{"id":53081,"date":"2009-12-23T00:00:00","date_gmt":"2009-12-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-ramakrishnan-vs-s-marimuthu-on-23-december-2009"},"modified":"2018-04-05T21:42:16","modified_gmt":"2018-04-05T16:12:16","slug":"s-ramakrishnan-vs-s-marimuthu-on-23-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-ramakrishnan-vs-s-marimuthu-on-23-december-2009","title":{"rendered":"S.Ramakrishnan vs S.Marimuthu on 23 December, 2009"},"content":{"rendered":"
Madras High Court<\/div>\n
S.Ramakrishnan vs S.Marimuthu on 23 December, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 23\/12\/2009\n\nCORAM\nTHE HONOURABLE MR.JUSTICE D.MURUGESAN\nand\nTHE HONOURABLE MR.JUSTICE S.NAGAMUTHU\n\nW.A.(MD) No.673 of 2008\n\nS.Ramakrishnan\t\t\t\t..\tAppellant\n\nversus\n\n1. S.Marimuthu\n\n2. The Commissioner\n    Hindu Religious & Charitable Endowments\n    Nungambakkam, Chennai-34\n\n3. The Joint Commissioner\n    Hindu Religious & Charitable Endowments\n    Sivagangai\n\n4. S.Ramachandran\n5. S.A.Rajendran Poosari\n6. R.Soundararajan Poosari\n7. S.Kathiresan Poosari\n8. S.Ramar Poosari\n9. R.Maharajan Poosari\n10.S.R.M.Ramamoorthy Poosari\n    (RR 5 to 10 given up as per the\n     order of Court dt. 16.12.2009)\t..   \tRespondents\n\n\tAppeal under Clause 15 of the Letters Patent against the order dated\n17.9.2008 made in W.P.(MD) No.420 of 2007.\n\n!For Appellant\t\t...\tMr.K.M.Vijayan\n\t\t\t\tSenior Counsel for\n\t\t\t\tMr.V.Sasikumar\n^For Respondents\t...\tMr.T.R.Rajagopalan\n\t\t\t\tSenior Counsel for\n\t\t\t\tMrs.N.Krishnaveni for R1\n\t\t\t\tMr.K.M.Vijayakumar\n\t\t\t\tSpecial Government Pleader\n\t\t\t\tfor R2 & R3\n\t\t\t\tMr.S.Conscious Ilango\n\t\t\t\tfor R4\n\n:JUDGMENT\n<\/pre>\n
D.MURUGESAN, J.\n<\/p>\n
\tThe writ appeal pertains to the approval of the hereditary trustee to
\nArulmighu Mariamman Temple at Irukkankudi, Sattur Taluk, Virudhunagar District.
\nThe said temple is a listed temple under the control of Hindu Religious and
\nCharitable Endowments Board and the administration of the temple is governed by
\na scheme framed by the Board in its proceedings dated 4.5.1935. The scheme was
\nlater modified on 31.5.1955 by which a provision for appointment of an Executive
\nOfficer was also made.\n<\/p>\n
\t2. One of the hereditary trustees by name Ramasamy Poosari died on 6.8.75
\nleaving behind his three female heirs. Mrs.Seeniammal alias Sundarammal, the
\neldest daughter, applied to the Joint Commissioner, Hindu Religious and
\nCharitable Endowments Department, Sivagangai to register her as the hereditary
\ntrustee.  That was objected to by the other hereditary trustees on the ground
\nthat she being a female, could not be appointed as the hereditary trustee.
