{"id":65099,"date":"1974-02-14T00:00:00","date_gmt":"1974-02-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bava-c-chokkappa-mudaliar-ors-vs-bava-c-chokkappa-mudaliar-ors-on-14-february-1974"},"modified":"2016-10-03T22:51:53","modified_gmt":"2016-10-03T17:21:53","slug":"bava-c-chokkappa-mudaliar-ors-vs-bava-c-chokkappa-mudaliar-ors-on-14-february-1974","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bava-c-chokkappa-mudaliar-ors-vs-bava-c-chokkappa-mudaliar-ors-on-14-february-1974","title":{"rendered":"Bava C. Chokkappa Mudaliar & Ors vs Bava C. Chokkappa Mudaliar & Ors on 14 February, 1974"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bava C. Chokkappa Mudaliar & Ors vs Bava C. Chokkappa Mudaliar & Ors on 14 February, 1974<\/div>\n
           PETITIONER:\nBAVA C. CHOKKAPPA MUDALIAR & ORS.\n\n\tVs.\n\nRESPONDENT:\nBAVA C. CHOKKAPPA MUDALIAR & ORS.\n\nDATE OF JUDGMENT14\/02\/1974\n\nBENCH:\n\n\nACT:\nThe  Madras  Hindu  Religious Endowments Act,  1926  (II  of\n1926)---S.     84(1)--Scope of.\n\n\n\nHEADNOTE:\nSection\t 84(1) (b) of the Madras Hindu Religious  Endowments\nAct.  1926 as amended by Act 10 of 1946 provides that  if  a\ndispute\t arises\t as  to whether a trustee  is  a  hereditary\ntrustee\t as defined in the Act or not such dispute shall  be\ndecided\t by the Religious Endowment Board constituted  under\nthe  Act  and  no  court in the\t exercise  of  its  original\njurisdiction shall take cognizance of such dispute.\nOn the question whether a dispute as to who out of a  number\nof members of a family was entitled to succeed to an office,\nadmittedly hereditary, fell within sub-cl. (b) of s. 84(1),\nHELD : that it was not a dispute which could be\t entertained\nby 'the Board.\nThe view expressed in Sastri Ammal v. Pravalavarna  Naicker,\n1.L.R. [1957] Madras 631 and A. Krishnaswami Raja v. Krishna\nRaja, I.L.R. [1967] 3 Madras, 495, approved. [395 A]\nGopalaswami Mudaliar v. Thyagaraja Mudaliar, [1951] 1 M.L.J.\n248 overruled.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION : Civil Appeals Nos.  1792  &
\n1793 of 1967.\n<\/p>\n
Appeals\t by special leave from the Judgment and order  dated
\nthe  23rd March 1961 of the Madras High Court in Appeal\t No.
\n88 of 1958.\n<\/p>\n
M.   Natesan,  T.  V.  Krishnamurthi  Iyer,  K.\t L.  Rathee,
\nGanesan and
\nS.   Balakrishnan, for the appellant (in C.A. 1792) and\t for
\nrespondent no. 6 (in C.A. 1793).\n<\/p>\n
S.T. Desai, V. M. Tarkunde, K. Jayaram and R. Chandrasekhar,
\nfor the appellant (in C.A. 1793).\n<\/p>\n
A. R. Somnath Iyer and S. Lakshminarasu, for respondent\t No.
\n1 (in\t  both the appeals).\n<\/p>\n
A.  V.\tRangam and A. Subhashini, for respondent No.  4\t (in
\nboth the  appeals).\n<\/p>\n
K.  Jayaram, for respondents nos. 5 & 6 (in C.A. 1992).
\nThe Judgment of the Court was delivered by
\nPALEKAR, J.  These two appeals by special leave arise out of
\na  decision  of the Religious Endowment\t Board\t(hereinafter
\ncalled the Board) constituted under Section 10 of the Madras
\nHindu  Religious Endowments Act, 1926 (Madras Act No. 11  of
\n1926)  hereinafter  called  the Act.   The  Board  gave\t the
\ndecision  in  a\t dispute in O.A. No. 279  of  1946  and\t the
\nprincipal  contention with which we are concerned  in  these
\nappeals is whether the Board bad jurisdiction to decide that
\ndispute.   Other  points were dealt with in  the  course  of
\nlitigation, but since the appellants are entitled to succeed
\non the ground that the
\n389<\/span>
\nBoard had no jurisdiction to entertain the dispute, it\twill
\nnot  be necessary for us to deal with the other points.\t  We
\nshall, therefore, confine ourselves to the facts which\tbear
\nupon the point.\n<\/p>\n
The  temple  of Sri Tyagarajaswami at Tiruvarur\t in  Tanjore
\nDistrict  is  a\t well-known, ancient temple  of\t the  South.
