{"id":46533,"date":"2004-05-07T00:00:00","date_gmt":"2004-05-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commissioner-hindu-vs-vedantha-sthapna-sabha-on-7-may-2004"},"modified":"2017-07-07T06:38:00","modified_gmt":"2017-07-07T01:08:00","slug":"commissioner-hindu-vs-vedantha-sthapna-sabha-on-7-may-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commissioner-hindu-vs-vedantha-sthapna-sabha-on-7-may-2004","title":{"rendered":"Commissioner, Hindu … vs Vedantha Sthapna Sabha on 7 May, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Commissioner, Hindu … vs Vedantha Sthapna Sabha on 7 May, 2004<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Doraiswamy Raju, Arijit Pasayat.<\/div>\n
           CASE NO.:\nAppeal (civil)  5093 of 1998\n\nPETITIONER:\nCommissioner, Hindu Religious,and Charitable Endowment(Admn.), Madras & Anr.\n\nRESPONDENT:\nVedantha Sthapna Sabha\t\n\nDATE OF JUDGMENT: 07\/05\/2004\n\nBENCH:\nDORAISWAMY RAJU & ARIJIT PASAYAT.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
ARIJIT PASAYAT, J.\n<\/p>\n
\tA Division Bench of the Madras High Court by the
\nimpugned judgment held that the respondent was entitled
\nto hold office of trusteeship in Sri Lakshmi Hayavadhana
\nPerumal Temple in Nanganallur, Saidaret Taluk as
\nhereditary trustee.  The Commissioner of Hindu Religious
\nand Charitable Endowment and the Deputy Commissioner,
\nthe appellants herein question correctness of the
\njudgment.\n<\/p>\n
Background facts giving rise to the present appeal
\nneed to be noted in some detail.\n<\/p>\n
Respondent-Sabha filed an application under Section
\n63(b) of the Tamil Nadu Hindu Religious and Charitable
\nEndowment Act, 1959 (in short ‘Act’), before the Deputy
\nCommissioner (appellant no.2 in the present appeal) for
\ndeclaration that the Sabha is hereditary trustee of the
\nreligious institution. The application was dismissed by
\nthe Deputy Commissioner. Since the dismissal was upheld
\nby the Commissioner (the appellant no.1 herein) against
\nthe rejection of the application, the respondent as
\nplaintiff filed a statutory suit OS No.257\/1981 before
\nSubordinate Judge, Chengleput. Present appellants as
\ndefendants took the stand that the suit temple is a
\npublic temple constructed out of the collections
\nincluding collections from the members of the Sabha and
\nthe grant of funds from the Government, that it is not
\nfor the benefit of Sabha members only but for the
\nbenefit of the Hindu public at large, and thus the
\ntemple is one covered under Section 6(20) of the Act.
\nThe Trial Court rejected the claim of the plaintiff by
\nholding that it is not entitled to be declared as
\nhereditary trustee of the suit temple. At the same time
\nsince the Sabha had initiated and taken all efforts to
\nconstruct the temple and manage it in the interest of
\ngeneral worshipping public, it would be appropriate to
\nhave one or more of the representatives of the Sabha, in
\nthe Board of Trustees as the authorities may deem fit.
\nAggrieved by that the plaintiff preferred an appeal (AS
\nNo. 240\/84) which was also dismissed by a learned Single
\nJudge of the Madras High Court. The learned Judge also
\nhighlighted the difference inherently inbuilt in the
\ndefinition of ‘hereditary trustee’ in Section 6(11) and
\n‘trustee’ in Section 6(22) of the Act. Letters Patent
\nAppeal was filed by the Sabha in L.P.A. No. 275\/1995
\nwhich was allowed and the judgment therein is the
\nsubject matter of challenge in the present appeal. The
\nDivision Bench in the High Court was of the view that
\nthe founder being the Sabha, the entire administration
\nof the temple is vested in the Sabha only consisting of
\nits office bearers and they alone are entitled to
\nadminister the temple and its properties.\n<\/p>\n
 \tCase of the plaintiff in a nutshell is as follows:\n<\/p>\n
\tThe Sabha itself was formulated for the purpose of
\nconstructing a new temple for the benefit of the members
\nof the said Sabha and the Sabha was registered under the
\nTamil Nadu Societies Registration Act, 1975 (in short
\nthe ‘Societies Act’). The objects of the Sabha are to
\npromote spiritual pursuits of Vashistadvaitha philosophy
\nas propounded by Sri Bhagavath Ramanuja and Sri Vedantha
\nDesika, to conduct discourses and arrange for lectures,
\nto conduct classes in Vadas, Upanishads, Divyaprabandas
\nand Stothrapathas relating to Vashishtadvaitha faith and
\nphilosophy, to work for cordial relationship and
\nunderstanding among persons having different religions
\nand also among persons practising different religions to
\nmake representations to Government and other leading
\nreligious institutions in connection with any religious
\nissue of public importance, to secure representations on
\ncommittees appointed by Government and other bodies
\nrelating to the objects of the Sabha, to construct own
\nand maintain temples and other places of worship,
\nMantapams and the like to publish magazines, journals
\nand other literatures; to establish and maintain
\nlibraries and reading rooms and to organise seminars,
\ngroup discussions and conferences and raise charities,
\nfund for the purpose of giving charities, etc. The
\nobjects of the Sabha consist of both religious and
\nsecular, its main object was to construct a temple for
\nthe exclusive worship by its members.  The land where
\nthe institution in question is situated, was donated by
\none P.S. Srinivasan of St. Thomas Mount. Its total
\nextent is 1-3\/4 grounds.  The said P.S. Srinivasan is
\nalso an active member of the Sabha.  The members of the
\nSabha collected nearly Rs.2 lakhs and constructed the
\ninstitution in question.  The Sabha has also received a
\nsum of Rs.25,000\/- from the appellants as Government
\ngrant.  The construction was commenced in the year 1968
\nand completed in the year 1972. Kumbabishegam was
\nperformed during 1972 from and out of the collection
\nmade amongst the members of the Sabha. The institution
\nin question has no property of its own.  The day-to-day
\naffairs of the institution are being looked after by the
\nSecretary of the Sabha, who is being elected by its
\nmembers from time to time. The members of the Sabha used
\nto donate liberally for the maintenance of the
\ninstitution. The institution has not received any
\ncontribution from outsiders either for its construction
\nor for its day-to-day maintenance. It is the personal
\nproperty of the Sabha consisting of over 120 members.