\nHence Seeniammal alias Sundarammal filed a suit in O.S.No.188 of 1993 on the
\nfile of District Munsif Court, Sattur for a declaration that she succeeded her
\nfather to the office of trusteeship of the temple.  That suit was decreed
\ndeclaring that she is entitled to the office of trusteeship even though she
\nbeing a female.  As against the said judgment and decree, an appeal was filed in
\nA.S.No.27 of 1996 on the file of Principal District Judge, Srivilliputhur and
\nthe same was dismissed. As against the said judgment and decree, a further
\nappeal in S.A.No.465 of 1998 was filed before this Court and the same was later
\non withdrawn.\n<\/p>\n
\t3. In view of the above, Seeniammal alias Sundarammal was registered as
\nthe hereditary trustee of the temple by the proceedings of the Joint
\nCommissioner dated 29.1.98.  She died on 2.4.2004 leaving behind three sons and
\none daughter as her heirs.  The first respondent by name Marimuthu, being the
\neldest son, claimed the right to hold the office of trusteeship in terms of
\nSection 54(1) of the Hindu Religious and Charitable Endowments Act, 1959
\n(hereinafter referred to as “the Act”).  However, his brother viz., the
\nappellant by name Ramakrishnan, being the last son of Seeniammal, objected to
\nthe same and filed a petition on 18.7.2004 before the Joint Commissioner, Hindu
\nReligious and Charitable Endowments Department, Sivagangai on the ground that
\nthe first respondent had acted against the interest of the institution and
\ntherefore he is disqualified in terms of Section 26(1)(h) of the Act.  By the
\nproceedings dated 6.5.2005, the Joint Commissioner registered the first
\nrespondent as the hereditary trustee on the ground that only the eldest member
\ncan be registered as the hereditary trustee.  The appellant thereafter filed
\nW.P.(MD) No.4647 of 2005 seeking to quash the order of the Joint Commissioner
\ndated 6.5.2005.  The said writ petition was allowed on the ground that the
\nfourth respondent herein was not heard and the principles of natural justice
\nwere violated. Hence the matter was remanded back to the Joint Commissioner for
\nfresh consideration.  After remand the Joint Commissioner, Hindu Religious and
\nCharitable Endowments Department, Sivaganga, by his further proceedings dated
\n31.3.2006, once again held that the first respondent is entitled to become the
\nhereditary trustee after the death of his mother.\n<\/p>\n
\t4. That order was again questioned by the appellant in an appeal before
\nthe Commissioner, Hindu Religious and Charitable Endowments Department, Chennai
\nin A.P.No.20 of 2006 and the same was allowed on the ground that the first
\nrespondent had purchased the properties belonging to Arulmighu Chidambareswarar
\nTemple, Sattur from a third party and thereby he had acted adverse to the
\ninterest of the institution and consequently, he is disqualified under Section
\n26(1)(h) of the Act.  He also found that the first respondent has not proved the
\nWill executed by his mother was forged.  Therefore, he remitted the matter back
\nto the Joint Commissioner to verify whether the first respondent had purchased
\nthe Kattalai properties of Arulmighu Chidambareswarar Temple knowing fully well
\nthat they were the properties of the temple, to decide as to who is next in line
\nof succession between the appellant and first respondent taking into account of
\nthe existence of Will.\n<\/p>\n
\t5. The above order was questioned by the first respondent in the writ
\npetition.  So far as the dispute relating to the purchase of Kattalai properties
\nof Arulmighu Chidambareswarar Temple by the first respondent and the existence
\nof the Will are concerned, the learned single Judge found that the order of the
\nCommissioner in directing the Joint Commissioner to decide the succession based
\non the Will cannot be sustained, as the Joint Commissioner has no jurisdiction
\nto go into that question and the same should be decided only in a suit.  So far
\nas the application of Section 26(1)(h) of the Act is concerned, the learned
\nsingle Judge found that it is applicable only if an individual acted adverse to
\nthe interest of that temple or religious institution and not in any other temple
\nor any other institution unconnected with the temple.  With these findings, the
\nlearned Judge allowed the writ petition.  Aggrieved by the same, the third
\nrespondent in the writ petition has preferred this appeal.\n<\/p>\n
\t6.We have heard Mr.K.M.Vijayan, learned senior counsel appearing for the
\nappellant, Mr.T.R.Rajagopalan, learned senior counsel with Mrs.N.Krishnaveni,
\nlearned counsel for the first respondent, Mr.K.M.Vijayakumar, learned Special
\nGovernment Pleader for the Hindu Religious and Charitable Endowments Department
\nand Mr.S.Conscious Ilango, learned counsel for the fourth respondent.\n<\/p>\n
\t7. Mr.K.M.Vijayan, learned senior counsel for the appellant would fairly
\nsubmit that the finding of the learned single Judge as to the dispute relating
\nto the existence of Will, the civil Court alone would have jurisdiction and that
\nneither the Commissioner nor the Joint Commissioner of Hindu Religious and
\nCharitable Endowments can go into the said issues, cannot be found fault with.
