant approached the plaintiff to act as his representative and to do all acts on behalf of him in order to manage the temple effectively. Hence, the plaintiff was allowed to do all such things necessary for running the office of the temple as the representative of the defendant from June 1982 to March 1986. Subsequently from March 1986 the defendant himself is continuing to manage the affairs of the temple as its hereditary trustee at all point of time. Even assuming but without admitting that the samugam elected the plaintiff as the trustee of the temple on 30.05.1982, the alleged election of the plaintiff as trustee of the temple is not legally valid, because the said Coimbatore Vaniya Samugha Sangam did not function on the date of alleged election of the plaintiff as the trustee of the temple. The said samugam became defunct in 1978 itself. If at all any such proceedings of the samugam was conducted on 30.05.1982, it is absolutely improper and unenforceable.
The defendant further submits that as stated above at the request of the defendant, the plaintiff was looking after the affairs of the temple, as his representative for a short period and even in that period viz. from June 1982 to March 1986 the plaintiff misappropriated the income of the properties of the temple. Therefore, the defendant directly managed the affairs of the temple from March 1986 onwards. Further the defendant is collecting the rents from the tenants of the temple properties and pending for the poojas and festivals of the temple and for its properties as its hereditary trustee of the temple. The members of Vaniya Vysia Samugam also elected the defendant as the hereditary trustee of the temple for his life time in the meeting held on 10.02.1991. The resolution passed by the said Samugam is valid and binding on the members of the Samugam. Therefore, the election of the defendant as the hereditary trustee of the temple is valid. The defendant is the authorised person to act as the hereditary trustee of the said temple for his life time as per custom and usage of the community. The defendant has also been declared as the hereditary trustee of the plaintiff temple for his life time by a decree and judgment passed in O.S.No.1894 of 1991 on the file of the District Munsif, Coimbatore. The entire allegations made by the plaintiff to the effect that the defendant has been misappropriating the funds are false and highly defamatory. The defendant is maintaining proper and regular accounts for managing the affairs of the temple. The defendant reserves his right to take suitable legal action against the plaintiff for making such false and defamatory allegations. The defendant is not liable to place any accounts before the plaintiff since he is not legally competent person to call for the records of the temple. The said Palaniswamy chettiar has no ‘locus standi’ to claim possession or has no ‘locus standi’ to call for the accounts of the temple. There are no merits in the suit and it may be dismissed with costs.
5. The trial court had examined the plaintiff as P.W.1 and admitted Exs.A.1 to A.14 on the side of the plaintiff and also examined the defendant as D.W.1 and admitted Ex.P.1 to P.3 on the side of the defendant. The commissioner’s report and the sketch were also admitted by the lower court as Ex.C.1 and Ex.C.2. The lower court had appraised the evidence placed before it and had come to the conclusion of dismissing the suit. Aggrieved by such dismissal the plaintiff has preferred this appeal.
6. On the trial the lower court had framed the following issues for trial and entered trial.
1. Whether the suit filed by the plaintiff is not maintainable before civil court?
2. Whether the defendant alone is the trustee o f the suit temple?
3. Whether the selection of Palaniswami chettiar as hereditary trustee was not valid?
4. Whether the said Palaniswami chettiar acted as representative of the defendant at any point of time?
5. Whether the defendant was elected as hereditary trustee on 10.02.1991 by Vaniya Vysia community?
6. Whether the judgment passed by the District Munsif Coimbatore in O.S.No.1894/1991 is binding upon the plaintiff or any other person who is selected as hereditary trustee?
7. Whether the defendant is not liable to render accounts of the temple as sought for?
8. To what relief the plaintiff is entitled for?
7. Heard Mr.M.S. Krishnan, learned Senior counsel for M/s. Sarvabhauman Associates appearing for the appellant and Mr.N.Manoharan, learned counsel appearing for the respondent.
8. On a careful perusal of the pleadings and evidence adduced on either side, judgment and decree of the lower court the grounds raised in the appeal memo and on appearing the arguments advanced on either side the following point emerges for consideration in this appeal.