\nSince the institution is the personal property of the
\nSabha, the Sabha has every right to manage and maintain
\nthe affairs of the institution as its founder-cum-
\nhereditary trustee. The Sabha is represented by its
\nSecretary. A petition was filed under Section 63(b) of
\nthe Act before the 2nd appellant for a declaration that
\nthe respondent is the hereditary trustee of the
\ninstitution. That application was dismissed by the 2nd
\nappellant, in O.A. No.69 of 1977. The evidence let in
\nand the materials placed before the 2nd appellant have
\nbeen analysed and considered elaborately to arrive at
\nthe finding that the temple has been constructed and is
\nmaintained thereafter also from funds mobilised from
\npublic and, therefore, it is meant for Hindu worshipping
\npublic as well. As against such dismissal, the
\nrespondent filed A.P. No. 174 of 1978 before the 1st
\nappellant under Section 69(1) of the Act, which was also
\ndismissed by the 1st appellant. The reasonings
\ncontained in those orders which are adopted by the
\nappellants for coming to the conclusion that the
\nrespondent cannot be the hereditary trustee are said to
\nbe baseless. The Secretary of the Sabha elected
\nperiodically, it is asserted, is entitled to hold the
\noffice of trusteeship in respect of the temple in
\nquestion. The trusteeship accordingly is claimed to be
\nonly a hereditary one.  Hence the suit.\n<\/p>\n
\tThe suit was resisted by the appellants as
\ndefendants. According to them, the suit temple is a
\npublic temple constructed out of public collections
\nincluding from the members of the respondent Sabha who
\nare members of the public. The institution is for the
\npurpose of Hindu public at large. It is not relevant to
\nconsider the objects of the Sabha. The suit temple is
\nnot for the exclusive worship of the members of the
\nrespondent only. It is a temple as defined in Section
\n6(20) of the Act. In any event, the suit temple has been
\ndedicated to public for the benefit of the public.  The
\npublic used this temple as of right.  The site has also
\nbeen taken on lease. Government grant of Rs.25,000\/- was
\nalso sanctioned for the construction of the temple.  All
\nexpenses for the construction of the temple and for
\nKumbabishegam and the day-to-day expenses thereafter are
\nmet out of public contributions as well as receipts from
\nHundial installed in the temple.\n<\/p>\n
\tAccording to the appellants, the allegation of the
\nrespondent that the temple does not own any property is
\nnot correct.  Public at large, other than the members of
\nthe respondent Sabha, have contributed liberally for the
\nconstruction and for day-to-day expenses after the
\nKumbahishegam.  It is not the personal property of the
\nmembers of the Sabha.  The respondent has no right to be
\ndeclared as the hereditary trustee.  There is a Hundial
\nin the suit temple and the public contributes liberally
\nin it. The petition filed by the respondent under
\nSection 63(b) of the Act has been duly considered by the
\n2nd appellant and was rightly dismissed by him, which
\nwas confirmed on appeal by the 1st appellant.  The
\nreasonings in both the orders are not liable to be set
\naside.  The respondent Sabha was never the hereditary
\ntrustee of the temple in question and it cannot hold the
\nhereditary trusteeship.  The temple is a public temple
\nand not owned exclusively by the respondent. The
\nSecretary of the respondent Sabha has no right to be
\nappointed as its hereditary trustee and the office of
\ntrusteeship cannot be claimed to be an hereditary one.
