Karnataka High Court
Mr Subash Chandra Naik vs The State Of Karnataka on 29 November, 2010
Equivalent citations: 2011 (1) AIR KAR R 577
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE3fiTf)AY OF NOVEMBER, 20105]-.G.
PRESENT ":uK
THE HON'BLE MR. JUSTICE V'
AND
THE HONBLE MRS. JUSTICE 4I3..I1/'.1NAGARATIII'IA "
WRIT APPEAL N0s.28"1 é:2s19/2O1oj"C/°v;"" '
2761-2762/2010,__W.A.NQ..'3'1V13[2010~{GvM-R?/C).
WA.Nos.2818~2819/2010-1'AV '
BETWEEN:
MR SUBASH C1#IANDI>,A"N'AIK.__T. "
S/O LATE Ew.SAD'ASH:VA NAIK "
AGEDA'BOUT:;62 Y7;Z'ARS,.«"R/AT"ULLIPPADY
GUTHU II_OIJSE,P._OST'AND VILLAE MALALI
VIA, I<I'NNII:AM.EI;A';A<BANTw'ALA TALUK
DAKSHINA RANNADA DISTRICT
- -_ APPELLANT
(Eyf Sri; SHASHI SHETTY FOR M /S SHETIY AND
1' HEGDE ASSTS.)
ARI)';
1 THE STATE OF KARNATAKA
I I REP BY ITS SECRETARY
' DEPARTMENT OF HINDU RELIGIOUS
ENDOWMENTS, M S BUILDING
BANGALORE-560 001
H 2 THE COMMISSIONER FOR HINDU
RELIGIOUS INSTITUTIONS AND
CHARITABLE ENDOWMENTS
CHAMARAJPET
BANGALORE-560 O18
3 SR1 U TARANATH ALVA
S / O LATE K C ALVA
AGED ABOUT 69 YEARS, R/ AT "KAVIRAJ"
KADRI KAMBALA ROAD
COSMOS LANE, KADRI
MANGALORE575 004
4 SR1 RAMESH NAIK
S /O LATE VENKAPPA NAIK : '
AOED ABOUT 83 YEARS
ULLIPPADY GUTTU HOUSE . ._
P.O. AND VILLAGE, {VIA}'~ .
KINNIKAMBALA
BANTWAL TALUK,__ DK
5 MR ARUN KUMAR"-ALVAD _ I
S/O LATEH SANTA ALVAf~'
AGED ABOUT SSARS _ _ TV "
"LOTUS :KRES<:ENT"._. FLAT NOEI«'--
NO.169 :1 BLOCK. 'H S-TAGli'f-- ,
HMT :LAYOIIT,' 'V1DY'ARANYAP_UPA
EANOALO--RE--56o_ 09": ~ " I
""" .,.RESPONDENTS
(By SriV§'.«SR_NATSA";P«. F'O_.RII--.,.R:RAJAGOPALAN, ADV & K B EHANDARI FOR. R4 ,_ "S_R1' JAI KUMAR.S.PATIL FOR S.R.RAV1PRAKASH-FOR R3, SR1 K KRISHNA, AGA FOR R1 & R2 M;/S SUBHARAO & COMPANY FOR R5} APPEAL IS FILED U/S 4 OF THE I"-KARNATAEA HIGH COURT ACT PRAYING TO SET ASIDE THE" ORDER PASSED IN THE WRIT PETITION NO';'7Z16j_?'-68.;*'2O09 DATED 11/O6/2010. wA.1§I'os.2761-2762 OF 2019 A EETWEEN:
ARUN KUMAR ALWA S/O LATE H SANTA ALVA AGED ABOUT 57 YEARS "LOTUS KRESCENT", FLAT NO FF--1, NO.169 II BLOOK, II STAGE, H.M.T LAYOUT E I, ,/ VIDYARANYAPURA BANGALORE--56O 097 APPELLANT [By M/S SUBBARAO & COMPANY] AND :
1 THE STATE OF KARNATAKA 1, REPRESENTED BY ITS SEcRETARY'*' DEPARTMENT OF HINDU _RELI(3gIOUS ENDOWMENTS, M S BUILD-ENG ' BANGALORE-560 001 "
2 THE COMMISSIONER FOR FIINDIOJ 'I _ RELIGIOUS INSTITUTIONS 'AND-._ " V _ CHARITABLEEND~OW}'.€['ENTS.._ ' BANGA_:,ORE§5.5O»Q~18:- _ 3 SR1 U5TAR"ANA'PHA'A§;VAw.. A 8/0 AGED ABOUT 68 YEARS KADRI« ROAD .
COSMOS L.ANIE,. RADR1 1vLANOALORE--S75 _o'c4 ' 4 .RAMESH'NA1I'=:
/O LATE VENEARRA NAIK , AGED_A}3OUT 82 YEARS ' V. » .ULLIPPA£3Y_ GUTTU HOUSE VILLAGE, MALALI {VIA} . "'vKINN'IKAD;iBAIIA BARDMAL TALUK, DAKSHINA KANNADA RESPONDENTS S SE: KKRISHNA, AGA FOR R1 3: 2 SR1 JAI KUMAR.S.PA'I'IL FOR SR£.S.R.RAVI PRAKASH FOR R3, SR1 SRWATSA, FOR SRI.R.RAJAGOPALAN FOR R4] THIS WRIT APPEAL IS FILED U/ S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRI PETITION 1:
7167-68/2009 DATED 11/O6/2010.