1. Whether the plaintiff is entitled to act as hereditary trustee of the suit temple as sought for by him?
2. Whether the defendant was elected as hereditary trustee by the Vaniya Vysia community on 10.02.1991 and if so whether the defendant is entitled to act as hereditary trustee?
3. Whether the defendant is liable to handover possession of the office of hereditary trusteeship, the funds and properties of suit temple to the plaintiff?
4. Whether the defendant is liable to render proper account in respect of temple management to the plaintiff?
5. Whether the plaintiff is entitled for injunction against the defendant as sought for?
6. Whether the judgment and decree passed by the lower court are liable to be set aside and is the appeal allowable?
7. To what relief the appellant is entitled for ?
9. Learned Senior counsel Mr.M.S.Krishnan appearing for the appellant would submit in his argument that the suit temple vis., Arulmigu Varasidhi Vinayagar temple, South Ukkadam, Coimbatore was established by the Vaniya Vysia Samugam of Coimbatore in or about 1862 and the said community used to elect a member of their community as trustee from general body members of the samugam in its meeting specially convened for the purpose to manage and run the affairs of the temple in the name styled as hereditary trustee and he shall continue to hold office for his life time unless he relinquishes his post or he is removed by the general body by proved misconduct or any other reason. He would further submit that this practice was in vogue ever since the plaintiff temple was founded and certain important persons like R.K.Shanmugam chettiar a noticed industrialist and the first finance minister of the Union of India was one of the hereditary trustee and in that manner one R. Kuppusamy chettiar was elected as hereditary trustee in the year 1961 and he continued to be the trustee of the temple till 1981 till his death and thereafter in the year 1982 in the specially convened general body meeting in 30.05.1982 the plaintiff Mr. Palanisamy chettiar was elected as hereditary trustee unanimously and the defendant having attended the said general body meeting and signed in every resolution and the attendance register had clandestinely come forward with the objection that he was elected subsequently in the year 1991 after a long gap of ten years.
10. He would further submit that the entire reasons of the lower court in coming to the conclusion that the plaintiff Palanisamy chettiar is not the lawfully elected member of the hereditary trustee by Vaniya Vysia Samugam is erroneous and is not in accordance with the evidence and circumstances of the case. He would also submit that the lower court had not appraised the evidence properly but had come to an erroneous conclusion. No doubt true that the then hereditary trustee R.Kuppusami chettiar who was the father of the defendant had filed a suit in O.S.No.351/1972 against the dismissal orders passed by the Deputy Commissioner as well as the Commissioner in the application filed by the then trustee to desist appointing third persons as trustees and the lower court had set aside both the orders of the Deputy commissioner as well as the commissioner on 06.09.1974. Therefore, the issue of appointing a hereditary trustee by the Vaniya Vysia Samugam of Coimbatore had been upheld by the judgment of lower court in O.S.No.351 of 1972 produced as Ex.A.1 and accordingly the plaintiff had taken the management of the suit temple and the properties belonging to the temple and he was managing them and was submitting several statements of accounts to the department periodically. He would further submit in his argument that the said fact was also proved through the minutes books produced in Exs.A2,A8 and Ex.A13 and the order passed by the commissioner dated 05.11.1990 in R.P.No.43/1986 is also produced as Ex.A.10. He would further submit that the said order produced in Ex.A.10 had set aside the order of Deputy commissioner passed in an application filed by the defendant in a clandestine manner to recognise him as a hereditary trustee before the Deputy Commissioner of HR&CE u/s.54 (1) of the Act as if the hereditary trusteeship of the suit temple would devolve as per the legal heirship of the previous hereditary trustee. He would further submit that the said steps taken by the defendant filed before Deputy Commissioner was wrongly recorded as per his request in the year 1986 and on the strength of that order the defendant had taken possession and management of the suit temple and the properties from the plaintiff which is not valid in law, especially when the said order of the Deputy commissioner has been rightly set aside by the commissioner in his order dated 05.10.1990 in Ex.A.10.
