Madras High Court
A.Pandiammal vs P.Sivaji Poosari on 5 July, 2012
Author: B.Rajendran
Bench: R. Banumathi, B. Rajendran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/07/2012 CORAM THE HONOURABLE MRS. JUSTICE R. BANUMATHI and THE HONOURABLE MR. JUSTICE B. RAJENDRAN Writ Appeal (MD) No.251 of 2012 and M.P.(MD) No. 1 of 2012 A.Pandiammal .. Appellant / 3rd Respondent Versus 1.P.Sivaji Poosari Managing Trustee of Arulmigu Pandimuneeswarar Temple, Melamadai, Madurai, Residing at Kurunji Nagar, Near Arulmigu Pandimuneeswarar Temple, Melamadai, Madurai. ... 1st Respondent/ Writ Petitioner 2.The Commissioner, Hindu Religious and Charitable Endowment, Chennai - 34. 3.The Joint Commissioner, Hindu Religious and Charitable Endowment, Madurai. .. Respondents/ Respondents 1 and 2 in W.P. Appeal is filed under Clause 15 of the Letters Patent Act against the order dated 10.02.2012 made in W.P.(MD) No.4365 of 2009 on the file of this Court. !For Appellant ... Mr.W.C.Thiruvengadam ^For Respondent 1 ... Mr.V.Sitharanjandas For Respondents 2&3 ... Mr.A.K.Baskara Pandian Additional Government Pleader :JUDGMENT
B.RAJENDRAN, J.
The third respondent in the Writ Petition is the appellant herein. The writ petition has been filed by the first respondent herein to call for the records relating to the proceedings of the second respondent in the appeal dated 03.04.2009 reversing the order of the 3rd respondent herein, directing the appellant herein to approach the Civil Court made in R.C.8881/2007/B1/dated 20.6.2008 and quash the same. On the same day, the writ petitioner also filed another Writ Petition in W.P.(MD)No.4364 of 2009 for issuance of a writ of Certiorari to call for the records relating to the order of the second respondent herein dated 3.4.2009 confirming that part of the order of the third respondent herein permitting the appellant herein to file an application under Section 64(1) of the H.R.&C.E. Act (in short 'the Act') made in R.C.8881/2007/B1/20.6.2008 and quash the same. Both the writ petitions were allowed by the learned Single Judge. Aggrieved against that order the third respondent in the Writ Petition has come forward with this appeal.
2. The learned Counsel for the appellant attacks the grant of order. According to the appellant, the writ petition has filed the writ petition stating that by virtue of an old order passed by the Hindu Religious and Charitable Endowments Board in O.A.No.459/1933 dated 05.09.1935, the subject matter of "Arulmighu Pandi Muneeswarar Temple", situated at Melamadai in Melur Taluk, Madurai District has been described as an "excepted one" which means "a temple administered by Hereditary Trustees" According to the writ petitioner/the first respondent herein, the petitioner-P.Sivaji Poosari was one of the five Hereditary Trustees and one of the ten Hereditary Poosaris of the temple mentioned above. The founder of the temple Pandi Kodangi was succeeded by his son Periyasamy and after his death, his son Periyasamy administered the temple. He had two sons (i)Pandian@Bootha Poosari and (ii)Periyanan@Mahamuni Poosari and a daughter(iii) Nallathangal. Pandian Poosari@Bootha Poosari and Periyanan@Mahamuni Poosari were minors at the time of death of Periyasamy and therefore, his wife Valliammal was taking care of the temple for both minor sons and only when they have become majors, they were appointed as Trustees. After some time, a scheme was also framed on 20.6.1973 in O.S.No.383/1973 on the file of District Munsif Cout, Madurai between the heirs of Pandian@Bootha Poosari, viz., P.Veeramalai, Sangan Poosari, Ponnan Poosari, Kodangi Poosari and
(b)Periyanan@Mahamuni for performing pooja and sharing the hundial collection. Pending the suit, Ponnan Poosari died on 12.6.1971 and his legal heirs, viz., Mariammal-widow, Minor Pandiammal (daughter)(appellant herein), minor Sivaji, minor Periyasamy and minor Thangaraj were brought on record. The mother Mariammal was allowed to take part in the administration of the temple as a guardian for the minor heirs of the deceased Ponnan Poosari. In the said proceedings the minor Pandiammal was brought on record as one of the parties as she is the legal heir of Ponnan Poosari. According to the writ petitioner/the first respondent herein, the management of the temple could be done only by the male heirs and not by the female heirs. Therefore, the writ appellant/third respondent was not made as party as she being a lady. The writ petitioner/the first respondent was appointed as the Hereditary Trustee on 09.12.1983 in the place of Ponnan Poosari with the consent of male heirs and also with the consent of mother Mariammal as she was the guardian of the minor legal heirs. Subsequently, on 13.8.1999 the first respondent was declared as the Managing Trustee.