WA.No.3II3/2010 BETWEEN:
SRLUTARANATHA ALVA AGED ABOUT 69 YEARS S/O LATE K.C.ALVA R/O' KADRE KAMBALA ROAD COSMOS LANE, KADRI MANOALORE-575 004 NOTE: SENIOR CITIZEN BENEFIT NOT CLAIMED' A (By Sri: JA1 KUMAR.S.PATIL FOR SR: ADVS.] - " : I AND:
1 THE STATE OF 2 BY DEPA_RT1VI'ENT"OP".HINDUfRELIGIOUS EN_DOWMEN'I'f3, Tx.'E,S..BLT.ILDING BANGALORE--56O _ 00 _1' ' ' ; TB_E COIv§MIS'SIO'NER FOR I' "eB;INDU RELIGIOUS INSTITUTIONS AND CHARITABLE ENDOWMENTS '' TCVBAVIARAIRET ABAN.g:;AI;ORE-560 O18 SIT~E.ASH CHANDRA NAIK AGED ABOUT 62 YEARS S10 LATE B. SADASHIVA NAIK a. " ' R/O ULLIPPADY GUTHU HOUSE =. _,5POS'F AND VILLAGE MALA VIA KINNIKAMBLA BANTWALA TALUK DAKSHINA KANNDA DISTRICT MR ARUN KUMAR ALVA AGED ABOUT 58 YEARS S/O LATE H. SANTA ALVA "LOTUS KRESCENT" FLAT NO.FF--1, NO.169 H BLOCK, H STAGE, H.M.T LAYOUT 7% VIDYARANYAPURA *:
BANoALORI:--56o 097
5 SR} RAMESI-I NAIK AGED ABOUT 83 YEARS S / O LATE VENKAPPA NAIK ULLIPPADY GUTTU HOUSE P.O & VELLAGE, MALAI, U/TA] KINNIKAMBALA BANTWAL TQ DAKSHINA KANNADA RESPONb_i1:NTS_~.,j: ;_. A' {By Sri: SRIVATSA FOR SR1.R.RAJAOORgm_m1§Tj"FOR . R5] «. SRLKKRISHNA, AGA FOR R1 & R2;;*"SR1.K,SHAsH:
SHETTY FOR R3, M/S SUBBA RAO :& C:O1\{IPANY._I*'iORV.R4_) . THIS WRIT APPEAL SIS,F1LED"'*U/Sigé;.iOF "j;'H1~:
KARNATAKA HIGH COURT ACT'».3,?RAY11\i__GTO-._SE'f"'ASIDE ' THE ORDER PASSED IN THE WRIT-. PEFITIQN NO. 7167-68 /2o09{OM-R/C), ] DATED~~1 .1f/~06/A2010.' ~ BEING. RESERVED AND COMING ON FOR PRON.OUNoEME_NT. OF JUDGMENT THIS DAY. NAGARATHNAVJQ' DELIVERED THE FOLLOWING- _ w'_,¢UnGMENT " . €'W.-ri.t Appeai 'Nos 28 1 8-2819/2010 is filed against the __orrj.er 10 passed by the learned single Judge in W.'P_:1§io.71.f3f;7:;168/2009. Writ Appeal Nos. 2761432/2010 His a1so"fi1ed against the aforesaid order. While the first of the "'i-h'afore'Said cases is filed by the first petitioner in the aforementioned writ petitions and the Second of the writ appeals are filed by the second petitioner in the aforesaid . 5;
2», I W"
W: 6 2w writ petitions, Writ Appeal Nos. 3113/2010 and 3125/2010 is filed by the third respondent in the aforementioned writ petitions. Since these writ appeals arise out of the order passed in the Writ petitions, they have _ together and disposed of by this common O1'd'3'1"'." » V T'
2. For the sake of convenience,Hmth'e p_part;iesVl"
referred to in terms of their status the Judge. _ p _ _ _. V
3. A temple by name Polali yRaj'arajeshWarti«Temple which is claime'd"t'to.:bje olne"of"thelold'e'st*'temp1e in the District of Dakshiria lZ.an11adlaf as 'A' Grade Temple has four Heredlitary.'1'grustees'hailing from different families. Two pg of _a1'eu frorn"'Buntv Families, known as Ullipady Guttu and"AVmmunijel"Guttu. The other two Hereditary Trustees are aiesaidto'l."belA'.Ihelonging to the family of Archakas and the 'V family ofiihantri respectively. The four Hereditary Trustees l:.,haVe.._.'tolllelect the Managing Trustee from amongst them.