\nThere  are 13 kattalais attached to the temple-one  of\tsuch
\nkattalais being the Ulthurai kattalai.\tThis kattalai  looks
\nafter  the  worship  and  festivals  in\t the  temple.\t The
\nmanagement  of\tthis  Ulthurai kattalai was  vested  in\t two
\nMudaliar  families.  One was the Bava family and  the  other
\nwas the Vadapathimangalam family.  The two families held the
\noffice\tof the trusteeship by hereditary succession.   Prior
\nto 1943, the hereditary trustee representing the Bava family
\nwas   one  Vaithilinga\tMudaliar  and  the   other   trustee
\nrepresenting  the  Vadapathimangalam family  was  Thiagaraja
\nMudaliar.   The\t latter is one of the principal\t parties  to
\nthis litigation but the litigation was really with reference
\nto  the\t succession to the office in the Bava  family  after
\nVaithilinga’s death.\n<\/p>\n
Vaithilinga  died in 1943 leaving behind him  surviving\t (1)
\nhis  widow Pappu Ammal (2) a daughter,, Shivakami Ammal,  by
\nanother wife (3) a son of this daughter named Brahadeeswaran
\n(4)  &\t(5) two divided brothers  Gopalaswami  Mudaliar\t and
\nPanchapakesa Mudaliar.\n<\/p>\n
The  office  of the trustee of the temple was an  office  of
\nprestige.   After Vaithilinga’s death  Gopalaswami  Mudaliar
\ntried  to instal himself as the trustee in the place of\t his
\ndeceased   brother.   But  Thiagaraja  Mudaliar\t the   other
\ntrustee,  did  not  permit him to work with  him  as  a\t co-
\ntrustee.   So Gopalaswami complained to the Board by an\t ap-
\nplication  dated  April\t 22, 1944  purporting  to  be  under
\nsection 18 of the Act.\tThiagaraja contested the application
\npointing  out  that Gopalaswami could not  succeed,  as\t the
\nhereditary  trustee and that only the widow of\tVaithilinga,
\nviz.   Pappu Ammal, should be regarded as the trustee  after
\nVaithilinga’s  death.  Thereafter on February 5, 1945  Gopa-
\nlaswami applied u\/s 42 of the Act for his appointment as  an
\ninterim\t trustee pending the dispute about succession  being
\nresolved  in a Civil Court.  He said be was the senior\tmost
\nmale  member in the Bava family and was in every way  a\t fit
\nand  proper person to be appointed an interim  trustee\ttill
\nhis succession to the trusteeship is declared by the  Court.
\nThis  application  u\/s 42 also was contested  by  Thiagaraja
\nMudaliar and Pappu Ammal, and on November 13, 1945 the Board
\ndismissed his application u\/s 42 pointing out that since the
\nright  to succession to Vaithilinga Mudaliar was in  dispute
\nthe proper course for Gopalaswami was to establish his right
\nin  a  Civil  Court.. The Board also  held  that  there\t was
\nalready\t a  trustee functioning assisted  by  the  executive
\nofficer of the Devasthan and hence, it was not necessary  to
\nappoint Gopalaswami as a fit person u\/s 42.
\nThereafter Gopalaswami commenced two proceedings.  On  April
\n3,  1946  he  filed O.S. No. 117\/1946 in the  Court  of\t the
\nDistrict Munsif, Tiruvarur for a declaration that after\t the
\ndeath  of  Vaithilinga his brother, he was entitled  to\t the
\noffice\tof  the\t hereditary  trustee  to  the  exclusion  of
\nVaithilinga’s  widow  Pappu Ammal.  To this suit  he  joined
\nPappu Ammal, his younger brother Panchapakesa and Thiagaraja
\nMudaliar,  the\tother trustee as co-defendants.\t  The  other
\nproceeding
\n390<\/span>
\nwas before the Board purporting to be one u\/s 84 of the Act.