\nHowever, the learned senior counsel would submit that when once it is alleged
\nthat the first respondent had purchased the Kattalai properties of Arulmighu
\nChidambareswarar Temple, in terms of Section 26(1)(h) of the Act, he is
\ndisqualified to be approved as the hereditary trustee.  He would also submit
\nthat the expression “the institution” employed in Section 26(1)(h) must be read
\nconjointly with the expression “any religious institution” employed in Section
\n26(1) of the Act.  If both the provisions are read together, the only conclusion
\nwill be that if a person has acted against the interest of a religious
\ninstitution, he is disqualified and cannot be considered for appointment as the
\nhereditary trustee in any religious institution.\n<\/p>\n
\t8. On the other hand, Mr.T.R.Rajagopalan, learned senior counsel for the
\nfirst respondent would submit that the entire issue is governed by the
\nprovisions of Section 54 of the Act, which contemplate that when a permanent
\nvacancy occurs in the office of the hereditary trustee of a religious
\ninstitution, the next in the line of succession shall be entitled to succeed to
\nthe office.  By virtue of that provision, the first respondent, being the eldest
\nmember, had succeeded to the office after the demise of his mother.   When that
\nwas objected, an enquiry was conducted by the Joint Commissioner in terms of
\nSection 63 and held that the first respondent is entitled to succeed to the
\noffice of hereditary trustee. That order was carried on to further appeal to the
\nCommissioner under Section 69 of the Act.  Therefore the provisions of Section
\n26 relating to appointment cannot be made applicable to the facts of this case.
\nThat apart, even assuming that the provisions of Section 26(1)(h) would apply to
\nthe case on hand, it would apply only when a person is disqualified for being
\nappointed as a trustee if he has acted adverse to the interest of the
\ninstitution.  The expression “the institution” refer to that institution alone
\nand not to other institutions. Hence the learned senior counsel would submit
\nthat the order under appeal needs no interference.\n<\/p>\n
\t9. Mr.S.Conscious Ilango, learned counsel appearing for the fourth
\nrespondent has adopted the arguments of the learned senior counsel
\nMr.K.M.Vijayan for the appellant.  He would also submit that the case on hand is
\nsquarely covered under Section 26(1)(h)  of the Act, which relates to the
\nappointment.  After the demise of the hereditary trustee, in the event any one
\nof the disqualifications is noted in respect of the person who is in line, he
\ncannot be approved as the hereditary trustee.  In that event, the appointment of
\nthe first respondent is construed to be made only under Section 26(1) and in
\nthat case, he is disqualified in terms of Section 26(1)(h) of the Act.  He would
\nfurther submit that the expression “the institution” employed in that section
\nwould mean “any institution” and not restricted to the particular institution.
\nIn matters of appointment of trustees, the provisions of the Act cannot be given
\na narrow meaning and they should be given a wider meaning in the sense that the
\ndisqualification would be applicable to any institution and not to the
\nparticular institution, it is argued.\n<\/p>\n
\t10. We have carefully considered the rival contentions.  The filling up of
\nthe vacancies in the office of “trustee” and “hereditary trustee” must be
\nconsidered with reference to the scheme of the Act.  Sub-section (11) of Section
\n6 of the Act defines a “hereditary trustee” as follows:-\n<\/p>\n
“6.(11) “hereditary trustee” means the trustee of a religious institution, the
\nsuccession to whose office devolves by hereditary right or is regulated by usage
\nor is specifically provided for by the founder, so long as such scheme of
\nsuccession is in force.”\n<\/p>\n
Sub-section (22) of Section 6 defines a “trustee” as follows:-
\n“6.(22) “trustee” means any person or body by whatever designation known in whom
\nor in which the administration of a religious institution is vested and includes
\nany person or body who or which is liable as if such person or body were a
\ntrustee.”\n<\/p>\n
As far as the hereditary trustee is concerned, he becomes so by way of
\nsuccession.  As far as the trustee is concerned, it is by way of appointment.
