Madras High Court
M.K.Balasubramaniam Pillay vs The Commissioner on 8 July, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.No.19431 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 22.06.2022
PRONOUNCED ON : 08.07.2022
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.No.19431 of 2020
and WMP.No.24017 of 2020
M.K.Balasubramaniam Pillay ... Petitioner
vs.
1.The Commissioner,
H.R.C.E. Department,
Chennai 34.
2.The Joint Commissioner,
H.R. & C.E.Department,
Salem.
3.The Inspector,
H.R. & C.E.Department,
Salem.
4.The Executive Officer,
A/m.Sakthi Mariamman Thirukoil,
Magudanchavadi, Sankagiri Taluk,
Salem District.
5.Malleegeswari
6. M.Nithyaraj
7. Gokulraj ... Respondents
1/20
https://www.mhc.tn.gov.in/judis
W.P.No.19431 of 2020
Prayer: This Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorari calling for the records of the case relating
to the Impugned Order dated 29.08.2020 ( received on 28.10.2020) passed by
the first respondent in R.P.No.37 of 2019 and to quash the same.
For Petitioner : Mr. T.Ramesh
For R1 to R3 : Mrs.Geetha Thamaraiselvan
Spl.Govt.Pleader.
For R5 to R7 : Mr.B.Vijayakumar
ORDER
The petitioner has challenged the impugned order passed by the 1st respondent/Commissioner under Section 21 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
2. By the impugned order, the first respondent has rejected the revision application filed by the petitioner against the order dated 07.06.2016 passed by the second respondent, Joint Commissioner. By the aforesaid order dated 07.06.2016, the second respondent has recognized the fifth respondent as the 2/20 https://www.mhc.tn.gov.in/judis W.P.No.19431 of 2020 Hereditary Trustee of the subject temple namely Arulmigu Sakthi Mariamman Temple, Magundanchavadi, Sankagiri Taluk, Salem District.
3. The specific case of the petitioner is that the petitioner's forefathers and others were also Hereditary Trustees of the aforesaid temple founded by Late. Thiru.Viswanatham Pillay and that after the death of the founder, the management of the temple was vested with Thiru.Jegannatham Pillay, who entrusted the management of the temple to Thiru.N.Periyasamy Pillay, A.Periyasami Pillay, Thiru.N.Arumugham Pillay etc. as successors Dharmakarthas.
4. It is the specific case of the petitioner that after Thiru.Jegannatham Pillay took charge over the management, latter desired to handover the management to his eldest son, Dr.(Captain) A.J.Arunagiri as the sole Dharmakartha. In these circumstances, a consent order came to be passed by the then Deputy Commissioner in O.A.No.40/1991 in his proceedings dated 18.05.1992 recognizing Dr.(Captain) A.J.Arunagiri as the sole Hereditary Trustee/ Dharmakartha.
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5. It is submitted that since Dr.(Captain) A.J.Arunagiri became old and infirm and therefore desired to appoint Thiru.Sivaramakrishnan as the Hereditary Trustee. Thus, an order came to be passed on 07.02.2002 by the then Joint Commissioner, H.R & C.E, recognizing Thiru.Sivaramakrishnan as the sole Hereditary Trustee/Dharmakarta.
6. It is submitted that this was also non-contested and a consensus order passed as there was no objection from other Dharmakartas. It is submitted that Thiru.Sivaramakrishnan died on 12.12.2006. Thereafter, his son Thiru.Manickavasagam was recognized as the sole Hereditary Trustee/Dharmakarta by the then Joint Commissioner on 21.09.2007.
7. It is submitted that Thiru.Manickavasagam, the husband of the fifth respondent and the father of the respondents 6 & 7 died on 10.07.2015. It is submitted that appointment of the fifth respondent as the sole Hereditary Trustee/Dharmakarta by the Joint Commissioner based on the report of the Inspector of H.R & C.E was not proper and is therefore, liable to be set aside as it was contrary to the customs and behind the back of the petitioner. 4/20 https://www.mhc.tn.gov.in/judis W.P.No.19431 of 2020
8. It is submitted that the petitioner filed a revision under Section 21 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 before the Commissioner against the order of the Joint Commissioner has now culminated in the impugned order of the first respondent. It is submitted that there is a custom among the members of the family of the Dharmakarta for selection of the next Dharmakarta. It is submitted that the appointment of the fifth respondent was behind the back of the other Dharmakarta and petitioner and is therefore liable to be quashed.
9. It is submitted that the expression "next in the line of succession", in Section 54(1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 does not mean the legal heirs of the deceased Trustee alone. It would not mean only from the family of the deceased Trustee alone can succeed as “next in the line of succession”. It is therefore submitted that the impugned order dated 29.08.2020 passed by the first respondent upholding the order of the second respondent, Joint Commissioner dated 07.06.2016 is thus liable to be quashed.