\nThere is no cause of action to file the suit and the
\ncause of action claimed is false.  There is a provision
\nin the bye-laws of the respondent Sabha that they can
\nwind up the Sabha, which clause in the bye-laws will
\nclearly show that the trusteeship is not at all
\nhereditary. “Hereditary trustee” has been defined under
\nSection 6(11) of the Act as trustee of the religious
\ninstitution, succession to whose office devolves by
\nhereditary right or is regulated by usage or is
\nspecifically provided for by the founder so long as such
\nscheme of succession is in force. None of the
\nrequirements of this provision is satisfied in the
\npresent case and hence the suit was liable to be
\ndismissed with costs.\n<\/p>\n
The Trial Court framed the following issues:\n<\/p>\n
“1.\tWhether the order of the Ist
\ndefendant is liable to be set aside?\n<\/p>\n
2.\tTo what relief?”\n<\/p>\n
It dismissed the suit observing that taking into
\nconsideration the efforts taken by the members of the
\nSabha in constructing the temple by contributing and
\nalso by collecting donations from the public at least
\none of the members of the plaintiff-Sabha can be
\nappointed as trustee of the said temple. It is for the
\ndefendants to decide as to which one or more of the
\nmembers of the Sabha can be appointed as trustee of the
\nsaid temple.\n<\/p>\n
\tAggrieved by the judgment and decree of the trial
\nCourt, plaintiff (respondent No. 1 herein) preferred an
\nappeal before the High Court and learned Single Judge
\ndismissed the appeal holding that though the institution
\nwas founded by the appellant-Sabha which is a body of
\npersons, it was from collections and contributions from
\npublic also and that the same is meant for all Hindu
\nworshipping public, and that there was no acceptable
\nground for declaring it as hereditary trustee. The
\nDivision Bench of the High Court by the impugned
\njudgment held in view of the admitted position that
\nSabha was founder of the Temple, the only other question
\nwhich needed to be answered was whether a body of
\npersons\/society or office bearers of the Sabha can be
\nrecognised as hereditary trustee or a trustee of the
\ntemple. The aforesaid question was answered in the
\naffirmative with reference to the fact that the entire
\nadministration of the temple vis-`-vis of the Sabha
\nwhich consists of office bearers and members of the
\nSabha\/society alone are entitled to administer the
\ntemple and properties which are also vested with them
\neither jointly as trustees or co-trustees. Setting aside
\nthe judgment of the present appellant No.2 as confirmed
\nof the present appellant No.1, it was declared that the
\nrespondent-plaintiff was entitled to hold office of
\ntrusteeship as its hereditary trustee.\n<\/p>\n
\tIn support of the appeal, Mr. K. Ramamoorthy,
\nlearned senior counsel submitted that the principles
\ngoverning the appointment of hereditary trustee were not
\nkept in view. Office of the hereditary trustee is in the
\nnature of property and where by efflux of time vacancy
\narose there can be no succession and that the principle
\nof heredity will not arise. The common feature in
\nhereditary trusteeship is succession by hereditary right
\nor where the succession is regulated by usage or is
\nspecifically provided for by the founder, as long as
\nsuch provision of scheme is in force. Undisputed
\nposition is that members of the public also contributed
\nfor construction of the temple besides Government grant
\nand there being no details as to how much was
\ncontributed by the founder and how much by the public it
\nwas not permissible to hold that there was scope for the
\nSabha being the hereditary trustee. The finding recorded
\nthat money was collected for construction of the temple
\nand that it was a public temple was not disturbed.
\nWhether a corporate body or a group of persons can be
\nappointed as hereditary trustee is really of no
\nconsequence in the factual background of the present
\ncase, and that, therefore, the Division Bench was not
\nright in allowing the claim of the respondent, as prayed
\nfor.\n<\/p>\n
\tClause (11) of Section 6 of the Act defining
\n“hereditary trustee” has three limbs. Sections 41 and
\n42 of the Societies Act have great relevance on the
\nquestion of hereditary trusteeship. Bye-law (23) also
\nthrows considerable light on the controversy. There is
\nno question of any usage being pressed into service,
\nwhen the temple is constructed first. The society itself
\nwas formed in 1967 and therefore the question of any
\nlong usage being in existence does not arise.\n<\/p>\n
\tIn response, learned counsel for the respondent
\nsubmitted that merely because contributions had been
\nreceived from the public, that does not make
\ncontributors co-founders. Unnecessary stress was laid by
\nlearned Single Judge on the consequences of winding up
\nof the Sabha. The founder is known as a Sabha and the
\nmanagement is with the Sabha’s members themselves. There
\nis no dispute about this aspect. There was also no
\nhindrance or interference by the public in the
\nmanagement and administration of the temple. The length
\nof management commensurate from the time of its
\nconstruction is itself suggestive of long usage.