\nThis  application before the, Board was filed on  April\t 11,
\n1946.  His contention before the Board may be set out in his
\nown  words  :  “The  last hereditary  trustee  was  Bava  C.
\nVaithilinga Mudaliar the elder brother of the petitioner and
\nhe  died  on  April 6, 1943.  On his  death  the  petitioner
\n(Gopalaswami)  has succeeded to the office and is  the\tnext
\nhereditary  trustee.  According to the custom prevailing  in
\nthe  petitioner’s  family and in the Ulthurai  kattalai\t all
\nalong  the hereditary trusteeship is only with male  members
\nand  with  the\tsenior\tmale  member  thereunder.”  To\tthis
\napplication Pappu Ammal and his younger brother Panchapakesa
\nwere  made respondents.\t The prayer in the  application\t was
\nthat the Honourable Board should enquire into the matter and
\ndeclare\t that the petitioner Gopalaswami was the  hereditary
\ntrustee\t of  Ulthurai kattalai in succession  to  late\tBava
\nVaithilinga Mudaliar.\n<\/p>\n
Out  of\t these\ttwo proceedings the  suit  in  the  District
\nMunsif’s Court was not proceeded with.\tIt was permitted  to
\nbe  withdrawn  on  April 17, 1947 on  the  ground  that\t all
\nnecessary parties had not been impleaded.  Liberty to file a
\nfresh suit was reserved.\n<\/p>\n
The proceeding u\/s 84 before the Board was contested by\t the
\nother trustee Thiagaraja and the widow Pappu Ammal.  It\t was
\nspecifically  contended before the Board that the Board\t had
\nno  jurisdiction u\/s 84 to entertain the dispute  raised  by
\nGopalaswami.  The dispute was with regard to the  succession
\nto the vacant office of trusteeship in the Bava family,\t and
\nsuch a dispute was not one falling within section 84(1)\t (b)
\nof  the\t Act which had been recently amended by\t Act  10  of
\n1946.  The contention was that this was a pure dispute about
\nsuccession to the office between members of the Bava  family
\nand the only remedy open to Gopalaswami was to, file a\tsuit
\nand  obtain the necessary declaration.\tThat contention\t was
\nrejected  by  the Board which proceeded to decide,  on\tsuch
\nevidence  as was produced before it, that Gopalaswami  being
\nthe eldest male member in the family was entitled to succeed
\nto  the\t hereditary trusteeship to the\texclusion  of  Pappu
\nAmmal.\t This decision was u\/s 84(1).  Section 84(2) gave  a
\nremedy to a person affected by the decision to apply  within
\nsix  months to the Court of the District Judge to modify  or
\nset  aside  the decision.  Accordingly\tThiagaraja  Mudaliar
\ntiled O.P. 27\/1948 in the court of the District fudge,\tEast
\nTanjore\t u\/s 84(2) of the Act, contending, inter alia,\tthat
\nthe  order of the Board was without jurisdiction  since\t u\/s
\n84(1)  (b) the Board had jurisdiction only to determine\t the
\nnature\tof the office-whether it was hereditary\t or  not-but
\nhad no jurisdiction to decide the individual claims to here-
\nditary\ttrusteeship.   Pappu Ammal was made one of  the\t co-
\nrespondents.   The point raised was treated by\tthe  learned
\nJudge  as  a  preliminary  question.   He  formulated\tthat
\nquestion in the following way :\n<\/p>\n
“A  preliminary\t question that arises for  determination  is
\nwhether the Hindu Religious Endowment Board has jurisdiction
\nu\/s   84(1)  (b)  to  declare  that  the  first\t  respondent
\n(Gopalaswami)  is  the hereditary trustee  of  the  Ulthurai
\nkettalai  after the death of Bava C. Vaithilinga  Mudaliar.”