11. He would further submit in his argument that the lower court had lost sight of the findings given in Ex.A.10 and its effect on the defendant. Moreover, he would submit in his argument that the lower court had strongly relied upon the validity of the meeting held on 30.5.1982 by holding that on the said date the said Vaniya Vysia Samugam was not functional one but it was defunct due to the certain requisites under Societies Registration Act which is not correct since the notification was issued only in 1984. During the said time on 30.05.1982 the said samugam was not declared to be defunct one and therefore, the finding of the lower court that the election of the plaintiff M.Palanisamy chettiar as hereditary trustee was not a valid one could not be correct.
12. He would also submit that lower court had grossly erred in holding that the said meeting was not binding upon the defendant despite he attended the meeting spoken about the future programmes to improve the temple and signed the resolution after unanimously elected the plaintiff, M.Palanisamy chettiar as hereditary trustee. He would draw the attention of the court to the signatures subscribed by him in the minutes books, Ex.A2, and A.13. He would also refer to the court regarding the admission of D.W.1 in attending the said meeting. He would again submit in his argument that even in the suit filed by the defendant in O.S.No.1894/1991 on the file of District Munsif, Coimbatore the defendant as plaintiff had categorically admitted the process of election of hereditary trusteeship and the tenure of hereditary trusteeship and therefore, the defendant is estopped from questioning the validity of the general body meeting held on 30.05.1982 electing the plaintiff as hereditary trustee. He would also submit that the subsequent general body meeting cannot elect the defendant as hereditary trustee after a long gap of 9 years on 10.02.1991 without the resignation of the plaintiff Palanisami chettiar or without any removal from the trusteeship or for any other reason during his life time.
13. He would also bring it to the notice of this court that the lower court had not answered this point but had evaded without answering. He would also submit in his argument that the plaintiff was in possession and management of the suit temple and its properties from 1982 to 1986 only on the foot of his election as hereditary trustee by the general body meeting and the lower court had not applied its mind to find the truth but had evaded to answer the capacity in which the plaintiff was in possession and the management of temple and its properties. Therefore, he would request the court that the order passed by the Commissioner in Review petition produced in Ex.A.10 in which the defendant is also one of the parties will bind the defendant and the subsequent general body meeting stated to be held on 10.02.1991 would not be valid one in view of the earlier election of the plaintiff held on 30.05.1982 and therefore the judgment and decree passed by the lower court are erroneous and are liable to be set aside.
14. He would further submit in his argument that the plaintiff who was already continuing as hereditary trustee of the suit temple has to be given with the management and administration of the temple and properties by the defendant who is in an unlawful possession and management of the said properties and the suit has to be decreed as prayed for by the plaintiff. The lower court instead of decreeing the suit had come to a wrong conclusion and the reasons mentioned in the judgment of lower court are exfacie not sustainable and therefore he would request the court to allow the appeal and to decree the suit filed by the appellant before the lower court.
15. Learned counsel appearing for the respondent Mr.N.Manoharan would submit in his argument that the appellant figured as plaintiff had miserably failed to prove his case and he cannot pick hole from the weakness of the defendant’s case and ask reliefs upon them. He would submit in his argument that the defendant was validly elected as a hereditary trustee by the general body of the Vaniya Vysia Samugam on 10.02.1991 and according to the judgment made in O.S.No.351/1972 the claim for appointment of hereditary trustee of the suit temple has been promptly taken over by him even though he continued and in the management from the date of death of his father Kuppusamy chettiar in the year 1981 and thereafter, he became the hereditary trustee from the date 10.02.1991 and now continuing as the hereditary trustee of the temple and the plaintiff who is not a hereditary trustee of the temple cannot seek for the management or possession of properties from the defendant. He would also submit in his argument that the alleged general body meeting stated to have been held on 30.05.1982 was not proper and the society was not functional at that time due to some flaws under the Societies Registration Act and therefore the subsequent meeting held on 10.02.1991 electing the defendant as hereditary trustee would prevail upon the same. He would also submit in his argument that the evidence of D.W.1 would not in any place admit the participation of the meeting held on 30.05.1982 and therefore there is no question of any estoppel against the defendant. He would again submit in his argument that the plaintiff did not prefer any appeal against the order of the Registrar of Societies holding the society defunct and therefore the meeting said to have been held on 30.05.1982 cannot be held as valid general body meeting. Further, he would submit in his argument that the trial court had recorded the evidence of both parties and had studied the demeanour of both parties and had come to a conclusion of appreciating their evidence and the said judgment of the lower court need not be set aside on the factual aspect unless there is a glaring omission and defect in the judgment of the lower court. He would further submit that the suit filed by the plaintiff is not sustainable in view of the section 108 of the HR&CE Act.