-- According to the petitioners for the last several decades, the " "Managing Trusteeship used to be held from among Ullipady Guttu and Ammunje Guttu families. In the year 1942, one Sri. Ramanath Marla succeeded to the post o?f Hereditary 'L2 2"
z ,2
--:7:+ Trustee of the Temple from Ullipady Guttu family when he was part of the Ullupady Joint Family and was residing at Malali Village and succeeded to the Hereditary Trusteeship under the Aliya Santhana Law. That the third respondent and his mother had filed O.S.No.3l/1950, V. subordinate Civil Judge, Mangalore and by l decree dated 31.3.1953, the thirdmlreapo'ndentV':'and'=:l1is'j mother and others had taken their shareand separated"
Ullipady Guttu Family as a1so'--v_ofi..ythe.lloa,sis;._{)f_: also it passed in the said litigation" 16h/1952. According to the petitioners, 'determining the shares Vinlllthe;irespleictive'propertieslowned by the Ullipady Guttu Flamlily, one _Llils--sjt1es.inVOlVed was with regard to the Hereditary apart from certain customary and 1ia'oi}..i.ti.e's which were to be performed by the personp ".?.Vl;IO:v"v].1:':ll1i3I'i'[€3Cl, the Hereditary Trusteeship, in the foi'm*of and also performing obligations at Polali [Temple andhvalso at Ullipady Guttu House which includes the l..fperi'orrnance of Daivadakola periodically . According to the petitioners, after the demise of Sri. Ramnath Marla, " HZ1\l{kamma's successors were allotted the Trusteeship of the temple and in View of the decree of partition her successor was Sri. Ramesh Naik--41h respondent who became the 'l hereditary trustee. It is the case of the petitioners that on the death of Ramanath Marla, Sri.Ramesh Naik who succdeeddead to the Hereditary Trusteeship could not have trarisferred._j:the[ H trusteeship to a non--member of Joint Family.,vvitho0ut._the'"
consent and concurrence of the family "mernb_e'rs'~.__i.e,.,Tf descendents of Akkamma Naik_4who0'a,re'i~ as follvovvszdd Ramesh Naik, [b] Sri. Subash Naik. 0(c}$ri..':¢fayara1n Alva, [cl] Sri. Arunkumar'~Alva'{0.te}':.4"_iri.jSi1.resh (fl Sri. Uday Kumar Alva and [g] Srr.-A
4. Accordin pp representation was made by the trusteeship in favour when the same came to the knowledge of. Alva, he made a representation to Deputy Commissioner on 12.10.2008 representation on 10.3.2009. The other meIrIbers.,4a1so ri';a.::1e representations. In the meanwhile an A enquiry was conducted by the jurisdictional Inspector of the of Hindu Religion Endowments and he 00 pvdsubmijtied his report on 15.1.2009. According to the u0"'--.;petitioners, the Commissioner without considering the ~ iobjections raised by the petitioners and the other members of his family appointed the third respondent as a Hereditary Trustee by order dated 18.3.2009 which is pi;fdL1CCd as J.»-
Annexure--G. It is the case of the petitioners that Hereditary Trusteeship couid not have been transferred at the instance of one of the Hereditary Trustees without the conseritdtdoi": on other ciaimants to a person who has no right to"succeed' V' one who is separated from the Jointdiilfamily by decree of partition and that the:4'th'ir.d respondentn separated from the Uiiipagly-..,/ncdjfuttu also V contended that the 2"? responde'rit'{Cornrnissionercould not have exercised the power VA'_{:'..(v')"1r._1_missioner who had no jurisdictior1':-two as his order is opposed the Trusteeship. It is the conitentiodngfof the Commissioner did not issue family members including the petitionersiflh Accord'1ngiy';V the writ petition was fiied __thatthe....i.mpugned order dated 16.3.2009 was 'Vio1at.iyev._d0f;"vr..£}§fit't--ic1es 14, 19, 25, 26 and 300A of the Condstitutiodvrr India and that the order was passed in contravention of the Hereditary Trusteeship and accordingly, it the petition sought quashing of the impugned order ' a direction to treat the first petitioner as the hereditary "trustee as he is the next surviving male member of the Uliipady Guttu Family was aiso sought. 'E.//I ~--: 10 :-
5. in response to the said writ petition, the first and second, the third and 413* respondents have filed their statement of objections.
6. The first and second respondents in the -- objections stated that after one"Sri'.--Raman_atha._ lV\:/larlaif Sri.Ramesh Naik was the successor A'thef"o_ff1ce Hereditary Trustee from Ullipadyep Guttu he T' retired on medical grounds and--~---th'ere'after thevvs.enf<)r most male member of the said office and after hearing' the second respondent--Ct)r12mi:ssi'one:r_._passe.c1 :f_\}pv11ep appointing the third res_pondeVnt~";1--s_Iflerleditaiy Trustee of the tempfe. It is also ffstated' consent of descendants of Smt.AKka.mma Vbranch was not necessary for as,_they the youngest in the Ullipady Guttu AFanfiiityxarid..Vev'elii.iothenNise, the claims of the petitioners had beeAn~«.__cor;sidei*ed by the second respondent who had also the report of the Inspector with reference to the produced during the hearing of the claimants and it _passed the orders on merit. That the senior--most members had given their consent in favour of the third respondent and that the consent of the younger members was not necessary. According to these official respondents, there is no mention ,_//' .