\nWhenever a vacancy to the office of trusteeship arises, it is to be filled in by
\nthe Government in terms of Section 49. The qualification of trustees is
\nenumerated under Section 26(1) of the Act.  The disqualification enumerated
\nunder clauses (a) to (h) of sub-section (1) of Section 26 can be divided into
\ntwo categories.  Except clauses (e), (f) and (h), all clauses relate to the
\ndisqualification of a person for being appointed as a trustee of any religious
\ninstitution.  That disqualification is complete and substantial. On the other
\nhand, the disqualification enumerated under clauses (e), (f) and (h) are to be
\napplied depending upon the situation.  For example, the disqualification
\nenumerated in clause (e) of sub-section (1) of Section 26 contemplates that if a
\nperson is interested in a subsisting lease of any property or a contract made
\nwith or any work being done for the religious institution or is in arrears of
\nany kind due to such religious institution or endowment, he is disqualified from
\nbeing appointed as a trustee.  The expression “religious institution” employed
\ntherein must necessarily be construed to be a particular institution where he
\nhas got a subsisting lease etc. Clause (f) of that section contemplates that if
\na person is employed as a paid legal practitioner on behalf of or against the
\nreligious institution, he is disqualified from being appointed as a trustee in
\nthat institution. The expression “religious institution” employed in that clause
\nrelates to that institution only since if a person is employed as a paid legal
\npractitioner on behalf of or against the religious institution cannot be a
\ndisqualification for such person to be appointed as a trustee in any other
\nreligious institution. Similarly, clause (h) of that section must also be read
\nin the manner that if a person has acted adverse to the interest of the
\ninstitution, he is disqualified from being appointed as a trustee.  The
\nexpression “the institution” should necessarily mean that the act of that person
\nwhich was adverse to the interest should be in respect of that institution alone
\nand not to the other institutions.\n<\/p>\n
\t11. Mr.K.M.Vijayan, learned senior counsel has submitted that the
\nexpression “the institution” employed in clause (h) should be read along with
\nthe expression “any religious institution” employed in sub-section (1) of
\nSection 26.  In our opinion, the said contention cannot be accepted. The
\nexpression “any religious institution” employed in sub-section (1) of Section 26
\nis in relation to all the clauses except clauses (e), (f) and (h).  If the
\nprovisions are read as suggested by Mr.K.M.Vijayan, even a legal practitioner
\nemployed in a particular religious institution will be disqualified from being
\nappointed as a trustee in any other religious institution, which interpretation
\nhas no sound reason behind it.\n<\/p>\n
\t12. That apart, in the given facts and circumstances of the case, whether
\nthe first respondent was appointed in terms of Section 26(1)(h) of the Act or he
\nsucceeded to the vacancy that arose in terms of Section 54 of the Act  should be
\nconsidered.  If a permanent vacancy occurs in the office of hereditary trustee
\nof a religious institution, the next person in the line of succession shall be
\nentitled to succeed to the office. This provision entitles the next in the line
\nof succession to succeed to the office without any consideration by the
\nauthorities in terms of Section 26(1) of the Act.  In case of a dispute
\nrespecting the right of succession to the office either be it permanent or
\ntemporary or that when a hereditary trustee is a minor and has no guardian fit
\nand willing to act as such or there is a dispute respecting the person who is
\nentitled to act as guardian or when a hereditary trustee is by reason of
\nunsoundness of mind or other mental or physical defect or infirmity unfit for
\nperforming the functions of the trustee as provided under sub-section (3) of
\nSection 54 of the Act, the Joint Commissioner or the Deputy Commissioner, as the
\ncase may be, may appoint a fit person to perform the functions of the trustee of
\nthe institution until the disability of the hereditary trustee ceases or another
\nhereditary trustee succeeds to the office or for such shorter term as they may
\ndirect.  The above provision under sub-section (3) of Section 54 shows the
\ndisqualification of the next in the line of succession to succeed to the office
\nof hereditary trustee, indicating thereby that it is not a fresh appointment and
\nit is only by way of succession. As against the said order, an appeal is also