\nTrusteeship is linked with management and there being no
\nlegal bar on a body becoming a trustee the Division
\nBench was correct in holding that the Sabha was a
\nhereditary trustee. If one looks at Clause (22) of
\nSection 6, the Sabha as a whole is a trustee and with
\nreference to Clause (11) of Section 6 it can be said
\nthat the Sabha is a hereditary trustee. The founders
\nautomatically were vested with trusteeship. It is
\nnobody’s case that it was an elected body, and
\ntherefore, the contributors and the Government cannot be
\nsaid to have status as its founders. Sabha is not a
\ncorporate body but is a compendium of names. It is not
\nthe case of the respondent that any particular member
\nwas a trustee. It was the compendium which was the
\ntrustee acting through its Secretary and, therefore,
\nrightly the Division Bench held that present respondent
\nNo.1 was a hereditary trustee.\n<\/p>\n
\tSection 6 of the Act which is the pivotal provision
\nso far as relevant reads as follows:\n<\/p>\n
“Section 6(11)- ‘hereditary trustee’
\nmeans the trustee of a religious
\ninstitution, the succession to whose
\noffice devolves by hereditary right or
\nis regulated by usage or is
\nspecifically provided for by the
\nfounder, so long as such scheme of
\nsuccession is in force.\n<\/p>\n
6(20)-‘temple’ means a place by whatever
\ndesignation known used as a place of
\npublic religious worship, and dedicated
\nto, or for the benefit of, or used as of
\nright by, the Hindu community or of any
\nsection thereof, as a place of public
\nreligious worship.\n<\/p>\n
6(22) ‘Trustee’ means any person or body
\nby whatever designation known in whom or
\nin which the administration of a
\nreligious institution is vested, and
\nincludes any person or body who or which
\nis liable as if such person or body were
\na trustee.”\n<\/p>\n
On consideration of the rival submissions, we feel
\nthat the approach of the Division Bench of the High
\nCourt was on erroneous premises and the conclusions
\nappear to have been arrived at overlooking certain vital
\nand basic underlying factors, the character of the
\ntemple as well as operation and impact of the provisions
\nof the Act on the temple and the claims made in relation
\nthereto. The basic question that arose was not whether a
\nbody of persons or society or office bearers of a Sabha
\ncan be recognised as hereditary trustee or a trustee of
\nthe temple. What was needed to be adjudicated was
\nwhether on the facts as also the prevailing and
\ngoverning position of law, particularly the Act in
\nquestion, the claim for ‘hereditary trustee’ was
\nestablished or could be sustained.\n<\/p>\n
\tA bare reading of definition of “hereditary
\ntrustee” brings into focus three important aspects; i.e.
\nfirst, a trustee of a religious institution the
\nsuccession to which is devolved by hereditary right; the
\nsecond category is that succession can be regulated by
\nusage and the third category is where succession
\nrelating to the office of trustee is specifically
\nprovided for by the founder and that too so long as the
\nscheme of such succession is in force.  In contrast to
\nthe criteria engrafted in Section 6(22), the definition
\nin Section 6(11) lays special and specific emphasis on
\nthe succession to the office of trustee of a religious
\ninstitution devolving by anyone of the three methods or
\nmanner envisaged therein. So far as the case on hand is
\nconcerned, the statutory authorities specially
\nconstituted under the Act have held the temple to be for
\nall the worshipping Hindu public and not confined to the
\nmembers of the Sabha only having regard to the manner in
\nwhich funds were collected and the manner in which the
\npublic invitations and declarations have been made and
\nday-to-day administration of the temple is being carried
\non from inception.  Though there has been an application
\nfor declaration of the office of trustee of the
\nreligious institution to be an hereditary one, no
\napplication under Section 63(a) for a declaration as to
\nwhether the temple in question is a religious
\ninstitution used as a place of public religious worship
\nand dedicated to or for the benefit of or used as of
\nright by the Hindu community or section thereof was
\nfiled. Even after, specific findings by the statutory
\nauthorities as to the character of the institution
\nconspicuous omission in this regard disentitled the
\nrespondent-Sabha to incidentally or vaguely project that
\nit is for the members of the Sabha only.  Once it is a
\nreligious institution within the meaning of the Act, the
\nprovisions of the Act have full force and effect and the
\nclaim of the nature, unless substantiated as provided
\nfor under the statute cannot be countenanced on certain
\nassertions made which was besides such statutory
\nprovisions. This Court highlighted this aspect of the
\nmatter in the decision reported in D. Srinivasan v.
\nCommissioner and Ors.<\/a> (2000 (3) SCC 548).\n<\/p>\n
The Act applies to all Hindu Public Religious
\nInstitutions and Endowments.  ‘Religious Institution’,
\nas defined at the relevant point of time meant a math,
\ntemple or specific endowment and ‘temple’ meant a place
\nby whatever designation known, used as a place of public
\nreligious worship and dedicated to or for the benefit of
\nor used as of right by the Hindu community or of any
\nsection thereof, as a place of public religious worship.
\n‘Trustee’ meant any person or body by whatever
\ndesignation known in whom or in which the administration
\nof a religious institution is vested and includes any
\nperson or body who or which is liable as if such person
\nor body were a trustee. In respect of a religious
\ninstitution, which has no hereditary trustee, the
\ncompetent authority concerned depending upon the class
\nof temple has been empowered under the provisions of the
\nAct to constitute also a Board of Trustees. ‘Hereditary
\ntrustee’ has been defined to mean, the trustee of a
\nreligious institution, the succession to whose office
\ndevolves by hereditary right or is regulated by usage or
\nis specifically provided for by the founder, so long
\nsuch schemes of succession is in force. ‘Non-hereditary
\ntrustee’ has also been defined to mean a trustee who is
\nnot a hereditary trustee. Consequently, the office of
\ntrustee, hereditary or non-hereditary though may have an
\nincumbent who occupies or holds the office of
\ntrusteeship at a particular point of time or for a
\nperiod of duration it is only the manner or method by
\nwhich the incumbent concerned comes to occupy it that it
\nis decisive of the nature and character of it as to
\nwhether it is hereditary or non-hereditary.\n<\/p>\n
\tPrior to the 1959 Act, The Madras Hindu Religious
\nand Charitable Endowments Act 1951, occupied the field
\nfrom 1.10.1951 and came to be replaced by the 1959 Act.