\nIt  appears that Thiagaraja was not willing to concede\tthat
\nthe  office  of trusteeship was vested in  the\tBava  family
\nhereditarily, but for the purpose of the present dispute, he
\nconceded that the Bava family
\n391<\/span>
\nhad the right to hereditary trusteeship and the last  holder
\nof  the ‘Office was Vaithilinga Mudaliar who died  in  1943.
\nSo  there was no dispute either before the Board or  in\t the
\nDistrict Court as to the nature of office being\t hereditary,
\nbut  the only question was as to who out of the\t members  of
\nthe Bava family was entitled to succeed to this office after
\nthe  death of Vaithilinga.  After dealing with the point  at
\nsome  length the learned District Judge by his judgment\t and
\norder dated September 4, 1948 cave his finding as follows
\n“For  the above reasons I agree with the contentions of\t the
\npetitioner (Thiagaraja Mudaliar) and hold that the Religious
\nEndowments Board had no right to decide a dispute  regarding
\nsuccession  to a hereditary trusteeship. 1,  therefore,\t set
\naside  O.A. No. 279\/1946 (of the Board) dated September\t 24,
\n1947 and allow the petition with costs.”\n<\/p>\n
As  we shall show in due course this decision  was  correct.
\nAfter  this  decision, Gopalaswami should have gone  to\t the
\nregular Civil Court by way of a civil suit for a declaration
\nof  his right to succeed to the office.\t He did not  do\t so.
\nHe  went  in appeal to the High Court and, in  our  opinion,
\nfought\ta  futile  litigation which has\t culminated  in\t the
\npresent\t appeals.   We\twill  only  briefly  refer  to\tthat
\nlitigation.\n<\/p>\n
From  the  order passed by the District Judge,\ttwo  appeals
\nwere  filed in the High Court–one filed by Gopalaswami\t was
\nA.A.O.\tNo.  118\/1949.\tThe other was filed  by\t the  Board,
\nrather\tcuriously, and was A.A.O. 223\/1949.  The High  Court
\nhad to consider only the preliminary question decided by the
\nDistrict  Judge\t as to whether the Board had  the  necessary
\njurisdiction.\tThe  Bench consisting of Govinda  Menon\t and
\nBasheer\t Ahmed Sayeed, JJ _was of the view that u\/s  84\t (1)\n<\/p>\n
(b)  of\t the  Act,  the Board was  entitled  to\t decide\t the
\ndispute; and since the District Judge had not dealt with the
\ncase  on  merits the High Court remanded the matter  to\t the
\nDistrict Judge with the followings directions :
\n“The  District Judge will, in the enquiry that would  ensue,
\ndecide\tbetween\t the  competing\t claims\t of  the  heirs\t  of
\nVaithilinga  Mudaliar  as to who should\t be  the  hereditary
\ntrustee.   The\tparties\t are  at  liberty  to,\tadduce\tsuch
\nevidence as they desired.”\n<\/p>\n
After  the  above remand  Vaithilinga’s\t daughter  Shivakami
\nAmmal’ and her son Brahadeeswaran, who had not been added so
\nfar  as parties to the litigation, were made parties in\t the
\nDistrict Court.\t Thereafter Pappu Ammal field a statement in
\nthe  District Court relinquishing her rights to the  office.
\nSo the District Judge had to decide whether Gopalaswami\t had
\na preferential claim to the office as against  Vaithilinga’s
\ndaughter  and daughter’s son.  When the matter came  up\t for
\nbearing\t before\t the learned District  Judge,  the;  learned
\nJudge, rather unaccountably came to the conclusion that\t the
\ndaughter  and  the  daughter’s son  had\t been  impleaded  by
\noversight.   Their names were, therefore, dropped  from\t the
\nproceedings.  This order was passed on 9-2-1952.  Thiagaraja
\nand the daughter and her son filed two appeals A.O.    No.