16. He would further submit in his argument that the judgment of Hon’ble Apex court reported in (2007) 4 SCC 163 in between Chinthamani Ammal vs. Nandagopal gounder and another, for the principle that the First appellate court should not have reversed the finding of the trial court without assigning cogent reasons. Therefore, he would request the court that the judgment and decree of the lower court which dealt with every point after noting the demeanour of witnesses and considered the facts and circumstances of the case and therefore they are not liable to be set aside and accordingly the appeal may be dismissed.
17. I have given anxious thoughts to the arguments advanced on either side.
18. The scheme of election to hereditary trusteeship of the suit temple Arulmigu Varasidhi Vinayagar temple, South Ukkadam, Coimbatore as stated by the plaintiff is an admitted fact. According to the age old custom followed from 1862 onwards the Vaniya Vysia Samugam of Coimbatore had followed the selection of hereditary trustee through election in a specially convened general body meeting of the Vaniya Vysia Samugam and selected the hereditary trustee and accordingly the elected hereditary trustee will hold the office and the management of the suit temple and its properties till his life time unless he is removed for any proved charges or any other charges or by his resignation or his death and in such event another general body meeting will be held for electing a new hereditary trustee for the suit temple. However, the said system was attempted to be interfered by the HR&CE by appointing an Area committee consisting some other third parties as administrators. The then R. Kuppusamy chettiar filed a suit in O.S.No.351/1972 questioning the same against HR&CE and it was decreed and it is no doubt that the said judgment and decree passed in the said suit became final which is produced in Ex.A.1. The said fact has also been admitted by the defendant in his evidence and also in the documents produced by him. The defendant also placed reliance on the scheme in the proceeding filed by him in O.S.No.1894/1991 on the file of District Munsif Court, Coimbatore produced as Ex.A.9. The defendant had further relied upon the said scheme and he is putting forth that he became the hereditary trustee as elected in the general body meeting held on 10.02.1991. Formerly, he had applied to the Deputy commissioner of HR&CE to recognise him as the hereditary trustee since he was one of the legal heirs of R.Kuppusamy chettiar who died in the year 1981 and the same was accepted by the Deputy commissioner of HR&CE in D.Dis.No.7240/1986 dated 27.05.1986 by recording the succession of the respondent. The said order of the Deputy commissioner of HR&CE dated 27.05.1986 was questioned by the plaintiff before the High court in writ petition and this court had directed to file appropriate appeal or revision before the authorities concerned and accordingly the plaintiff filed the revision petition in R.P.No.43/1986 before the commissioner of HR&CE against the order of Deputy commissioner in recording the succession of the respondent(defendant) as hereditary trustee and had set aside the order. The said order is produced as Ex.A.10 by the plaintiff. In the said order the Commissioner of HR&CE had categorically upheld the scheme of election of hereditary trustees through the general body meeting of the Vaniya Vysia Samugam of Coimbatore. It is also categorically mentioned that the hereditary trusteeship of the suit temple would not devolve upon any individual on the basis of legal heirship. In the said Revision petition claiming succession to the trusteeship through legal heirship was not accepted and the claim of the defendant to that effect was set aside. The Deputy commissioner HR&CE has passed a consequential order in pursuance of Ex.A.10 order of commissioner and it is produced as Ex.A.6. Argument of the learned senior counsel that the continuance of possession of the management and trusteeship of the suit temple by the defendant was held unlawful by the commissioner and the defendant was in unlawful possession of the trusteeship under the guise of Deputy commissioner’s orders despite the plaintiff was validly elected to be the hereditary trustee through 30.05.1982 general body meeting has some force.