\nThe scope of meaning of the terminology ‘hereditary
\ntrustee’ under the 1951 Act came up for consideration of
\nthe Madras High Court as well as this Court.  In ILR
\n1957 Mad. 1084=AIR 1957 Mad. 758 State of Madras v.
\nRamakrishna Naidu,<\/a> a Division Bench of the Madras High
\nCourt had an occasion to exhaustively deal with the
\nposition in the context of an ancient temple known as
\nSri Parthasarathy Swami Temple, in Triplicame in Madras
\ncity.  The administration of the temple at the relevant
\npoint of time was in accordance with a scheme framed by
\nthe Madras High Court, which inter alia provided that
\nthe management and affairs of the temple shall be
\ncarried on by a body of dharmakartas under the
\nsupervision and control of a Board of Supervision.  The
\ndharmakartas were to be three in number, of whom one
\nshall be a Brahmin, one an Arya Vysia (Komatti) and one
\na non-brahmin not Arya Vysia and the dharmakartas shall
\nhold office for a period of five years from the date of
\nhis appointment, the retiring dharmakartas being also
\neligible for re-appointment, otherwise if so qualified.
\nThe said dharmakartas shall be elected by person whose
\nnames are included on the date of election in the list
\nof voters maintained at the temple, in terms of the
\nqualifications prescribed for being so enrolled as
\nvoters and elaborate rules for the conduct of elections
\nhave been also laid down in the scheme.  When the period
\nof office of one of the dharmakartas by name Rao Bahadur
\nv. Ranganathan Chetty expired by efflux of time after
\nthe commencement of the 1951 Act, though the vacancy had
\nto be under the scheme, filled up by election, the
\nCommissioner, Hindu Religious And Charitable Endowments,
\npassed an order in exercise of his powers under Section
\n39(i) of the 1951 Act, appointing one C. Subramaniam
\nChetty as Trustee in the vacancy caused by the expiry of
\nthe term of trustee of Sri V. Ranganathan Chetty.  This
\norder came to be challenged in the High Court and a
\nlearned Single Judge sustained the claim of challenge on
\nthe ground that Sections 39 and 42 had no application,
\nas the trustees of the temple were hereditary trustees.
\nThose who challenged the appointment were not either the
\noutgoing trustee- V. Ranaganathan Chetty or his heirs or
\nsuccessors but two thengalai worshippers interested in
\nthe said temple.  If the trustees of the temple are
\nhereditary trustees, Sections 39 and 42 had no
\napplication and it is in that context the question that
\nwas adverted to for consideration was  whether it is an
\ninstitution, which has a hereditary trustee or
\nhereditary trustees. After adverting to the definition
\nof ‘hereditary trustee’ in Section 6(9) of the 1951 Act,
\nwhich defined the same to mean the trustee of a
\nreligious institution, succession to whose office
\ndevolves by hereditary right or is regulated by usage or
\nis specifically provided for by the founder, so long as
\nsuch scheme of succession is in force.  The Division
\nBench specifically noticed the fact that the claim of
\nthose who challenged the order of Commissioner was on
\nthe ground that the office of dharmakartas was a
\n‘hereditary’ one and it was not on the basis that their
\noffice devolved by succession or because succession to
\ntheir office has been specifically provided for by the
\nfounder, but that the succession to the office “is
\nregulated by usage’, which found favour of acceptance
\nwith the learned Single Judge.  The stand taken for the
\nState before the Division Bench was that, the phrase
\n‘regulated by usage’ must be read with the expression,
\n“succession to whose office” and when so read that part
\nof the definition would only apply where the ordinary
\nrules of succession under the Hindu Law are modified by
\nusage and succession has to be determined in accordance
\nwith the modified rules. It was observed that though
\nseveral schemes framed took notice of the usage and
\nembodied it in the scheme framed with such modifications
\nas the court deemed fit, it cannot be said that the
\nsuccession continued to be governed by usage when as a
\nmatter of fact it was governed by the provisions of the
\nscheme and not by usage any longer.\n<\/p>\n
\tProceeding further, the Division Bench construed
\nthe scope and purport of the definition ‘hereditary
\ntrustee’, placing strong reliance upon the decision of
\nthis Court reported in 1951 SCR 1125 (Angurbala Mullick
\nv. Debabrata Mullick) and AIR<\/a> 1954 SC 606 (Sital Das v.
\nSant Ram), and<\/a> held therein as follows:\n<\/p>\n
“In the case of mutts whose heads are often
\ncelibates and sometimes sanyasins, special
\nrules of succession obtain by custom and
\nusage.  In Sital Das vs Sant Ram, the<\/a> law is
\ntaken as well-settled that succession to
\nmahantship of a mutt or religious institution
\nis regulated by custom or usage of the
\nparticular institution except where the rule
\nof succession is laid down by the founder
\nhimself who created the endowment. In that
\ncase the custom in matters of succession to
\nmahantship was that the assembly of bairagis
\nand worshippers of the temple appointed the
\nsuccessor; but the appointment had to be made
\nfrom the disciples of the deceased mahant if
\nhe left any, and failing disciples, any one of
\nhis spiritual kindred.  Such a succession was
\ndescribed as not hereditary in the sense that
\non the death of an existing mahant, his chela
\nsucceeds to the office as a matter of course,
\nbecause the successor acquires a right only by
\nappointment and the authority to appoint is
\nvested in the assembly of the bairagis and the
\nworshippers.  In Sri Mahant Paramananda Das
\nGoswami vs Radhakrishna Das a Division Bench
\ntook the view that where succession to the
\nmahantship is by nomination by the holder in
\noffice, it is not a hereditary succession.