\n239\/1952 and A.O. 579\/52 in the High Court against the,
\n392<\/span>
\nHigh  Court against the order of the District Judge.   By  a
\ncommon\tjudgment  dt.  23-11-1955  the\tHigh  Court  against
\nremanded  the case to the District Judge pointing  out\tthat
\nthe  learned  Judge  was  wrong\t in  not  having  heard\t the
\ncontentions of the daughter and daughter’s son and that\t the
\nclaim of Gopalaswami must be adjudicated in the presence  of
\nthe  daughter  and  daughter’s son  who\t were  most  vitally
\ninterested in the dispute.\n<\/p>\n
Atter  the  above remand the learned District Judge  by\t his
\norder dt. 24-12-1956 held that Gopalaswami Mudaliar was\t not
\nentitled  to  the  trusteeship and  since  Pappu  Ammal\t had
\nrelinquished her claim the persons properly entitled to\t the
\noffice\twere  the  daughter  Shivakami\tAmmal  and  her\t son
\nBrahadeeswaran.\t  Thus\tthe order of the Board in  O.A.\t No.
\n279\/46\tdeclaring Gopalaswami as the hereditary\t trustee  in
\nsuccession  to\tVaithilinga Mudaliar was set  aside  by\t the
\nDistrict Judge.\n<\/p>\n
It  was\t against this judgment of the  District\t Judge\tthat
\nGopalaswami  filed  appeal no. 88\/1958 in  the\tHigh  Court.
\nPending that appeal he died and his son Kalyansundram and G.
\nChakkappa   were   brought   on\t  record   as\this    legal
\nrepresentatives.  The deceased brother Panchapakesa, who was
\na respondent in that appeal, also got himself transposed  as
\na co-appellant claiming the right to trusteeship in  himself
\nafter  the  death of Gopalaswami.  Panchapakesa\t also  died.
\nThereupon ‘his son P. Chakkappa was brought on-record as the
\nlegal representative.  Son Kalyansundram died and his  widow
\nKamal\tAmmal  was  brought  on\t record.   On\ta   detailed
\nconsideration  of  the\tquestions involved  the\t High  Court
\n(Rajagopalan  and  Rajagopalan lyyengar,  JJ)  reversed\t the
\nfinding\t of the District Judge and confirmed the finding  of
\nthe  Board that Gopalaswami was entitled to succeed  as\t the
\nhereditary ‘trustee.  The court observed “In this appeal  we
\nare  concerned only with the question whether the  order  of
\nthe  Hindu Religious Endowment Board declaring the right  of
\nBava  Gopalaswami with regard to the Ulthurai  kattalai\t was
\nwell-founded  or not.  We are of the opinion that  the\tsaid
\norder  of  the\tEndowment Board in  O.A.  No,  279\/1946\t dt.
\nSeptember 24, 1947 is correct and that no grounds have\tbeen
\nmade  out  for setting it aside.” The judgment of  the\tHigh
\nCourt is dt.  March 23, 1961.  The appeals with which we are
\nnow  dealing  are  appeals from that  judgment.\t  The  first
\nnamely C.A. 1792\/67 is filed by Thiagaraja Mudaliar and\t the
\nsecond\ti.e.  C.A. 1793\/67 is filed by\tthe  daughter’s\t son
\nBrahadeswaran and Shivakami Ammal.\n<\/p>\n
As stated at an earlier stage of the judgment we are of\t the
\nview that the Board was not entitled u\/s 84 to entertain the
\ndispute and, therefore, the District Judge was right in\t his
\nview  taken  by\t him  on 4-9-1948  that\t the  Board  had  no
\njurisdiction  to decide the individual claims to  hereditary
\ntrusteeship.  That finding was reversed by the High Court on
\n28-11-1950  and\t since\tthe  appeal  had  not  been  finally
\ndecided.  there was no question of an appeal to this  court.