3. According to the Writ Petitioner/first respondent herein, he was appointed as a Hereditary Trustee on 09.12.1983 only with the consent of the legal heirs including the mother Mariammal and subsequently he was declared as Managing Trustee on 13.8.1999, the appellant who is elder to the writ petitioner filed an application before the 3rd respondent-Joint Commissioner, H.R.&C.E., Admn. Department, under Section 54(1) of the Act to recognise her as Hereditary Trustee due to the death of Ponnan Poosari. That application has been rejected as not maintainable on the ground that she did not object to the writ petitioner being appointed as the Hereditary Trustee in the year 1983 even though she was elder. Similarly she did not object when the writ petitioner was subsequently declared as Managing Trustee on 13.8.1999 and the present application is filed 25 years after the original appointment as well as declaration as Managing Trustee. Lastly, the application under Section 54(1) will arise only 'when a permanent vacancy occurs in the office of the hereditary trustee of a religious institution, the next in the line of succession shall be entitled to succeed to the office.' As there is no permanent vacancy, the question of next line of succession will not arise. It was also rejected on the ground that the third respondent/appellant herein did not challenge the original order making the writ petitioner as Hereditary Trustee even as early as on 09.12.1983. As against the order of rejection by the Joint Commissioner, the appellant herein preferred appeal before the Commissioner. Though the Commissioner also agreed insofar as to the delay and laches, ultimately agreed that there is no legal bar for succession of the appellant to office and her claim should have been accepted by the Joint Commissioner. The order of the Joint Commissioner, in its entirety, is unsustainable. The impugned order therefore be and is hereby set aside. The appeal petition be and is hereby allowed. Aggrieved against the same, the first respondent has preferred a writ petition challenging this order and also that portion of the order of the third respondent Joint Commissioner which permitted the appellant to approach the Civil Court. The writ appellant filed this appeal challenging the said order. But the writ petitioner challenged the right given by the third respondent to approach Civil Court forgetting for a moment, the appellant has approached the department much after laches and acquiescence. The writ petitioner also contended that the claim raised by the appellant/third respondent in the writ petition was concluded by the dismissal of the earlier suit in O.S.No.126/1990 which was filed for permanent injunction restraining the writ petitioner from interfering with right of participation. In fact, in that suit I.A.No.112/1990 was filed for interim injunction pending disposal of the suit, which was also dismissed on the ground that female heirs are not entitled to participate in the affairs of the impugned temple. Against which the appellant filed C.M.A.No.30/1990 which was also dismissed and the suit after the change in pecuniary jurisdiction, was also transferred to the District Munsif Court, Melur, and the same was renumbered as O.S.No.120/2000 and ultimately the same was also dismissed for non-prosecution. Therefore, the question as to whether a female heir has got right of participation in the affairs of the "excepted temple" has been concluded between the parties and lastly it was held that the third respondent who has not questioned the appointment for more than 25 years and having not challenged the very original appointment of trustee the whole issue is hit by Article 107 of the Limitation Act is only a period of 12 years to take possession of hereditary office.
4. Per contra, the learned Counsel for the appellant mainly would contend that after the death of Ponnan Poosari, the wife of Ponnan Poosari-Mariammal was allowed to do the duty of Hereditary trusteeship in the temple and all the legal heirs of Ponnan Poosari jointly succeeded the office of Hereditary trusteeship and Poosariship in his branch as per Hindu law and there is no prohibition for the females to get hereditary trusteeship and Poosariship. He would further contend that the petitioner-Sivaji Poosari was appointed as Hereditary Trustee representing the entire family because when more than one Hereditary Trustee was available, the next in the line of succession cannot be considered hence the writ petitioner cannot say that he was alone appointed as Hereditary Trustee. He would also contend that the claim of the writ petitioner that he has succeeded to the office of the vacancy caused by the death of his father in the year 1983 with the consent of other legal heirs is to be rejected. Aggrieved against the order of the learned Single Judge, the appellant has come forward with this appeal.
5. Heard Mr.W.C.Thiruvengadam, learned Counsel appearing for the appellant, Mr.V.Chitharanjandas, learned Counsel appearing for the first respondent and Mr.A.K.Baskara Pandian, learned Additional Government Pleader appearing for the respondents 2 and 3. By consent of all the parties, the main writ appeal itself is taken up for final disposal.