19. Now while considering as to the validity of the general body meeting convened on 30.05.1982 according to the contention raised by the respondent, we have to see whether the defendant could agitate the order passed by the Commissioner of HR&CE in Ex.A.10 was not questioned by the defendant even though he was a party in the said proceeding and it became final and therefore it is binding upon him. In the said order, it has been categorically found that the plaintiff was elected in the general body meeting held on 30.05.1982 to be the hereditary trustee of the suit temple. In the said order it has been further held that the defendant had subscribed his signature both to the resolution and to the meeting. The communication sent by the samugam to the department in Ex.A.7 would show that the defendant had also spoken in the said meeting. As per the resolution dated 30.05.1982 the plaintiff was unanimously elected as the hereditary trustee of the suit temple. Moreover, the defendant in his evidence had not denied the signature in Ex.A.12 and A.13 minutes books at the earliest point of time but he did it only after he had been recalled subsequently on 20.02.1999. No doubt true that he had denied the signature found in Ex.A.12 and A.13 as not belonging to him. The evidence so adduced by D.W.1 denying the signature found in Ex.A.12 and 13 cannot be sustained because he had not taken any steps to set aside the order passed by the commissioner in Ex.A.10. It has been categorically found by the Commissioner of HR&CE the Vaniya Vysia Samugam convened the meeting on 30.05.1982 and had chosen the plaintiff as the hereditary trustee of the suit temple and the participation of the defendant in the said meeting was also upheld. In A.10 order the Commissioner has categorically referred the signature subscribed by D.W.1 in the minutes book of the Vaniya Vysia Samugam therefore, the evidence adduced by D.W.1 before the lower court on 20.02.1999 is not a trust worthy evidence. Moreover, the proceedings of the Deputy commissioner recognising him as hereditary trustee on the death of his father on succession was due to the application made by the defendant to the Deputy commissioner. The defendant who was relying upon the scheme of election through general body meeting of Vaniya Vysia Samugam had how tried to circumvent the said scheme by seeking the method of appointing him as hereditary trustee through succession which is not in accordance to the scheme of appointment of hereditary trustee in Vaniya Vysia Samugam.
20. Apart from that, the election of the defendant as hereditary trustee in the meeting said to have taken place on 10.02.1991 as in Ex.B.2 minutes book had taken place only after a period of 10 years and there is no explanation given by the defendant for convening the general body meeting, immediately after the death of his father the then hereditary trustee. The legal proceedings taken by P.W.1 as evidenced through Ex.A3,A4, A5 would go a long way to show that the plaintiff had continued as a hereditary trustee of the suit temple during the said period. The lower court had not considered the said evidence and the aforesaid documents produced by the plaintiff in order to decide on what capacity the management of the suit temple was held by the plaintiff in between the years 1982 to 1986 but had left the said point undecided.
21. According to the submission made by the learned counsel for the respondent/defendant that the facts decided by the trial court should not normally be disturbed by the first appellate court unless there is a grave error in the said finding. For that point he had relied upon the judgment of Hon’ble Apex court reported in (2007) 4 SCC 163 in between Chinthamani Ammal vs. Nandagopal Gounder and another. The relevant portion as found in para 19 runs as follows:
“19. In Madholal Sindhu v. Official Assignee of Bombay (AIR 1950 FC 21) it was observed:
“It is true that a judge of first instance can never be treated as infalliable in determining on which side the truth lies and like other tribunals he may go wrong on questions of fact, but on such matters if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at, the appeal court should not lightly interfere with the judgment.”
In the light of the aforesaid jugment of Apex court when the judgment of the lower court has been approached, this court could find that the lower court has not considered the binding nature of Ex.A.10 against the defendant and the documents produced in Ex.A3,A4 and A5 and the attitude of the defendant in attempting to violate the scheme settled in Vaniya Vysia samugam by preferring the application before the Deputy commissioner HR&CE u/s. 54 of the Act to recognise him as the hereditary trustee through succession to his father. All these things have not been considered by the lower court when the hereditary trusteeship of the plaintiff was recognised by earlier proceedings before the Commissioner and the said order was not challenged by the defendant before any court of law. Moreover the lower court has not considered the possession of suit temple and its properties by the plaintiff as hereditary trustee from 1982 to 1986 till he was taken away from the said office by the defendant under the guise of the order passed by the Deputy commissioner on the application filed by him to recognise him under Sec.54 of HR&CE Act as hereditary trustee by succession. Therefore, these vital facts in order to find the truth, were not considered and appreciated by the lower court. Therefore, the judgment of lower court would not be attracted or covered by the judgment of Hon’ble Apex court cited above.
