Kerala High Court
The Commissioner vs Valliyodan Krishnan Nair on 8 November, 2012
Author: V.Chitambaresh
Bench: V.Chitambaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
THURSDAY, THE 8TH DAY OF NOVEMBER 2012/17TH KARTHIKA 1934
CRP.No. 63 of 2011 ( )
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OP.NO.2/2010 of SUB COURT, KASARAGOD
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PETITIONER/APPELLANT/RESPONDENTS 1 AND 2:
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1. THE COMMISSIONER,
MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX,
ERANHIPALAM, KOZHIKODE.
2. THE DEPUTY COMMISSIONER (ADMN),
MALABAR DEVASWOM BOARD, CALICUT.
BY ADVS.SRI.K.MOHANAKANNAN,SC,MALABAR DEVASWOM
SRI.R.LAKSHMI NARAYANAN,SC,MALABAR DEVA
RESPONDENT(S)/PETITIONER AND RESPONDENTS 3 TO 9:
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1. VALLIYODAN KRISHNAN NAIR, AGED 90 YEARS,
S/O.LATE KUNHIRAMAN, HINDU, LANDHOLDER,
RESIDING AT CHATHAKAI HOUSE, CHANDRAGIRI POST,
KASARAGOD TALUK AND DISTRICT.PIN-671 317
2. C.K.KANNAN, S/O.KUNHIRAMAN, KALNAD
VILLAGE, CHANDRAGIRI POST,
KASARAGOD TALUK AND DISTRICT.PIN-671 317
3. U.S.KARUNAN, S/O.UNNISHANKARAN,
LAXMI NIVAS, PARAMMAL PO BEKAL, HOSDURG TALUK,
KASARAGOD DISTRICT.PIN-671 317
4. B.RATHNAKARAN, S/O.R.C.RADHAKRISHNAN,
SREENATHANAM, MUKKUNOTH, UDMA HOSDURGTALUK, PA BARA-671 317
5. V.V.GANGADHARAN, S/O.B.P.AMBADI,
AMBADI NILAYAM, MALANKUNNUM PO BEKAL, HOSDURG TALUK-671 317
6. M.PADMANABHAN NAMBIAR,
S/O.C.H.KUNHIRAMAN NAMBIAR, THEJAS, KARIPPODI,
PO BEKAL, HOSDURG TALUK.PIN-671 317
7. MELEDATH KARUNAKARAN NAMBIAR,
(RTD.DEPUTY DIRECTOR OF REGISTRATION), RAVIMANDIRAM,
CHEETTAMKUNNU, THALASSERY - 1
sts 2/-
-2-
CRP.NO.63/2011
8. EDAYILLOM CHATHUKUTTY NAIR,
S/O.LATE T.KUNHIRAMAN NAIR, EDAYILLOM HOUSE,
P.O PERUMBALA, (VIA) KALANAD, KASARAGOD TALUK.PIN-671 317
R1 & R7 BY SRI.A.P.CHANDRASEKHARAN,SENIOR ADVOCATE
ADV.SMT.PRABHA R.MENON
SRI.M.KRISHNAKUMAR
R2 TO R6 BY ADV. SRI.M.SASINDRAN
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 08-11-2012, ALONG WITH CRP.NO.67/2011, THE COURT
ON THE SAME DAY PASSED THE FOLLOWING:
sts
"C.R."
V. CHITAMBARESH, J
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C.R.P. Nos. 63 and 67 of 2011
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Dated this the 8th day of November, 2012
ORDER
Can the number of Trustees exceed five in number in a temple at a given point of time under The Madras Hindu Religious and Charitable Endowments Act, 1951 (the 'Act' for short) applicable to the erstwhile Malabar area? I heard Mr.R.Lakshmi Narayan, Advocate on behalf of the Malabar Devaswom Board, Mr.M.Sasindran, Advocate on behalf of the Non-Hereditary Trustees and Mr.A.P.Chandrasekharan, Senior Advocate on behalf of the Hereditary Trustees.
2. There is a modified Scheme framed by the Deputy Commissioner of the Hindu Religious and Charitable (Administration) Department in respect of the temple in question under Section 58 of the Act. The Scheme empowers the appropriate authority to appoint Non-Hereditary Trustees not exceeding five which is within the permissible limit of five Trustees stipulated under Section 39(2) of the Act. The fact remains that there are only three Hereditary Trustees at present C.R.P.Nos.63 and 67 of 2011 2 representing the three families to whom the temple belonged and two Trustees can possibly be appointed further.
3. Section 42 of the Act states that the power to appoint Trustees under Section 39 shall be exercisable notwithstanding that the Scheme, if any, settled for the institution contains provisions to the contrary. This is sufficient indication to show that Section 39(2) of the Act holds primacy over the provisions of the Scheme as regards the total number of Trustees to be appointed in a temple. Thus only two more Non-Hereditary Trustees can be appointed in addition to the three Hereditary Trustees to make up the total number of five Trustees in accordance with Section 39(2) of the Act.
4. The court below was therefore perfectly justified in setting aside the order of the Commissioner for the Malabar Devaswom Board appointing five Non-Hereditary Trustees in the temple in addition to the three Hereditary Trustees. The power so exercised by the court below to set aside the impugned order on an application filed by a Hereditary Trustee under Section 39 (4) of the Act calls for no interference. The further question as to whether a proper enquiry was conducted under Section 39(2) of the Act or whether the Deputy Commissioner was competent C.R.P.Nos.63 and 67 of 2011 3 to sign the order need not therefore be considered.
5. The Commissioner for the Malabar Devaswom Board is at liberty to initiate proceedings afresh with notice to the Hereditary Trustees in the temple to appoint Non-Hereditary Trustees so however that the total number of Trustees does not exceed five as per Section 39(2) of the Act.
The Civil Revision Petitions fail and are dismissed. No costs.
V. CHITAMBARESH JUDGE mns/