Madras High Court
K.V. Harikrishnan, P. Shankar, M.K. ... vs The Advocate General High Court on 5 March, 2007
Author: S. Rajeswaran
Bench: S. Rajeswaran
ORDER S. Rajeswaran, J.
1. This application has been filed by plaintiffs 3 to 5 to appoint the applicants 1 to 3 as trustees of Thiruvengada Mudaliar Charities to take charge and administer the Thiruvengada Mudaliar Charities as per scheme decree dated 6.10.1950 framed in C.S. No. 709/1948 on the file of this Court.
2. The applicants who are grandsons of deceased Thiruvengada Mudaliar filed the above application to appoint them as trustees to Thiruvengada Mudaliar Charities as per the scheme decree dated 6.10.1950 framed in C.S. No. 709/1948 by this Court.
3. According to them after the death of their grandfather Thiruvengada Mudaliar, his son through his 2nd wife Mr. Ramachandran was managing the trust properties. The said Ramachandran died on 9.11.2000. Thereafter a fit person was appointed by Hindu Religious and Charitable Endowment department and various suits have been filed by the subsequent purchasers of the trust properties. The HR & CE department ought not to have appointed a fit person when legal heirs of Thiruvengada Mudaliar are available. As per the scheme decree, trustees are to be appointed among the legal heirs of Thiruvengada Mudaliar by this Court. Therefore they filed the above application.
4. The Commissioner, HR & CE department filed a counter affidavit opposing the above application. According to him, the fit person was appointed on 10.3.1988 and therefore the same cannot be questioned after a period of 17 years. It is stated by the Commissioner that the power is vested with the Joint Commissioner to modify a scheme settled in any court in the interest of proper administration of institution. Therefore the above application is not maintainable and the applicants have to approach the Joint Commissioner of HR & CE department only.
5. Heard the learned Counsel, for the applicants and the learned Additional Government pleader for Commissioner, HR & CE. I have also perused the documents filed and the judgments referred to by them in support of their submissions.
6. The learned Counsel for the applicants submitted that the HR and CE Act will not apply to the Trust as there is no specific endowment by the late Thiruvengada Mudaliar as contemplated under Section 6(19) of the HR & CE Act. He further submitted that in such circumstances, as per the scheme decree framed by this Court, the application is maintainable and the applicants are to be appointed as trustees as they are the grandsons of late Thiruvengada Mudaliar. He relied on the decision of the Hon'ble Supreme court (Kuldip Chand v. Advocate-General to Govt., of H.P.) for the proposition that it must be proved that the donor intended to divest himself of his ownership in the dedicated property and a dedication would mean complete relinquishment of the rights of ownership and proprietary. According to the learned Counsel, as there is no complete relinquishment of right of ownership of the properties by the late Thiruvengada Mudaliar there is no specific endowment warranting interference by the HR & CE authorities.
7. Per contra, the learned Additional Government Pleader submitted that there is a specific endowment by late Thiruvengada Mudaliar as per the settlement deed executed by him on 31.5.1944 and in such circumstances Section 6(19) and Section 118(2)(b)(i)(ii) of the HR & CE Act will hold the field and therefore the applicants would have to approach only the authorities of the HR & CE Act under Section 63 and 64 of the HR & CE Act. He relies on the decision of this Court reported in 1977(II) MLJ 188 (Krishnaraju Chetty v. Commissioner of H.R. & C.E.,) and the decision of the Supreme Court (Lakshmikumara Thathachariar, T. v. The Commissioner H.R. & C.E.) for the principle that the duty to fill up the vacancy among trustees has been imposed on the authorities under the Act will apply even to schemes framed by the High court prior to passing of the H.R. & C.E., Act and the scheme originally framed by the High court can be; modified or cancelled by the Joint Commissioner. The learned Additional Government Pleader has also relied on the decision (The Commissioner HR and CE Administration Department v. C.V. Sudharsan) for submitting that the facts of the present case will prove that there is a specific endowment as the founder of the trust dedicated the properties after divesting himself and he has also stated the object for which the dedication was made.
8. I have considered the rival submissions with regard to facts and citations.
9. A reading of the settlement deed executed by the deceased Thiruvengada Mudaliar will make it clear that he had specifically endowed the properties for the objects stated thereon and in such circumstances it cannot be said that there is no specific endowment by the founder warranting interference of the HR & CE department.
10. Further, the counter affidavit of the commissioner, HR & CE is very specific that a fit person was appointed by the HR & CE department as early as on 10.3.1988 and the same was not denied nor disputed by the applicants. That being so, all along they have been a mute spectators to the administration of the trust properties by the fit person without challenging the same in a manner known to law. In such circumstances, no explanation has been put forward by the applicants for not approaching the court during the past 17 years. Their conduct will amount to acquiescing the action taken by the HR & CE department.
11. Once it is held that there is a specific endowment by the founder of the trust and the HR & CE Act will apply, Section 63 and 64 and Section 118 will hold the field, which means, the applicants have to approach only the authorities under the Act for appointing them as trustees. In fact, in a similar situation, a Division Bench of this Court in 1997(II) M.L.J. 188 (cited supra) held that the application for appointment of trustees was not maintainable before this Court and the applicants had to approach the appropriate authority for getting the vacancy filled up. The Supreme Court has also held in (cited supra) that schemes prior to coming into force of the 1959 Act are deemed to be settled by the authorities under the Act and such schemes framed originally by the High court can be modified by the authorities under the Act and such modification would not be construed as an attempt to set aside the decree of the court.
12. In view of the above discussions and the settled principles, I am of the considered view that the above application is not maintainable before this Court and the applicants have to approach the authorities under the HR & CE Act only.
13. In the result, there is no merit in the application and the same is dismissed. No costs.