--: ll :-
of trusteeship in the partition deed and it has not been given to any particular branch of the family that under Section 68 of the Act and in View of the order pas.seid_"i.in W.P.No.13983/2005 by this court, the dispute?!mr'egardihgj_ Hereditary Trusteeship has to be dec*ided:~.V «htiieidd Commissioner and cannot be entertained by't.he._CiviE=Court C as there is a bar for the Civ-ii. Cou:.'t"to disputes and the second respondent,' Commissioner; has the jurisdiction to appoint H4_er.editary whichuhas been rightly done in V the instant the Deputy Commissioner proposal to the Commissioneariiwhoibis'the_:prescrib'ed authority in respect of category'4»_A" the office of the Hereditary Trustee has to bepiriheiitedfiby succession, but when there is .__a a1jnong"Lhe...farni1y members, the authority under the "Act'vhave'-.the_ right to decide the issue after hearing the parties as the court in W.P.No.i3983 / 2005. That the Ccmtmisvsioner has rightly not accepted the report of the V' ifllnspector as it is opposed to law of succession and the ' documents produced during the hearing of the matter before Commissioner. Accordingly, the officiai respondent fvf sought dismissai of the writ petition.
-: E2 :-
7. The third respondent in his objection statement contended that the Writ petition was misconceived. It was submitted that it was a practice that the senior--most_:'1nal._e member of the Ullipady Guttu Family was to be _ the Hereditary Trustee to Sri. Durga Para1'nesh_wa'ri and it " * Sri.jRajareshwari Temple and the saidf governed by the Madras Aliya -Santhana LaVv;'v'l"ff:1i1_at lone Smt.U11ipady Muthekke was thel>"alncestra1"'grandmother of respondent No.3 wh'o.4_._"':p«--hac--i_: ".._§2hildren by name Smt.U.Seethamma Mar1a,__SVrnt,Llllakshrni'Marla and others. That Sri.Thimrriappa. 33S/o.S1nt.'U."LaJ~ishmi Marla being the senior¥niost me1xnberl._lof'VlJllipady Family at the relevantvlpoint of wast'-appointed as hereditaiy trustee and continued inVltheA'~said': post till 1944. Subsequently. p_vsri.F_§a3n1ariatha Marla......S/o.SIi.U.Seethamma Marla was the e7._hereditaryl"rtrustee from 1944 to 1985. Subsequently, Sri'.I§ameshl*.l--V'l'§aii§l--4lh respondent S/o.Akkamma Naik being [the elldestsmember of Ullippady Family was appointed as the iliereditary trustee to said temple and that respondent No.3
-.ili'.w"aslappointed as hereditary trustee to the said temple on "~«.:relinquishment of the right of trusteeship by Sri.Ramesh Naik and the said respondent No.3 was appointed after obtaining no objection from the eldest male members of the my/fl ,4-"' 3
--~: 13 :~--
family by name Sri.Jagannatha Shetty and Sri.Sanjeeva Shetty. That the compromise decree in O.S.No.31/50 does not speak about the management of the temple or mode of appointment of Hereditary Trustee and therefore,'.."'~the succession must be in accordance with the Ma«d.ras..'A1_iya"_ Santhana Law from the eldest member of the Family and not from Ullipady Housef "AAc'cord~ing respondent, the petitioner hadpno locus".s.tandil;to"questionll' the appointment of the third iespondent. £h§§}"'v§kere neither the eldest embers of the F'amily*'nor the third generation from o. Akkamma Naik. 1jqat"ar:¢':+.1ss'i3i;rig "nevcessary"notice' to the respondents and conslideringl fghelnobpiectio-nsV..the Commissioner passed the impugned order.*wVhi'chA' ipfaccordance with law.
" in 'hisaddi"tional statement of objections, he has stated that.i'espon--dent'uNo.4 the outgoing hereditary trustee had [after 'consultation with other members of the family has ::n.omliir1_ated respondent No.3 to succeed him as hereditary which was communicated to respondent No.2 which flkizsis received by him on 10.10.2008. That the nomination of the third respondent as hereditary trustee has not been set aside and therefore, the only remedy of the petitioners is to
-"'4, 3/ approach the civil court seeking necessary reliefs and not by invoking the jurisdiction of this court under ArticleVV2i2',_é".of the Constitution of India.
