Madras High Court
Ramasamy Gounder vs The Commissioner on 21 July, 2017
Author: N.Seshasayee
Bench: N.Seshasayee
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.07.2017
CORAM : THE HONOURABLE Mr.JUSTICE N.SESHASAYEE
CMA.No.2798 of 2007
and MP.No.1 of 2007
1.Ramasamy Gounder
2.Kalianna Gounder
3.Subbarayan
4.Nallakumaran .. Appellants
Vs.
1.The Commissioner
Hindu Religious & Charitable Endowment
(Administration) Department,
Nungambakkam, Chennai - 600 04.
2.The President
The Tamil Nadu Temples Administration Board,
Fort St.George, Chennai.
3.The Secretary
Commercial Taxes and Charitable Endowment
Fort St.George, Chennai.
4.The President
District Committee of Temple Administration Board,
Hindu Religious and Charitable Endowment,
Venkata Rao Road, Salem-1.
5.M.Periyasamy
6.Arumuga Nadar
7.Kandasamy
8.Thangavelu
9.Kandasamy
10.Jayakumar
11.Arunachalam
12.Karunanidhi
13.Ponnuvel
14.Thirupathi
15.Periyasamy Nadar
16.A.K.Muthu
17.Chinnasamy
18.Govindaraj
19.Palanivelu
20.K.P.Narayanan
21.Ramasamy Nadar .. Respondents
Prayer : Civil Miscellaneous Appeal preferred under Order 43 Rule 1(4) of CPC, praying to set aside the order of setting aside and remand passed on 29.09.2006 in A.S.No.61 of 2004 on the file of the Principal District Judge, Namkkal, against the order dated 14.7.2003 in O.S.No.503 of 1994 on the file of District Munsif Court, Tiruchengode.
For Appellants : Mr.K.Anbarasan
For Respondents : Mr.M.Venugopal
Additional Govt. Pleader for R1 7 R3
Mr.Sudhakar [for RR5 to 10, 12 & 20]
JUDGMENT
This Civil Miscellaneous Appeal is preferred against the order of remand dated 29.09.2006 passed in A.S.No.61 of 2004 on the file of the Principal District Court, Namakkal. The brief facts that are relevant for the purpose are :
The plaintiffs are Koorai Kula Kongu Vellalars represented by her seven trustees. The plaintiffs filed the suit in O.S.No.503 of 1994 on the file of the District Munsif Court, Tiruchengode against the defendants. They claim that the community is a religious denominational Hindu Community and that it owns three temples viz., (i) Arumlighu Pon Maliamman Temple, (ii) Kariyaperumal Temple and (iii) Arulmighu Jambukeswarar Temple. The temples are administered by the Community through its trustees. These temples are more than 100 years old and are denominational temples belonging exclusively to the plaintiffs. The defendants 5 to 21 are private individuals, and they did not have any right in the matter of administering or managing the aforesaid temples. While so, sometime in the month of December 1992, the defendants attempted to appoint trustees for the temples, following which, plaintiffs issued notice dated 04.1.1993. This notice was duly acknowledged. However, without responding to the notice, first defendant viz., The Commissioner, Hindu Religious and Charitable Endowment (Administration) through its Inspector, HR&CE, issued a notice dated 14.11.1994 to submit the accounts pertaining to the three temples stated above. Hence, the plaintiffs have come forward before this Court seeking a declaration that the temples are denominational temples belonging exclusively to the plaintiff Koorai Kula Kongu Vellalar Community. The said suit was essentially contested by the first defendant, the Commissioner, HR&CE Department. All the private defendants remained ex parte.
2. In its written statement, the first defendant primarily contended that the suit temples are not the denominational temples belonging exclusively to the community of the plaintiffs, but it is a public temple belonging to all the community of the surrounding villages. Further the plaintiffs have proved through their claim as per Section 64(1) of the Hindu Religious and Charitable Endowments Act, and they have not exercised the remedies under the Act. The suit is also barred by Section 120 of the Hindu Religious Charitable and Endowment Act. While so, the Department has appointed the first plaintiff as non-hereditary trustee and also a Fit Person for the aforesaid temple as per its proceedings dated 10.10.1994.