\nprovided to the Commissioner in terms of sub-section (4) of Section 54 of the
\nAct.\n<\/p>\n
\t13. In addition to the above, an enquiry is also contemplated under
\nSection 63 of the Act by the Joint Commissioner or Deputy Commissioner, as the
\ncase may be, in respect of a dispute. That apart, there is a power provided
\nunder Section 53 to the appropriate authority to suspend, remove or dismiss any
\ntrustee if he ceases to profess Hindu religion or fails to discharge the duties
\nand perform the functions of a trustee in accordance with the provisions of the
\nAct and the rules and so on.  Clause (j) of sub-section (2) of Section 53 again
\nrefers to “acts adversely to the interests of the institution” as one of the
\ndisqualification.Therefore, if at all a person is aggrieved by the succession of
\nhereditary trustee, he could only invoke the provisions of Section 63 and
\napproach the Joint Commissioner to point out the disqualification enumerated
\nunder Section 53 insofar as it applies to the hereditary trustee and seek for
\nsuspension, removal or dismissal of such hereditary trustee. Factually as well,
\nas rightly contended by Mr.T.R.Rajagopalan, learned senior counsel, the
\nappellant has approached the Joint Commissioner only by invoking the provisions
\nof Section 63 for an enquiry, where the Joint Commissioner has got only limited
\njurisdiction and not under Section 53 seeking for suspension, removal or
\ndismissal of the hereditary trustee on the disqualification enumerated
\nthereunder.\n<\/p>\n
\t14.  Whenever such succession takes place to the vacancy in the office of
\nhereditary trustee, the provisions of Section 54 alone would apply and not the
\nprovisions of Section 26, which relate to fresh appointments and that too, only
\nin respect of a trustee and not to a hereditary trustee. Therefore, the
\ndisqualification provided under Section 26(1), if at all to be relied upon, can
\nbe only in the case of fresh appointment to the office of trustee and not to the
\noffice of hereditary trustee.\n<\/p>\n
\t15. One more argument was advanced by Mr.K.M.Vijayan by placing reliance
\non Section 47(1)(a) to the second proviso, wherein it is stated that the
\ninterest of the public generally should also be taken into consideration in case
\nof appointment of a hereditary trustee.  In our opinion, that section is not
\napplicable to the case of a hereditary trustee, as he succeeds to the vacancy
\ncaused by the death of an erstwhile hereditary trustee.\n<\/p>\n
\t16. On a combined reading of the definitions of “trustee” and “hereditary
\ntrustee” and the appointment of a trustee and the disqualification thereunder
\nfor such appointment under Section 26(1) and that of the succession of a
\nhereditary trustee to the vacancy arising in the office, the only conclusion
\nthat could be arrived is that in case of a hereditary trustee, there is no fresh
\nappointment by the Joint Commissioner, as it is by way of succession.
\nNevertheless, when a person claims to have succeeded to the hereditary
\ntrusteeship, he may be suspended, removed or dismissed only by invoking the
\ndisqualification clause enumerated under Section 53 of the Act and not the
\ndisqualification enumerated under clause (h) of sub-section (1) of Section 26 of
\nthe Act.\n<\/p>\n
\t17. For the foregoing conclusions, the submissions as to the
\ninterpretation of the expression “the institution” employed in clause (h) of
\nsub-section (1) of Section 26 and the expression “any religious institution”
\nemployed in sub-section (1) of Section 26 need not be gone into.  Hence we are
\nnot inclined to interfere with the order in the writ petition. For all the above
\nreasons, the writ appeal must fail and accordingly, the same is dismissed.
\nConsequently, interim stay is vacated and the M.P.(MD) No.1 of 2008 is also
\ndismissed. No costs.\n<\/p>\n
ss<\/p>\n
To<\/p>\n
1. The Commissioner
\n    Hindu Religious & Charitable Endowments
\n    Nungambakkam
\n    Chennai 600 034<\/p>\n
2. The Joint Commissioner
\n    Hindu Religious & Charitable Endowments Department
\n    Sivagangai<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court S.Ramakrishnan vs S.Marimuthu on 23 December, 2009 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 […]<\/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":[8,13],"tags":[],"class_list":["post-53081","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nS.Ramakrishnan vs S.Marimuthu on 23 December, 2009 - 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\/s-ramakrishnan-vs-s-marimuthu-on-23-december-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"S.Ramakrishnan vs S.Marimuthu on 23 December, 2009 - 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