9. The fourth respondent in hisflistatement while making similar factual avermelnts as if respondent contended that was appointed as hereditary temples as he was the eldest member of all the branches of the V. after his death, for a period" nominated as his successor f:"iriLRamesh Naik the éiih respondent llbeilI1glplc.male member of the family became the f'iiereditaryf~t_rus'tee with effect from 15.10.1990
-"rand ._':t_f':.at;._fAVsin_ce thlev...4%h' respondent has become old and l7.want'e-d_ 'tol"reliriquish the trusteeship and since the two imrneldiatefelldest members of the family were not inclined to 'hold the trusteeship of the two temples, the trusteeship was lgiVeni*~..to lSr1.U.Taranath Alva the next immediate eldest of the family who is the third respondent in the writ lfilpvetition and though there was a decree passed in O.S.No.31/50, there is no mention about the devolution of the Hereditary Trusteeships to the branch of the family ,1'/i
--: 15 :e headed by Smt. Akkamma Nails: and as per the custom and tradition. the eldest member of the Ullipady Guttu Family has become the Hereditary Trustee irrespective of the ybiranch to which he belongs. That Sri.Ramanath Marla _ hereditary trustee despite the partition which----tooig place 16.2.1953 even though he did notlebelongj the family headed by Smt. Al{l«:.amma._l\iaik. enI"1lv'e:.c:ontizli;ued the Hereditary Trusteeship whichabelongsllt-o family as a whole and not a particu_la.r branch' ,.tl'rie family and since the 4th respondent on account o'l~d"a»ge relinquished the post of I{eredit:arly*'e;fIli1isteeshipl, tlheilvsainextras handed over to the third eldest members of the family declined said responsibility and that there is no ii'*regt1la1f_ity~in't.he said action. _ 10..,._%;According-.._to the 4"? respondent, the fact that the partition Sri. Ramanath Marla continued 'to lbe:lhe_re'd;itary trustee meant that a person who did not belong 'the family of Smt.Akkamma Naik Kavaru has n {continued as the hereditary trustees and that it was too late "the day to come up with a new plea. Even though a ~~--branch of the family was allotted some property for the purpose of 'Viniyoga' that did not imply that the right of the $7,:
W: 16 :~» whole family to the hereditary trusteeship was given up. According to the 4"' respondent, the senior~most member of the family has to function as the trustee of the templesas long as he desires and that the petitioners may _ trustees of the temples at an appropriate point'~of::tim'e:. at this point of time, the petitioners cannot"~tcl.a.im--- the'=-tsaigis .l rights by filing a petitions'u,_nderl71§lfticle Constitution of India. That thelli'l'orlderg of t1'1--ey_ll:Comrnissioner was passed on a properA..4a'ppra_isal.tl1e"facts including the representation of the petitionersvllaftier*'cons:t'de--ring all aspects and the same%_'ldoes:.'not--. suffer l'rom--l'any: defect. That the intention" was_llVtoVllmake an attempt to re- open thexpartition _Ltlo.ol;._.place in the year 1953, which is an abnseof processof That the third respondent has ._Valre._aily Eassumed 'charge as managing trustee and therefore, anyorde.r:'\zvhich----Would make him dysfunctional, could affect the managémétit of the temple. Hence, the 4th respondent sought. dismissal of the Writ petition. H V ill 1 petitioners have filed rejoinder to the statements . lobjtections. X
-: 17 2e
12. The learned single judge, after hearing both sides held that there are four hereditary trustees to the Polali Rajarajeshwari Temple. That O.S.No.31/1951 was _file'd_r'by the third respondent and his mother for partition. _ decreed and the final decree proceedings if arbitration and an award was passed...cajfidfproperty allotted to different shares. That.'thefpetitioners' respondent No.3 claim to be though they belong to different on the representation made the second respondent theftorderffappointing the third re spondentfasr 'trustee: V by
13. Beforeflthe _1¢afn_§d..r~7' single Judge, learned senior ..counfs'ie.l both side--s-----«s'ubmitted that the opinion rendered V.W,by»tl"iis_ in--.W.P.No.30998/2009 decided on 9.4.2010 was applicabledtlo the facts of the case. Learned senior Ucounsel. the petitioner submitted that having regard to if lithe decision rendered by this court in the aforesaid writ the parties had to settle their dispute before a civil " as to who has to be the hereditary trustee. Learned senior counsel appearing for the third respondent also concurred with the said submission, but stated that there /2 z i,
-~: 18 :-
cannot be a vacuum until the matter is decided by the civil court and the third respondent be continued as trustee until the civil court makes an interim arrangement to dis,poseVo_f the suit. On the basis of the aforesaid _ single judge held that the question asmto it hereditary trustee falls within theiirea-lml it which has to be decided by tl1'e.__.Civil' Ar1I1exure--G impugned in the 'quashed and observed that there shalljlfigot at the helm and therefore, directed the continue as hereditary trustee 'dill such is filed and an interim VairaI1gement:'§Vix»_aTg-Tfigdelbythe civil court as to who should take care.lof'."thVeVternp1e. Accordingly, writ petitions were allowed ., on and the impugned order dated .__of 'the ..... «second respondent--Comrr1issioner ll'ayappointingl'therthird respondent as hereditary trustee was set .aside 'jitfwas directed that the third respondent would '.Vcontinu.eVlto manage the temple until the civil court decides A 'interim arrangement as to who should continue to the temple, pending disposal of the suit. in the aforesaid terms, the writ petitions were disposed of. As against the said order, the two petitioners and the third respondent have preferred these appeals. M +: 19 1+
14. We have heard the iearned counsel Sri.K.Shashikiran Shetty for M/s. Shetty and Hegde Associates for the appellants in W.A.No.2818-- 19/2010, Sri. Jayakumar.
learned Senior Counsel for Sri.S.R.Ravipr.a.I{ash.'3.. _ respondent No.3, Sri.S1ivatsa, learned it Sri. R.Rajagopalan and Sri.K.B.3han-darvi . respondent No.4, Sri.K.Subba.rao__ for M./s'.subba1~g5:'_V_'& for respondent No.5 and 1earnedlll425iddl._Qoyernrnent Advocate Sri.K.Krishna for respondent in the "aforesaid writ appeals.