6. The appellant herein claims the office of hereditary trusteeship in the Arulmighu Pandi Muneeswarar Temple on the ground that she being elder daughter in the family of Ponnan Poosari, she is admittedly standing first in the line of succession. Therefore, under Section 29-A(iv) of the Hindu Succession Act and Sub-clause (iv) of the Tamil Nadu Amendment to the Hindu Succession Act which came into force on the 25th day of March 1989, she has got equal rights in coparcenary property. Therefore, the right to manage the temple affairs also should be given to her. The learned Counsel would also contend that the date of commencement of the Act is 1989 and the fact that the daughter is married is not a bar. But unfortunately, as rightly held by the learned Single Judge the appellant was married even way back in the year 1975 and left the parental house. She is for the first time filed this application under Section 54(1) of the H.R.&.C.E.Act only on 26.09.2007. The learned Single Judge has also relied upon a judgment reported in PARAMESWARI @ GNANASAKTHI V. RAJA RATINAM (2010 (5) CTC 51) and held that as the amendment was not given effect the question was answered in favour of the writ petitioner as against the appellant.
7. It is made clear that Ponnan Poosari died on 12.6.1971 and his wife Mariammal was allowed to take part in the administration as the guardian of the minor legal heirs whereas the appellant was married even in the year 1975 and on attaining majority, the writ petitioner-Sivaji Poosari was appointed as hereditary trustee with the consent and concurrence of all the legal heirs including the mother as guardian and at that point of time appellant was elder to the petitioner Sivaji Poosari she did not object to the appointment of the writ petitioner as the hereditary trustee way back in the year 1983. This is a vital point which has been rightly taken note of by the learned Single Judge. The fact that the appellant was elder to the writ petitioner by keeping quiet in respect of the appointment she has acquiesced in the appointment of hereditary trustee for the writ petitioner. In this connection it is pertinent to point out here that the writ appellant did not object even in the year 1983 the writ petitioner was appointed as hereditary trustee and subsequently after more than 16 years on 13.08.1999 when he was also declared as Managing Trustee also the appellant did not object the same. Further, the application under Section 54(1) of the Act filed by the appellant before the Commissioner after a quite number of years is basically is not correct. It is useful to extract Section 54(1) of the Act which reads as under:
"54. Filling up of vacancies in the offices of hereditary trustee.-(1) When a permanent vacancy occurs in the office of the hereditary trustee of a religious institution, the next in the line of succession shall be entitled to succeed to the office.
8. A reading of the above Section itself would state that when there is a permanent vacancy occurs only in the office of the hereditary trustee of a religious institution, the next in the line of succession shall be entitled to succeed to the office. Here admittedly the vacancy arose last even as early as on 12.06.1971 when Ponnan Poosari died the next line started at that point of time. At that point of time, all other children were minors whereas the appellant was a major and she was not appointed but the mother was appointed as the guardian for the minors under the custom that only male members are permitted to take care. Even though the mother was lady she was appointed as guardian she was taking care of the temple. But, unfortunately, the appellant who has got every right under Section 54(1) of the Act at that time did not raise this point whereas she kept quiet. Further more, for the possession of office of the hereditary trustee the period of limitation is only 12 years. Article 107 of the Limitation Act is extracted hereunder:
107. For possession of a Twelve years hereditary office. when the Explanation.-A defendant takes hereditary office is possession of possessed when the the office properties thereof are adversely to usually received, or the plaintiff.
(if there are no properties) when the duties thereof are usually performed.
9. The above Article 107 also clearly contemplates that for possession of Hereditary office, the period of limitation is only 12 years. If this Article is taken into consideration the hereditary office when it is assumed by the writ petitioner when he was appointed as trustee way back in the year 1983 and subsequently declared as Managing Trustee on 13.08.1999 definitely the appellant ought to have questioned the same. When the writ petitioner took possession of the office of the hereditary trustee in the year 1983 itself and till 2007 she has not raised any objection. Hence, the learned Single Judge rightly held that when there is a permanent vacancy the appellant did not raise any objection and now there is no permanent vacancy at all to claim under Section 54(1) of the Act especially after the appointment of the writ petitioner as Managing Trustee. At this juncture, it is also pertinent to point out here that the appellant has not challenged that order of succession way back in the year 1983. But as rightly pointed out by the writ petitioner, the Commissioner having held that the third respondent/appellant has not challenged the appointment and allowed him to continue as a trustee, the Commissioner in his order stating that the third respondent/appellant is automatically entitled to succeed as the next in line was not correct which is rightly set aside by the learned Single Judge.