4. The trial Court has framed appropriate issues and has held that the three temples referred to in the plaint are denominational temples belonging to the community of the plaintiff, and accordingly decreed the suit. Against the decree passed by the trial Court, the respondents herein preferred an appeal in A.S.No.61 of 2004 on the file of the Principal District Judge, Namakkal, which aside the decree and judgment of the trial Court and remanded the matter back to trial Court. This was challenged by the appellants/plaintiffs 1to 6 in this appeal.
5. The learned counsel appearing for the appellants/plaintiffs submitted that the private defendants/private respondents 5 to 20 too have filed a separate appeal in A.S.No.23 of 2004 on the file of the District Munsif Court (FTC), Namakkal, but the same was dismissed for default and was not restored to file at any time subsequently. As regards the matter at hand, the appellate court in its judgment remanding the case has noted that some of the private defendants had died, and the cause of action against them has abated. It also noticed that the seventh plaintiff had died even during the pendency of the suit before the trial Court, that inspite of repeated opportunities granted to the plaintiffs to take such steps for impleading the successor of the seventh respondent, the same was not done. Therefore, it remanded the matter only for impleading such person who represented his interest in the suit.
6. The learned counsel appearing for the appellants submitted that the seventh plaintiff was only a trustee of the temple. No part of the cause of action will devolve directly on his legal representatives/heirs as he was only holding an office. Further, what is involved in the litigation is community of interest, that of the interest of all the members of the Koorai Kula Kongu Vellalar Community, and other plaintiffs are adequately there on record to protect the interest of the community. Therefore, it is in effort in futility to seek a substitution for the trustees, for it is for the community to choose the successor for the seventh plaintiff.
7. The learned counsel appearing for the R5 to R10, R20 & R21 sought time to get instructions from his client. There is no representation for others.
8. This appeal is of the year 2007 and for a conclusion that this Court is going to arrive and to be dealt with in subsequent paragraph, this Court has declined the request of the learned counsel for the respondents.
9. This Court, finds merit in the submissions of the learned counsel for the appellants. Plaintiffs 2 to 7 claim themselves to be the trustees of Koorai Kula Kongu Vellalar Community, and death of anyone of the trustees will not involve devolution of cause of action of one who died on his heirs. In essence, there is no need to implead anybody as legal representatives of the deceased seventh plaintiff. If at all, there is only a need to elect, select or nominate a trustee by the Community concerned to fill the vacancy arising out of the death of the seventh plaintiff. This is essentially the responsibility of the community, but not that of an individual. Even otherwise, there are other trustees available to protect the interest of the plaintiff community. The plaint, however does not disclose how election or selection of trustees take place within the community.
10. Be that as it may, when the matter came up before this Court on 18.01.2017, this Court wanted to know the status of the case before the trial Court and a report from the trial Court dated 31.01.2007, has since been received and it states that the suit is still pending. It appears that there is some structural change in the office of the defendants 1 to 3 and they too have been accordingly made. In the foregoing circumstances, this Court decided to allow the Civil Miscellaneous Appeal and remit the matter back to the First Appellate Court. If the plaintiff's community has elected/selected /nominated anyone to fill up the vacancy that has arisen due to the demise of the seventh plaintiff, and if the same has not been done thus far, it may proceed to hear the appeal on merits. If, however someone is already impleaded before the trial Court, his continuance on the record is directed to remain.
11. In the result, the Civil Miscellaneous Appeal is allowed and the judgment dated 29.09.2006 in A.S.No.61 of 2004 on the file of the Principal District Judge, Namkkal, against the order dated 14.7.2003 in O.S.No.503 of 1994 on the file of District Munsif Court, Tiruchengode, is set aside and the first appellant court is directed to dispose of the appeal on merit within a period of three months from the date of receipt of a copy of this order. Parties are directed to appear before the First Appellate Court on 07.08.2017. No costs. Consequently, connected miscellaneous petition is closed.
21.07.2017 ds Note : Issue order copy on 26.07.2017 Index : Yes/No Internet : Yes/No To:
1. The District Munsif, Thiruchengode.
2.The Principal District Judge, Namakkal.
N.SESHASAYEE,J ds C.M.A.No.2798 of 2007 21.07.2017