\nVenkatasubba Rao, J., as said:\n<\/p>\n
“If the successor owes his title to
\nnomination or appointment, that is, his
\nsuccession depends on the volition of
\nthe last incumbent and does not rest
\nupon independent title, I am inclined to
\nthe view that the office cannot be said
\nto be hereditary.”\n<\/p>\n
Krishnan, J., the other learned Judge, came to
\nthe same conclusion on the following
\nreasoning:\n<\/p>\n
“Where succession is by nomination by
\nthe holder in office of his successor it
\nseems to me impossible to contend that
\nit is a hereditary succession.\n<\/p>\n
Hereditary succession is succession by
\nthe heir to the deceased under the law,
\nthe office must be transmitted to the
\nsuccessor according to some definite
\nrules of descent which by their own
\nforce designate the person to succeed.
\nThere need be no blood relationship
\nbetween the deceased and his successor
\nbut the right of the latter should not
\ndepend upon the choice of any
\nindividual”.\n<\/p>\n
The present definition in Section 6, clause
\n(9), would, however, comprise even such cases.\n<\/p>\n
\tIt appears to us to be singularly
\ninappropriate to say that there is a
\nsuccession of A’s office to another when on
\nthe efflux of the period for which A was
\nappointed there is a vacancy and B is elected
\nto that vacancy.”\n<\/p>\n
\tIn AIR 1971 SC 2363 = 1970(1) SCC 4 (Sambudamurthi
\nMudaliar vs. The State of Madras and<\/a> another), this
\nCourt had an occasion to construe Section 6 (9) and the
\nscope of the terminology ‘hereditary trustee’ and held
\nas follows:\n<\/p>\n
“3. The question to be considered in this
\nappeal is whether the appellant is a
\nhereditary trustee within the meaning of the
\nsection.  The definition includes the three
\ntypes of cases: (1) succession to the office
\nof trusteeship devolving by hereditary right;
\n(2) succession to such office being regulated
\nby usage; and (3) succession being
\nspecifically provided for by the founder on
\ncondition that the scheme of such succession
\nis still in force.  It is not the case of the
\nappellant that the trustees of the temple of
\nthe Kumaran Koil are hereditary trustees
\nbecause their office devolves by hereditary
\nright or because succession to that office is
\nspecifically provided for by the founder.  The
\ncontention on behalf of the appellant is that
\nthe succession is “regulated by usage”.  It
\nwas said that according to the usage of the
\ntemple the trustees were elected for a period
\nof one year each at a meeting of the members
\nof the Sengunatha Mudaliar Community and so
\nthe appellant must be held to be a trustee
\nwithin the meaning of Section 6(9) of the Act
\n19 of 1951.  In our opinion, there is no
\nwarrant for this argument.  The phrase
\n“regulated by usage” in Section 6 (9) of the
\nAct must be construed along with the phrase
\n“succession to this office” and when so
\nconstrued that part of the definition would
\nonly apply where the ordinary rules of
\nsuccession under the Hindu Law are modified by
\nusage and succession has to be determined in
\naccordance with the modified rules.  The word
\n“succession” in relation to property and
\nrights and interests in property generally
\nimplies “Passing of an interest from one
\nperson to another” (vide in Re. Hindu Women’s
\nRight to Property Act, 1937, (1941 FCR 12) =
\n(AIR 1941 FC 72).  It is now well established
\nthat the office of a hereditary trustee is in
\nthe nature of property. This is so whether the
\ntrustee has a beneficial interest of some sort
\nor not.  (see Ganesh Chander Dhur v. Lal
\nBehari, 63 Ind App 448 = (AIR 1936 PC 318) and
\nBhabatatini v. Ashalata, 70 Ind App 57 = (AIR
\n1943 PC 89).  Ordinarily a shebaitship or the
\noffice of dharamakarta is vested in the heirs
\nof the founder unless the founder has laid
\ndown a special scheme of succession or except
\nwhen usage or custom to the contrary is proved
\nto exist.  Mukherjea J., in Angurbala Mullick
\nv Debabrata Mullick, 1951 SCR 1125 = (AIR 1951
\nSC 293) delivering the judgment of this Court
\nobserved:\n<\/p>\n
“Unless, therefore the founder
\nhas disposed of the shebaitship in
\nany particular manner  and this
\nright of disposition is inherent in
\nthe founder  or except when usage
\nor custom of a different nature is
\nproved to exist, shebaitship like
\nany other species of heritable
\nproperty follows the line of
\ninheritance from the founder.”\n<\/p>\n
In the case of mutts, whose heads are often
\ncelibates and sometimes sanyasins, special
\nrules of succession obtain by custom and
\nusage.  In Sital Das v. Sant Ram, AIR<\/a> 1954 SC
\n606 the law was taken as well settled that
\nsuccession to mahantship of a mutt or
\nreligious institution is regulated by custom
\nor usage of the particular institution except
\nwhere the rule of succession is laid down by
\nthe founder himself who created the endowment.