15. petitio'ners/appellants it was contended that decree was passed in a partition the matter was referred to and .__an aWa--rd..«'came to be passed and that the questionpf hereditary trusteeship has to be decided by the when the learned single judge set aside the '.V.irnpullglI1eld... order dated 16.3.2009, the third respondent 1' ll..fceased to be hereditary trustee. Therefore, the learned single could not have allowed him to continue in the said "post. That the said order is beyond the scope of the writ petition. That the third respondent had walked out from the joint family once the partition decree had become 'final and --: 20 :- therefore, no benefit could be bestowed on him in the writ petition filed by the appe1.1ants. In order to ensure that there was no vacuum in the hereditary trusteeship, the learned single judge ought to have appointed a successor from«..the appellants' branch to succeed to the office respondent had relinquished his right who"-his he appellant and not confirmed what:-'h'ad*«bee'n impugned order by directing continue in the office until the.._c'iv_i1 court made a~nWi'riterim '' arrangement. It is also,-(;onte1j1ded"'that_4%" respondent had no authority to transfer the'hered;itar§'trusteeship in favour of the third a member of Ullipady Guttu Family and respondent had no jurisdiction to co_r1firni°a.theVp arrangement made between ._vresp'ohdent .Nos.'3°and~4 which had no force of law. It is, "iereforei,:"sub:mitted on behalf of the appellants that the learned though rightly quashed the impugned order' at lL'innexure--G could not have directed that respondent he continued as a hereditary trusteeship.
-<Per contra, it is submitted on behalf of the third respondent in the Writ petition that the order impugned in the Writ petition was passed by the second respondent in accordance with law that since the 43*' respondent had relinquished his right to continue as hereditary trusteeror managing trustee of the temple on account of after consulting the next two senior male who"
refused to accept the said post, the was the next in line was appointed asAadheredpitaryltrusitee'; That the Hindu Religious anld'*._TCharityl" Act [hereinafter referred to short] spealis about the hereditary trustee under of the Act and that Annexure--§;'x'has§ -been respondent as the matterl the Act in View of Section approach the civil court in the instant' the Supreme Court had stayed the ordervofp Bench of this Court which had down thev--.Act, subsequently, the Supreme Court l7..hasllira.catedr thestay with respect to Section 25 of the Act. Section 68 about the bar of jurisdiction of a civil flcourt.'u .Ti1.atV4despite enforcement of the Act, the office of ujriereditaiy Trustee is recognised under the Act. Therefore, order of the learned single judge quashing Ar1nexure--G is " in accordance with law. That the third respondent who is the appellant in W.A.Nos.3ll3 and 3125/2010 was appointed as hereditary trustee being the eldest member of 1,?' A: 22 :-
the Ullipady Guttu Family after obtaining no objection from two other elders. The same is a customary right prevailing in the family and the second respondent~Commissioner'-only recognised the said right which should _ interfered with by the learned singlyemjudge..'"'I=l'e;:j't.hetefore,:it submitted that the order of le-arn;ed'--_sin"gIe"' at quashing Annexure--G has belddset aside jlthe appointment of the third resbondent as managing trustee as the hereditary--..tryi--1ste;e to_be'«1;pheld.
17. Learned Senior Counselthe'«.?§L'§'f1.bb__ri;-spondent has also 'thfe'~.a1'gum_ents' advanced on behalf of the thir"d.yrespon.dent..: >Lear:ne.d.Addl. Government Advocate also supported the order passed by the second respondent.
18. , ._§;HaV.i.ng heard the counsel on both sides and on careful scrutinyi material on record. the only point that arises 1fo1"V"l.of,1rV"'considzeration is as to whether the order of the learned v~..'S.irlgle Judge calls for any interference in these . ._.:appeals$" dd _A.d.~'From the material on record, it is established that in reéspect of Pollali Rajarajeshwari Temple, there are four -: 23 :- hereditary trustees and one of the trustees had always been from Ullipady Guttu Family. That in 1942, one Sri.Ramanath Marla had succeeded to the post of Hereditary Trustee of the temple and subsequently, on his death i:1.__the year 1985, the 4*" respondent Sri. Ramesh Naik hereditary trustee of the temple in question it Sri.Ramesh Naik has relinquished V-l1'i's~o.ffice as".ljnot-.& Wish to continue as hereditary the respondent became the heredita.1f4y~l.trusteei._ i!owveVer,"'there is "
a dispute as to whether the fiofficepq of l the, hereditary trusteeship has to be senior member belongirigwto l. of from Ullipady Guttu House only to the decree of partition and the award in 50. It is in that context, the had filedohjections before the second respondent who the impugned order dated 16.3.2009 Vide Ar1neXure?Elfl'j_ learned single judge, on the basis of the subniissionhvrnade by the learned Senior Counsel appearing it "..ffor'lthe petitioners as well as the learned Senior Counsel ' appearing for the third respondent held that the controversy " to be decided by the civil court quashing Ar1neXure~G. 22 _f..
kl,» --: 24 :-
20. It is however, the contention of the third respondent that the second respor1dent--Cornmissioner has the jurisdiction to go into the question of appointnf1_en't"_io.n hereditary trustee who is defined under Section 5}» _ Act and that the learned single judge ought"vn:ot haver quashed the impugned order and:=.A:directe~d"':i;he_' .A approach the civil court. At.»th_e outset' it to advert to the relevant proxrisionsi: of V' the although a Division Bench of this Actffor the purpose of answering the ii~h;e.'--Vieamed Senior Counsel, "Section -~ officevholder' means an o_ffice.--phoI.der",= ffereditary Trustee' means a ,irustee;" 'a5 Hindii religious institution or a endowment succession to whose office __deAvoives'*--according to the rule of succession laid founder or according to usage or A ._ficustontapplicable to the institution or endowment it orvlllasccording to the law of succession for the time V * s 4_ being injorce as the case may be;"
"A"Section 3 Commissioner : (1) The State Government may, by notification, appoint an officer of the cadre of the Indian Administrative Service to be the Commissioner for ljindu ....» religious institution and charitable endowments for the State of Karnataka.