\nAs  the question was one of jurisdiction which went  to\t the
\nroot  of the matter, perhaps, special leave to appeal  might
\nhave been granted if one were filed.  But it does not appear
\nthat  this  course  was taken.\tTherefore, we  have  now  to
\nconsider  the  question of jurisdiction and we\tregret\tvery
\nmuch  that ‘all this litigation for so many years  has\tbeen
\nmerely a waste.\n<\/p>\n
\t\t\t    393<\/span><\/p>\n
Section\t 84 of the Act, amended by Act 10 of 1946 reads\t as,
\nfollows :\n<\/p>\n
“84(1) If any dispute arises as to-\n<\/p>\n
(a)  whether  an institution is a math or temple as  defined
\nin this Act,\n<\/p>\n
(b)  whether a trustee is a hereditary trustee as defined in
\nthis Act or not, or\n<\/p>\n
(c)  whether  any  property or money endowed is\t a  specific
\nendowment  as defined in this Act or not such dispute  shall
\nbe decided by the Board and no Court in the exercise of\t its
\noriginal  jurisdiction\tshall take cognizance  of  any\tsuch
\ndispute.\n<\/p>\n
(2)  Any person affected by a decision under sub-section
\n(1)  may, within six months, apply to the Court to modify or
\nset aside such decision;\n<\/p>\n
(3)From every order of a District Judge, on an application
\nunder sub-section (2) an appeal shall lie to the High  Court
\nwithin three months from the date of the order;
\n(4)Subject to the result of an application under sub-
\nsection(2)  or\tof an appeal under sub-section\t(3),  the
\ndecision of….the Board shall be final.\n<\/p>\n
Sub-Section(1) refers to 3 kinds of disputes which  only
\nthe  Board”  has jurisdiction to decide.  The Board  is\t the
\nBoard constituted by the State Government u\/s 10 of the Act.
\nThe  jurisdiction of the Civil Court to entertain the  three
\ndisputes  is excluded.\tSection (2) gives a person  affected
\nby the decision of the Board to apply to the court to modify
\nor  set aside such a decision The court referred to  is\t the
\ncourt  of the District Judge within whose local limits\tthe-
\ntemple\tis. situated. (see section 9(3) of the-\t Act.)\tSub-
\nsection.  (3) provides for an appeal to the High Court\tfrom
\nevery order of the District Judge, (in an application  under
\nsub-section   (2).   Sub-section  (4)  provides\t that\tthe,
\ndecision of the Board is final subject to the result of\t the
\napplication under sub-sections (2) and (3).
\nIn the present case as already pointed out Gopalaswami\twent
\nbefore\tthe  Board with a claim that he was  the  hereditary
\ntrustee\t of the temple after the death of his elder  brother
\nVaithilinga  to the exclusion of every other member  of\t the
\nBava  family.  He had a younger brother\t Panchapakesa.\t But
\nGopalaswami claimed that being the eldest male member of the
\nfamily he alone was entitled.  Vaithialinga had left be-hind
\nhim  a widow, a daughter and daughter’s son.  But  they\t too
\nhad  to\t be  excluded because the  succession  descended  by
\ncustom or usage to the eldest male member of the family.  In
\nother  words, Gopalaswami’s claim was a claim to succeed  to
\nthe  office  of hereditary trusteeship to the  exclusion  of
\nevery  other  member of the Bava family.  No  body  disputed
\nthat the office held by Vaithilinga Mudaliar was that of  a.
\nhereditary  trustee.   It appears that\tThiagaraja  Mudaliar
\nhad, disputed this at an early stage but for the purpose  of
\nthe present dispute he had
\n394<\/span>
\nwillingly  conceded  that  the office  held  by\t Vaithilinga
\nMudaliar  was  that of a hereditary trustee.  So  there\t was
\nunanimity amongst all the parties that the office was one of
\na hereditary trustee and the only dispute was who out of the
\nBava  family, was entitled to succeed to that  office  after
\nVaithilinga’s  death.  In the normal course any-body  making
\nsuch  a claim for the exclusion of others would have had  to
\nfile  a suit .in the Civil court for a declaration  that  he
\nwas entitled to succeed to the office.\tIn fact, Gopalaswami
\nhad done, this by filing a suit in the court of the District
\nMunsif.\t But later he withdrew the suit with liberty to file
\na  fresh suit.\tNo fresh suit was filed by him,\t apparently,
\nbecause\t the Board before whom he went with  this  complaint
\nagreed\tto decide the dispute inspite of the  opposition  of
\nthe  widow  Pappu  Ammal and the  other\t trustee  Thiagaraja
\nMudaliar.   The question, therefore, is whether the  dispute
\nthus  raised  before the Board was one which  can  be  truly
\ndescribed as a dispute falling under’ sub-clauses (a) (b)  &\n<\/p>\n
(c) of section 84(1) of the Act.  Sub-clauses (a) & (c)\t had
\nno application.\t The contention on behalf of Gopalaswami and
\nhis heirs was that it was a dispute falling under sub-clause\n<\/p>\n
(b).   That  was contested and we have to see  whether\tthat
\ncontest was justified.\n<\/p>\n
Both  the  words  “trustee”  and  “hereditary  trustee”\t are
\ndefined under the Act.\tTrustee is defined in section  9(13)
\nas follows :\n<\/p>\n
“Trustee  means\t a person by whatever designation  known  in
\nwhom the administration of religious endowment is vested and
\nincludes any person who is liable as if he were a trustee.”