\nIn that case the custom in matters of
\nsuccession to mahantship was that the assembly
\nof bairagis and worshippers of the temple
\nappointed the successor; but the appointment
\nhad to be made from the disciples of the
\ndeceased mahant if he left any, and failing
\ndisciples, any one of his spiritual kindred.
\nSuch a succession was described as not
\nhereditary in the sense that on the death of
\nan existing mahant, his chela does not succeed
\nto the office as a matter of course, because
\nthe successor acquires a right only by
\nappointment and the authority to appoint is
\nvested in the assembly of the bairagis and the
\nworshippers.  In Sri Mahant Paramananda Das
\nGoswami v. Radha Krishna Das, 51 MLJ 258 =
\n(AIR 1926 Mad 1012), the Madras High Court
\ntook the view that where succession to the
\nMahantship is by nomination by the holder in
\noffice, it is not a hereditary succession.  In
\nthat case Venkatasubba Rao, J., said:\n<\/p>\n
\t“If the successor owes his title to
\nnomination or appointment, that is, his
\nsuccession depends on the volition of
\nthe last incumbent and does not rest
\nupon independent title, I am inclined to
\nthe view that the office cannot be said
\nto be hereditary.”\n<\/p>\n
Krishnan, J., stated as follows:\n<\/p>\n
\t“Where succession is by nomination
\nby the holder in office of his successor
\nit seems to be impossible to contend
\nthat it is a hereditary succession.\n<\/p>\n
Hereditary succession is succession by
\nthe heir to the deceased under the law,
\nthe office must be transmitted to the
\nsuccessor according to some definite
\nrules of descent which by their own
\nforce designate the person to succeed.
\nThere need be no blood relationship
\nbetween the deceased and his successor
\nbut the right of the latter should not
\ndepend upon the choice of any
\nindividual.”\n<\/p>\n
It is true that the artificial definition of
\nhereditary trustee in Section 6 (9) of the Act
\nwould include even such cases.\n<\/p>\n
4. But the election to the office of trustee
\nin the present case is for a fixed period of
\none year and not for life.  It is, therefore,
\ndifficult to hold that the office of the
\nappellant is hereditary within the meaning of
\nSection 6 (9) of the Act.  It is not possible
\nto say that there is a succession of A’s
\noffice to another when on the efflux of the
\nperiod for which A was appointed, there is a
\nvacancy and B is elected to that vacancy.  It
\nis quite possible that for that vacancy A
\nhimself might be re-elected because a retiring
\ntrustee is eligible for re-election.  The
\npossibility of A being the successor of A
\nhimself is not merely an anomaly, it is an
\nimpossible legal position.  No man can succeed
\nto his own office.  In Black’s Law Dictionary
\nthe word ‘succession’ is defined as follows:\n<\/p>\n
\t“The devolution of title to
\nproperty under the law of descent
\nand distribution.\n<\/p>\n
\tThe right by which one set of
\nmen may, by succeeding another set,
\nacquire a property in all the goods,
\nmovables, and other chattels of a
\ncorporation.\n<\/p>\n
\tThe fact of the transmission of
\nthe rights, estates, obligations,
\nand charges of a deceased person to
\nhis heir or heirs.”\n<\/p>\n
The view we have taken is borne out by the
\nreasoning of the Madras High Court in State of
\nMadras v. Ramakrishna, ILR (1957) Mad 1084 =
\n(AIR 1957 Mad 758).”\n<\/p>\n
\tThus, it could be seen that even in S. Mudaliar’s
\ncase (supra), the challenge was by a person who was
\nappointed only for one year and not for life and that
\nhis claim before the Court, which fell for consideration
\nis not that he himself was a hereditary trustee but that
\nthe trusteeship of the temple was ‘hereditary’ in
\nnature.  This Court also approved the ratio of the
\ndecision of the Division Bench of the Madras High Court
\nin Ramakrishna Naidu’s case (supra).  Consequently, the
\ndistinction sought to be made of the decision of this
\nCourt by a Division Bench of the Madras High Court which
\ndecided the case in 1975(2) M.L.J. 178 – A.N. Ramaswamy
\nIyer and Ors. v. The Commissioner H.R.& C.E. and
\nanother, particularly para 11 is without any substance
\nor really any difference to so distinguish.  The said
\ndecision cannot be considered to lay down a correct
\nproposition of law, in the teeth of the specific
\ndeclaration of the legal position made by this Court in
\nS. Mudaliar’s case (supra). As long as there is no
\nprovision by any founder for devolution of the office of
\ntrusteeship by succession hereditarily, in or by anyone
\nof the mode or method envisaged it is futile to claim
\nthat the temple has hereditary trustee or that the
\nmanagement or administration of the affairs of the
\ntemple is carried on by a hereditary trustee or that the
\nrespondent is entitled for a declaration that it is the
\nhereditary trustee of the temple in question. In this
\ncase no such provision has shown or found to exist, and
\nas a matter of fact the learned Single Judge in the High
\nCourt found such provision to be conspicuously absent.\n<\/p>\n
\tIn Dr. Srinivasan’s case (supra), this court
\nadverted to the definition of ‘hereditary trustee’ under
\nSection 9 (6) of the Madras Hindu Religious Endowments
\nAct, 1926 (Act 2 of 1927) as also Section 6 (9) of the
\n1951 Act and Section 6 (11) of the 1959 Act and taking
\nnote of the change brought about by the 1951 and 1959
\nActs respectively, it was held that, after the