{2} The Commissioner shall be a corfiorate and shall have perpetual succession and that 5' common seal and may sue and be sued. .
corporate name.
[3] The Commissioner appoi'nted_'l section {1} shall exercis'e___V such ._ powers' perform such duties are conferred by or under of this 'Act and shall, subject"'-toy..s'i1§'&:V33eni§rO'1.d or Special orders as the Statepfiopemment have powers of ' and control for the provisions of this %__VAcVt_'i'ir*iV«:_; Hindu religious charitable endowments in the State," ._and vsuperi-ntendence and control shall VVfi1cludevv'the'pow:.er to pass any order which be deemed necessary to ensure that such arelplroperly administered and their appropriated for the purpose they '' weref_ound'or exist. "
"Section 68 Bar or Jurisdiction: Save as it 'b expressly provided in this Act, no civil court shall have jurisdiction to decide or deal with any question which is by or under this Act required to be decided or dealt with by an officer or authority under the Act or in respect of which the decision or order of such ofiicer or authority is made final and conclusive."
/=
21. No doubt the hereditary office in the instantt'».cras_e is one falling within the provisions of Sec.2_( _ Act which defines the hereditary g 'a._r1d:u "
hereditary trustee. The powers-._of gfthe under Sec.3 is the powef of control for the purpose of out the «prpvjésions of the Act which inciudesdddiddthe any order which may be institutions are properly income is duly appropiiateddgdgitir litiaie. were found or exist. Sec.68 :'spe'ai{s ofjurisdiction viz--a--v1'z the civil Courth, However,» the said section has a saving it 'say-s---«'that no civil Court shall have ,.4to.:d'ecide a dispute in question which is, by or requires to be decided or dealt by an dtt"'~.~.._'_"officer or Authority under the Act, unless it is expressly On a conspectus reading of the aforesaid provisions, what emerges is that civil Court would have jurisdiction to deal with an issue connected with a matter which would not come within the scope of the :3 93 if
--: 27 :~w Act. In other words, though the office of hereditary trustee is recognised under the Act, the question as to who should succeed to such an office is a qLrest.i_on which would not come within the scope superintendence and control .for._ the puripos-c_'_jp.of'.,, V carrying out the provisions of thendiifictnyfhioij. be exercised by the Commiss*i.or1er sui;g'_eet.Vpto: general or C' special orders of the State flI'n"theV: orders passed by the Commissioner' be ensured is that institutio.nsi.; are lproperiy,Cadminifstered. On an understanding'. *f:.;the' --'.Vpres'er'1'tiii-dispute regarding the question-_of' shou:1d.v_fl5e:it1jre'successor as a hereditary trustee in the i11Stant~--,_ea~se, we are of the View that the xwouidsquarely fall within the realm of the civil Court and is not one which can bedddéedcidyedi the Commissioner, particularly having 'regard "topthe fact that in the instant case the earlier suit gidddeereed between the parties and the award made VA thereunder would have to be taken into consideration in <?
" order to determine the question.
e: 28 :-
22. In this context, it is relevant to refer to the decision rendered by a learned Single Judge of this court in the __case of M.Chitarajnandas Hegde V/s. The CommissiQnei*..for Hindu Religious Institutions and .
Endowments, Bangalore and others [20i'0{6):: '4V8),__ "
under the Madras Hindu Religiousifandhl Endowments Act, 1926, wherein-followingllthe 9f;trle Apex Court in the case of V.Sl;I'Fttnggra_y'd' V/s. Bava C.Chokkappa (AIRA i974 SC 944] it has been held...are disputed questions in re_lati;:;ri'Vto Ahereditary.trusteeship, the same is required"'té"i'befitiecidégti'bysi'-c1vti_"cottrt and that the dispute as to sticcessionn.andl'i'---trlusteeship was not within the scope of provision Act. it is also stated that there is nrjdproyision und'er--«--t}1e said Act, which would enable the W.ACon1"inissvioIier. to-decide as to the succession and hereditary trusteeshipandi' in the absence of any specific provision in frespect. succession and hereditary trusteeship, the 3' "jqulestion as to whether the Commissioner could go into the C'-'disputed question as to the hereditary trusteeship was "answered in the negative. In the aforesaid Act also Section 3(3) which is in parimateria with Section 3(3) of the Karnataka Act under consideration was expressly rei:erred to 5/ --: 29 :- and held that the Words "supervision and control" does not necessarily imply that it should be in respect of hereditaiy trustee or otherwise. It is also held that with referenceto Section 84[1)(b) of the Madras Hindu _ Charitable Endowments Act, the Apegr Court"i'ias:~held C' W the dispute as to the succession iqand-A.trusteeship"is~.,_nota it within the scope of the proViS.iOn___0f v_said inilthe absence of any specific provisioirin _respect__:of succession and hereditary truste'e.ship, the qfuevstion Whether the Commissioner could decide 'yexecf. question was answered by thellfigéipex :COl§1:I'l§.; that the Deputy Commissioi*ier.:.\:éiIasVllii}:;it co~m'petent"tov4go into the question as to whichrone oft 'claimants was the hereditary trustee andthat has "to out in a separate suit. A perusal_ of the yproxhzisionssof the Karnataka Act which is , p_underlconsideration,aiso does not give any indication that it V V witliin'llt.he_'po_wers of Commissioner to decide the question 'inf treisjteeship. In fact, the definition of hereditary trustee in 2(i5} of the Act clearly indicates that the ~ 'rule of succession is required to be laid down by the founder V"or'.ac:cording to the usage or custom applicable to the ''«.''institution or endowment or according to the law of succession for the time being.