22. As regards the maintainability of the suit the lower court had come to a conclusion that the suit was maintainable in accordance with law and as rightly pointed out by the learned Senior counsel, the respondent has not preferred any cross appeal on the said point. However, it has been already found that the plaintiff was continuing as hereditary trustee as per the general body meeting held on 30.05.1982 and thereafter, he was found to have been dispossessed with the strength of the orders of Deputy commissioner of HR&CE as aforesaid. It is not the case of the defendant that the plaintiff was removed from trusteeship and thereafter he had convened the meeting on 10.02.1991 to elect him as hereditary trustee. Moreover the plaintiff has not resigned the post or he has been disqualified for any in-capacity. Therefore the alleged meeting dated 10.02.1991 could not be necessitated for election or selection of new hereditary trustee and it has been created for the purpose of defeating the rights of the plaintiff. Therefore, the right of hereditary trusteeship which was conferred on the plaintiff was sought to have been restored in this suit. Therefore, the arguments advanced by the learned counsel for the respondent that the suit was not maintainable in accordance with law cannot be sustainable.
23. For the foregoing discussion held above, it is found that the plaintiff is found to be the hereditary trustee to the suit temple as elected under the general body meeting held on 30.05.1982 and is entitled for management of the said temple and its properties. Similarly the election of the defendant through the general body meeting said to have been held on 10.02.1991 was not found to be true and valid, since the previous hereditary trustee is still functioning. Therefore, the points framed in 1 and 2 are decided in favour of the plaintiff.
24. Admittedly the plaintiff was not in management from 1986 in the office of the trusteeship and the defendant was holding the management of the suit temple from 1986 onwards. The said finding was reached by the Commissioner of HR&CE in the quasi judicial proceedings against the defendant. The defendant did not prefer any steps to set aside the order still he did not handover the trusteeship and the management of the suit temple and properties to the plaintiff. On the other hand he had claimed to be the hereditary trustee under the colour of 10.02.1991 of general body meeting of Vaniya Vysia Samugam, Coimbatore during the life time of the hereditary trustee elected under the general body meeting on 30.05.1982. The evidence of D.W.1 would also show that he is in custody of all the accounts and management of the temple and its properties. He admits in his evidence that he is ready to submit the account of suit temple and the properties and their income. In the earlier points the management and possession of the suit temple and its properties held by the defendant from 1986 onwards was found to be unlawful. Therefore, the defendant is liable to render proper and true account to the plaintiff as asked for by him.
25. In view of the findings of this court reached above the judgment and decree of the lower court in finding that the plaintiff is not entitled for any reliefs sought for by him are liable to be set aside. The defendant who is not a hereditary trustee of the plaintiff temple is directed to handover possession of the management and administration of suit temple and its properties to the plaintiff. Accordingly this point is also decided in favour of the plaintiff.
26. For the foregoing reasons and in view of the finding reached in the earlier discussion the plaintiff is found to be the hereditary trustee of the suit temple and its properties elected n the General body meeting held on 30.05.1982 of the Vaniya Vysia Samugam. The defendant who is not found to be the hereditary trustee of the temple is liable to be injuncted from disturbing the possession of the plaintiff in the management and administration of the plaintiff as hereditary trustee of the suit temple and its properties. Accordingly all the points framed are decided in favour of the plaintiff.
Point 6: In view of my findings reached in the aforesaid points,the judgment and decree of the lower court are not in order and accordingly they are set aside and the appeal is allowed and thereby the suit filed by the plaintiff is decreed as prayed for with costs. In fine, the appeal is allowed with costs and thereby the judgment and decree of the lower court are set aside and the suit filed by the plaintiff is decreed as prayed for. The time for handing over the possession of properties, management and administration of suit temple is one month from the date of receipt of a copy of this order.
kpr
To
The Subordinate Judge
Coimbatore