\nWhen  the  Act\tcame to be amended by Act  10  of  1946\t the
\noriginal definition of “hereditary trustee” given in section
\n9(6) was recast as follows
\n“Hereditary trustee”-means the trustee of a math, temple  or
\nspecific  endowment succession to whose office\tdevolves  by
\nhereditary right or is regulated by usage or is specifically
\nprovided  for by the founder so long as such scheme of\tsuc-
\ncession is in force.”\n<\/p>\n
These two definitions were advisedly introduced in the\tAct,
\nbecause the Act wanted to make a clear distinction between a
\nhereditary  trustee and a non-hereditary trustee so  far  as
\nthe   Hindu  Religious\tendowments  were  concerned.\tNon-
\nhereditary  trustees were subject to greater control by\t the
\nBoard under the Act, whereas the hereditary trustees enjoyed
\nlarger\tprivileges and the control over them was  also\tmuch
\nless.\tIt was, therefore, expected that when the  Act\tcame
\ninto  force  a\ttrustee was likely to claim that  he  was  a
\nhereditary  trustee  and if such a dispute was\traised\tthat
\ndispute\t was  to be exclusively decided by  the\t Board.\t  In
\nother words, if a trustee, a$ defined in the Act, wanted  to
\nclaim that he is a hereditary trustee also as defined in the
\nAct,  it was necessary for him to approach the Board  for  a
\ndecision  of the question and obtain a declaration that\t the
\noffice\tbe  held was not just of an ordinary trustee  but  a
\nhereditary trustee.  Such a dispute can never arise when  it
\nis conceded on all hands that the office is of a  hereditary
\ntrustee.   In the present case the whole question was as  to
\nwho,  out  of a number of members of the  Bava\tfamily\t was
\nentitled to succeed to the office of the hereditary trustee.
\nGopalaswami was not claiming a
\n395<\/span>
\nhigher\tstatus\tthan what he was holding.  Either he  was  a
\nhereditary trustee or nothing.\tIn our opinion, the  dispute
\nraised by Gopalaswami before the Board was one which did not
\nfall  under sub-clause (b) of section 84(1) and,  therefore,
\nit  was\t not a dispute which, could be\tentertained  by\t the
\nBoard.\n<\/p>\n
A  similar question had arisen in the Madras High  Court  in
\nSastri Ammal v. Prayalavarna Naicker(1).  That was under the
\nMadras\tHindu Religious and Charitable Endowments Act 19  of
\n1951  which  replaced  Act  II of 1927\twith  which  we\t are
\ndealing.   Section  57(b) of that Act  contained  provisions
\nwhich  are similar to section 84 of the Act.  Section  57(b)
\nread as follows :\n<\/p>\n
“Subject  to the rights of suit or appeal  hereinafter\tpro-
\nvided  the Deputy Commissioner shall have power\t to  enquire
\ninto and decide the following disputes and, matters :\n<\/p>\n
(b)Whether a trustee holds or held office as a\thereditary
\ntrustee.”\n<\/p>\n
It was held that a dispute between the claimants to  succeed
\nto  an\toffice\twhich,\tit is  admitted\t on  all  hands,  is
\nhereditary  is not within the scope of section\t57(b).\t The
\nlearned Judge observed at page 636 as follows :
\n“It  is\t hot enough to show that the last  holder  held\t the
\noffice as hereditary trustee.  There can be no dispute about
\nthat;  and-there can be no need to determine  that,  because
\nthe  dispute  is  only who is entitled\tto  succeed  to\t the
\nhereditary  office.   Obviously a claim to  succeed  to\t the
\noffice under such circumstances would fall outside the scope
\nof section 57(b).” It is rather interesting to see that\t the
\nHigh Court’s decision in the present case which was reported
\nin  Gopalaswami\t Mudaliar v. Thayagaraja  Mudaliar  (2)\t was