W/"
23. In the instant case, the parties are at lis as to whether the rule of succession is applicable to the entire Ullipady Guttu or is restricted to Ullipady Guttii _ which event the effect of the judgmentmand d.ec'1'ee:passed_in if o.s.No.31/1950 has to be taken into co_nsié:ieratio'n'.- "m}ihis,_i' stage, it would not be appropriate to itndicate as"d'tofwrhet:i1er the admitted partition between the decree passed in the aforesaid si.ii"t«.enirisa§.ge's"theaspect with regard to the law of succession and ~trusteVeship.V 'Several decisions cited in the a'fo1f'epsaid :juclginents_V iirereiii' also taken into consideration sinif,the«::ai"oresai'd of who held that the vexed question of .and.d.'liaxi}¢..in relation to the custom and hereditary trusteesrwhichdvare required to be decided is purvieW»--a--nd scope and the jurisdiction of the W.Co:nii1issi.onervi.under the Madras Act. The same analogy applies' to 'thfeV..a1'IV(ainataka Act also and the parties are frequired torhave their rights regarding hereditary trusteeship 'band 'lsucce'ssion to the said office to be adjudicated in a civil '- « «d-court.
24. Therefore, the contention of the 3"' respondent has to be rejected in View of the interpretation we have given to 9% ..--/"""
--: 31 :-
Sections 3 and 68 of the Act and on the facts of the present case. Moreover, the learned senior counsel appearing for the third respondent before the learned single judge conceded to the fact that the controversy regarding the appointmenthllof a hereditary trustee in the instant case had to be the civil court. Under the circumstances, we pare"-of Vi3W~« _& that the learned single judge was in -'dire.Vc'ting"the°. parties to the civil court for adjudicatiorilof the gldispute who has to succeed to the 4"' respondent' as"AthVe hereditary trustee.
25. Insofar thef:'§conten'tionl uof"the petitioners/ appellants with regard' to t11elct:'5i~1ti"nua'1'3.ce. of the third respondent as the managing trustee Vof.thAe_ten'iple until an interim arrangement ._is the (iiyilv-.Cc\urt being not in accordance with law the material on record, it is apparent that the 45th respo'nd'ent on account of his age "82 years" as per '.the caL.1sle.--..title in the Writ petition did not wish to continue if hereditary trustee and therefore, relinquished from the ' office. Since the learned single judge set aside the order dated 16.3.2009 passed by the second respondent- Commissioner vide Annexure--G, the question as to who would fill the Vacuum and hold the post as hereditary 35 M: 32 :w trustee was considered by the learned single judge and in View of the fact that the parties were directed to approach the civil court, if so advised, the third respondevnti'-yvas permitted to continue to manage the temple _ court decides as an interim arrangement as;'Lo'v-\vh.o'ls.houldg_ continue to manage the temple, pend_ing-.dispo*sal.of-thefsuitgg it Since the petitioners themse1.v'es___.haveA._contendeci; controversy as to who should belvlvappointedl hereditary trustee had to be decidedlfiby c.o_:irt~whichlucontention was also concurred with and in that View of the rnattert.'jp:jg.!?'innei*<u1?eit}: (iuashed by the learned single judge to approach the civil court till.' such is filed and an interim arrangementkis civil court and the learned ..sing1'e'i'¢~ ju_dge_ directe--d--«A'that the third respondent shall 7,corI.tinue"._i;o niariage the temple. The said direction in our View is in accjordance with and consistent with the direction '.of the learned single judge directing the parties to approach it lciyfil court to get the controversy resolved and thereby Annexure--G. Therefore, the grievance of the it appellants with regard to the third respondent continuing as a managing trustee is Without any substance as the said direction is only in the nature of a temporary arrangement Q} .<.?%w until the matter is decided as an interim arrangement by the civil court, pending disposal of the suit. Unéderlthe circumstances, the order passed by the iearned _ does not call for any interference in these appea}:s..b "HenAce,_' the Writ appeals fail and are accordingly,ddvisinihssdedrd AA to bear their own costs.
se~ JUDGE-
dh:g_yh%JUDGE SJ!