\ncommencement of the 1951 Act itself the definition of
\n‘hereditary trustee’ contained in Section 6 (9) therein
\ndid not recognize a person who was nominated by other
\ntrustees as hereditary trustees and that the same
\nposition prevails under Section 6 (11) of the 1959 Act,
\nwhich also does not describe a person nominated by the
\nexisting board to be called a hereditary trustee. It is
\nuseful to refer to the observation made therein, as
\nhereunder:\n<\/p>\n
“24. We, therefore, hold that if any trustee
\nhas been nominated subsequent to the
\ncommencement of the 1951 Act by the Board of
\nTrustees who were in office prior to the 1951
\nAct or by their nominees then such persons
\ncould not be called “hereditary trustees”
\nwithin the meaning of sub-section (6) of
\nSection 9 of the 1951 Act.  Similarly, if the
\npersons who were themselves not hereditary
\ntrustees after the 1951 Act, either by
\nthemselves or along with other hereditary
\ntrustees after 1951, nominated trustees, then
\nsuch trustees would not be hereditary
\ntrustees.  The position is no different after
\nthe 1959 Act.\n<\/p>\n
26. This does not, however, mean that the
\nright conferred on the Board of Trustees,
\nwhenever a vacancy occurs in the five places
\ncreated by Venkatarangaiah, is done away with
\naltogether by the 1951 Act or by the post-1951
\nActs.  It will be open to the nominated five
\ntrustees in office, from time to time to
\nnominate fresh trustees whenever there is any
\nvacancy in these five offices of trustees.
\nSuch persons can be trustees but cannot be
\ncalled “hereditary trustees”.  They will have
\nto be described as “non-hereditary trustees”.
\nWhat their rights are will necessarily have to
\nbe governed by the provisions of the statute.
\nWe need not go into the question as to their
\nrights. Suffice to say that they are not
\n“hereditary trustees”.”\n<\/p>\n
\tThe authority to nominate or appoint or specify
\nperiodically for a specified period even by a body which
\nhad authority to do so would not make such office a
\nhereditary one so as to call such trustees ‘hereditary
\ntrustees’ as defined under the 1951 or 1959 Acts.  It is
\nthe definite rules of succession and devolution by any
\none of the three modes of succession envisaged in
\nSection 6(11) that could alone enable a claim of
\nhereditary trustee to be legitimately made.\n<\/p>\n
\tHaving regard to the conclusions arrived at supra,
\nthe submissions made on the basis of the finding
\nrecorded that the Sabha was the founder of the temple in
\nquestion or that as founder it had every right to
\nprovide for the administration of the affairs and
\nmanagement of the temple and its property, if any, and
\nfor future management as well, pales into insignificance
\nand really does not call for our decision to determine
\nthe question as to whether the Sabha could get itself
\ndeclared as `Hereditary Trustee’ under the provisions of
\nthe Act.  Similarly, the question as to whether a body
\ncould be a Trustee or constitute Board of Trustees also
\nis beside the point.  Even, as a body  whether it could
\nclaim to be a trustee or not, so far as in the case on
\nhand is concerned, it cannot, as held by us, claim to be
\nhereditary trustee.\n<\/p>\n
\tNo doubt, normally every donor contributing at the
\ntime of foundation of a Trust cannot claim to become a
\nfounder of the Trust, except in cases where all the
\ncontributors of the Trust Fund become the founders of
\nthe Trust itself inasmuch as a decision on the question
\nas to whether a person can be a joint founder, cannot be
\nmade to rest merely upon the factum of contribution
\nalone unless the surrounding and attendant circumstances
\nproved in the case and subsequent conduct of parties
\nwarrant such a finding.   All these issues also seem to
\nbe beside the real issue as to the hereditary nature of
\nthe office claimed  which by no means could be
\ncountenanced in law, in favour of the respondent-Sabha.\n<\/p>\n
The analysis undertaken by learned Single Judge
\nseems to be correct. As noted above, Sabha itself came
\ninto existence a few years before the declaration was
\nsought for by filing a suit by the present respondent.
\nThe concept of long continuance and passage of time is
\ninbuilt in the expression ‘usage’ and the factual
\nposition also in the present case does not enable the
\nSabha to establish application of the usage concept.
\nThat being so, the judgment of Division Bench of the
\nHigh Court is set aside and that of the learned Single
\nJudge is restored. The appeal is allowed with no order
\nas to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Commissioner, Hindu … vs Vedantha Sthapna Sabha on 7 May, 2004 Author: A Pasayat Bench: Doraiswamy Raju, Arijit Pasayat. CASE NO.: Appeal (civil) 5093 of 1998 PETITIONER: Commissioner, Hindu Religious,and Charitable Endowment(Admn.), Madras & Anr. RESPONDENT: Vedantha Sthapna Sabha DATE OF JUDGMENT: 07\/05\/2004 BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT. JUDGMENT: J […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-46533","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCommissioner, Hindu ... vs Vedantha Sthapna Sabha on 7 May, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/commissioner-hindu-vs-vedantha-sthapna-sabha-on-7-may-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Commissioner, Hindu ... vs Vedantha Sthapna Sabha on 7 May, 2004 - 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