\ncited  before the court.  But the learned Judge declined  to
\nfollow\tit on the ground that it was unhelpful\tin  deciding
\nthe  question  at issue.  Certain  elements  of\t distinction
\nbetween the provisions of section 84 of the Act and  Section
\n57(b) of the 1951 Act were suggested.  But, with respect, we
\nmust  say there is really no difference.  The dispute  about
\nsuccession  to\tan admittedly hereditary office is  as\tmuch
\noutside the scope of section 84(1) of the Act as of  section
\n57(b)  of the 1951 Act.\t Then again In A. Krishnaswami\tRaja
\nv. Krishna Raja(3) the same point again\t       copped up u\/s
\n57(b)  of  Act\t19  of 1951 and\t the  court  held  that\t the
\njurisdiction of the Deputy Commissioner u\/s 57(b) of the Act
\nwas confined to a decision whether a trustee held office  as
\na  hereditary  trustee\tThe  Deputy  Commissioner  was\t not
\ncompetent to go, into the other question as to which one  of
\nthe  competing\tclaimants  was\tthe  hereditary\t trustee  or
\nwhether\t the  competing\t claimants  were  joint\t  hereditary
\ntrustees.  That had to be worked out in a separate suit.  In
\nour  opinion,  the, view expressed in both  these  cases  is
\ncorrect\t and though they are not directly on the  provisions
\nof section 84(1) (b) of the Act we have no doubt  whatsoever
\nthat the same principle applies here.\n<\/p>\n
(1) I. L. R. 1957 Madras 631.  (2) 1951 (1) M. L. J. 248.
\n(3)  I. L. R. 1967(3) Madras, 495.\n<\/p>\n
396<\/span><\/p>\n
While  it may well be that the Board before  exercising\t its
\njurisdiction to determine the character of the\ttrusteeship-
\nhereditary of other–may have to decide tentatively  whether
\nthe petitioner is a stranger without any locus standi or the
\nheir to the last trustee, in this case even that provisional
\nfinding on a collateral fact is uncalled for since the issue
\nit had to decide-hereditary trusteeship-was admitted by both
\nsides.\t We make it clear that after having got\t the  entire
\nproceedings dismissed as without jurisdiction on the  ground
\nthat  no  dispute  regarding the hereditary  nature  of\t the
\ntrusteeship  at all arose it is not open to  the  contestant
\nThiagaraja  Mudaliar  to  resile from that  stand  in  other
\nproceedings.  It is also obvious that our judgment is  based
\non  the\t Act  as  it was  and  cannot  preclude\t action,  if
\navailable, under any new or other enactment.
\nIt follows, therefore, that the Board had no jurisdiction to
\ndecide the dispute of succession.  The jurisdiction was with
\nthe  ordinary Civil Courts of the land.\t  Consequently,\t the
\ndecision  of the High Court ‘in A.S. No. 88\/1958 dt.   March
\n23,  1961 has to be set aside, and the order passed  by\t the
\nDistrict  Judge\t of  East Tanjore in O.P.  No.\t27\/1948\t dt.
\nSeptember  4,  1948 restored.  Having regard to\t the  course
\nthis litigation has taken, the proper order as to costs,  in
\nour opinion, would be to direct that the parties shall\tbear
\ntheir own costs throughout.\n<\/p>\n
P.B.R.\n<\/p>\n
Appeal allowed.\n<\/p>\n
397<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bava C. Chokkappa Mudaliar & Ors vs Bava C. Chokkappa Mudaliar & Ors on 14 February, 1974 PETITIONER: BAVA C. CHOKKAPPA MUDALIAR & ORS. Vs. RESPONDENT: BAVA C. CHOKKAPPA MUDALIAR & ORS. DATE OF JUDGMENT14\/02\/1974 BENCH: ACT: The Madras Hindu Religious Endowments Act, 1926 (II of 1926)—S. 84(1)–Scope of. HEADNOTE: Section […]<\/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-65099","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBava C. Chokkappa Mudaliar & Ors vs Bava C. 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