10. The next argument put forth by the learned counsel appearing for the appellant that Section 109 of the Act was a bar. This Section 109 will come to the rescue in regard to safeguard the interest of the temple from taking possession of property without recourse to Article 107 of the Limitation Act. In this connection, it is useful to extract Section 109 of the Act which reads as under:
"109. Central Act 36 of 1963 not to apply for recovery of properties of religious institution.-Nothing contained in the Limitation Act, 1963 (Central Act 36 of 1963 shall apply to any suit for possession of immovable property belonging to any religious institution or for possession of any interest in such property."
11. It is very clear that Section 109 of the Act relates to the suit which the temple files as against any third party for recovery of possession who is in unauthorised occupation the plea of limitation cannot be raised by such person who is in unauthorised occupation. Therefore, Article 107 of the Limitation Act will not apply to any person who is in unauthorised occupation. When the suit is filed for recovery by the temple. Can that be said would apply to the present position? No. Here is the case where the hereditary trustee was appointed or selected in the year 1983 who was then conferred with the Managing Trustee the appellant keeps quiet as against this for about more than 25 years but challenged the argument regarding limitation relying upon Section 109 of the Act which is not correct. Section 109 of the Act will not apply to the facts of this case it will only apply as regards possession being taken by the temple as against a person who was in unauthorised occupation.
12. Of course, a feeble attempt was made that the appellant cannot be thrown out for being a lady. That is not the case here. Even if she is a lady she might be allowed to continue if she has taken over at the earliest point of time. She having left her right and she acquiesced the same for a long period of 25 years it is not open for her at this point of time to question the continuance especially when she has not challenged the original order of appointment made way back in the year 1983. In fact, when we read the order dated 10.11.1983 passed by the HR&CE Department, it would clearly denote that Mariammal and the children were examined by the Commissioner and the first respondent was agreed to be selected as hereditary trustee and in the vacancy arose due to the death of Ponnan Poosari, the eldest male son first respondent has been appointed. Subsequently, on 09.12.1983 this order has been confirmed by the Commissioner and orders have been passed. Similarly, when we see the order of the Commissioner, HR&CE Department, in R.P.No. 35 of 2008 dated 3rd April 2009, the Commissioner has categorically held only when there is a rival claim in respect of right of succession to the office the matters needs to be referred to authorities concerned for seeking relief in Civil Court verdict as stated by the Joint Commissioner. He has failed to take into consideration that the appointment has been made long back in the year 1983 and the appellant has not questioned the same. Therefore, rightly the learned Single Judge has allowed the writ petitions.
13. It is also pertinent to point out here that the appellant did not choose to file any appeal as against the order passed in W.P.(MD)No.4364 of 2009 and allowed it to become final. In respect of common order, the appellant has chosen to challenge only one portion of the order. Therefore also ,the writ appeal at this stage is not correct. In this connection, the learned Counsel appearing for the appellant would rely upon a judgment reported in 1955 Supreme Court Report, 186, Raj Kali Kuer v. Ram Rattan Pandey, for the proposition that hereditary office of the poojari and panda even a female would be allowed to be succeed. That is not disputed much. But the fact remains that though there is a custom in their family she has not chosen to challenge the order appointing the writ petitioner as hereditary trustee in the year 1983. He would also rely upon a judgment reported in 1990 1 LW 144, Prem Anand v. The Commissioner, H.R.&C.E., etc. for the proposition that Section 54 will apply when permanent vacancy occurs automatically the next in line of succession has to succeed. There is no doubt about this proposition. But, unfortunately, the right of succession had granted in the year 1983 when the appellant did not raise any objection or claim any right thereof.
14. The learned Counsel appearing for the first respondent also would rely upon a judgement in 2007 (2) TLNJ 649 (Civil), Smt. Ass Kaur (Deceased by L.Rs. v. Kartar Singh (Dead) by L.Rs. and others, for the proposition that "custom is one of the three sources of Hindu Law and custom may override a statue subject, of course, to a clear proof of usage. This he would mainly rely upon the decision that the women folk never allowed to have hereditary trusteeship and it is the custom in their family and therefore once custom is proved then it has to be accepted. But, unfortunately, that is not the case here nor there is any independent evidence proving the custom. But sitting under Article 226 of the Constitution of India, we cannot decide on the custom without evidence. The fact remains is that the appellant has not questioned the authority of the writ petitioner/the first respondent herein to continue to hold the office of hereditary trustee. That right itself is enough in this particular case. Therefore, we do not find any reason to interfere with the order under challenge.
In the result, the Writ Appeal is dismissed. The appellant is estopped from questioning the appointment as it is barred by limitation and as it is not the permanent vacancy under Section 54(1) of the Act. Consequently, connected miscellaneous petition is closed. No costs.
srm To
1.The Commissioner, Hindu Religious and Charitable Endowment, Chennai - 34.
2.The Joint Commissioner, Hindu Religious and Charitable Endowment, Madurai.