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10. The learned counsel for the petitioner submits that the second respondent, Joint Commissioner has passed order dated 07.06.2016 only on the basis of the report filed by the third respondent and without conducting any enquiry with regard to the prevailing customs and entitlement and eligibility of the others to be appointed as hereditary trustees of the temple. He further submits that the hereditary trustees cannot be appointed from only one family alone when in earlier years, the hereditary trustees were appointed from the male descendants of the founder.
11. The learned counsel for the petitioner further submits that the bulletin published by the Tamil Nadu H.R & C.E Department confirms presence of other Hereditary Trustees/Dharmakarta. From the above said bulletin, it is evident that a male descendants of one of the family members was appointed as a hereditary trustees/Dharmakarta on a rotation basis and therefore the fourth to sixth respondents cannot claim the exclusive right over the hereditary trusteeship to the exclusion of other who are equally entitled to succeed.
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12. In the counter filed for the first to fourth respondents, it is stated that the appointment of a female member to the Hereditary Trusteeship can be considered normal in the circumstances since devolution of Hereditary Trusteeship by custom and usage has been not established. Further, Dr.A.J.Arunagiri was recognised as a Hereditary Trustees vide order dated 18.05.1992 of the then Deputy Commissioner in O.A.No.40/1991. The appointment of Hereditary Trustees by rotation of one family has been considered with reasons in the impugned order passed in R.P.No.37 of 2019 by the Commissioner on 29.08.2020.
13. The learned Special Government Pleader for the first to third respondents further submits that Section 47(1)(c) of the H.R.& C.E. Act is only shown to establish the present position in the constitution of the Trust Boards and that in the absence of custom and usage there is no bar for appointment of Women as a Hereditary Trustee. It is further submitted that the Bulletin brought out the history of the family for appointment of the hereditary trustees. It is further submitted that in O.A.No.40/1991 vide order dated 18.05.1992 Dr.(Capain) A.J.Arunagiri was recognised as the sole 7/20 https://www.mhc.tn.gov.in/judis W.P.No.19431 of 2020 Hereditary Trustee. The devolution of hereditary rights, based on the prevailing custom in the temple in consultation with other male legal heirs of the former Trustees/Founder etc., has not been satisfactorily proved by the petitioner.
14. It is further stated that the Commissioner, H.R. & C.E. Department in the impugned order has rightly observed that the petitioner has not proved with regard to the prevailing custom and usage in temple about succession of Hereditary Trusteeship regarding consultation with other male Members.
15. It is further submitted that once there was severance of rights recognized as Hereditary Trustee in terms of order passed by then Deputy Commissioner in O.A.No.40/1991 dated 18.05.1992 wherein Dr.Arunagiri was recognized as the Hereditary Trustee, the petitioner cannot claim any right to Hereditary Trusteeship.
16. It is submitted that the petitioner has not challenged the appointment of Late.Dr.(Captain) A.J.Arunagiri as the Hereditary Trustee vide order dated 18.05.1992 in O.A.No.40 of 1991, or the successive appointment of Late.Thiru.Sivaramakrishnan and Late.Thiru.Manickavasagam as the 8/20 https://www.mhc.tn.gov.in/judis W.P.No.19431 of 2020 Hereditary Trustees. Therefore, appointment of the legal heir of Late. Manickavasagam as a Hereditary Trustee was well reasoned and requires no interference and therefore, the present writ petition is liable to be dismissed.
17. It is further submitted that there is no question of violation of principles of natural justice merely because members of the family were not consulted since the next in the line of succession, of the Late.Thiru.Manickavasagam, was recognised in terms of Section 54(1) of the Act.
18. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Special Government Pleader for the official respondents and the learned counsel for the private respondents.
19. The Apex Court in Raj Kali Kuer v. Ram Rattan Pandey, (1955) 2 SCR 186 : AIR 1955 SC 493, held as follows:-
10. A careful review, therefore, of the reported cases on this matter shows that the usage of a female succeeding to a priestly office and getting the same performed through a 9/20 https://www.mhc.tn.gov.in/judis W.P.No.19431 of 2020 competent deputy is one that has been fairly well recognised. There is nothing in the textual Hindu law to the contrary. Nor can it be said that the recognition of such a usage is opposed to public policy, in the Hindu law sense. As already pointed out the consideration of public policy can only be given effect in the present state of the law, to the extent required for enforcing adequate discharge of the duties appurtenant to the office. Subject to the proper and efficient discharge of the duties of the office, there can be no reason either on principle or on authority to refuse to accord to a female the right to succeed to the hereditary office held by her husband and to get the duties of the office performed by a substitute excepting in cases where usage to the contrary is pleaded and established. In the present case such a usage was pleaded by the defendant in his written statement but no evidence of it was given.
Indeed as pointed out by the first appellate court, the plea that there has been a partition of the offices of the two temples and the implied recognition of the plaintiff's right to the office of the other temple at Gangupal appears to indicate the contrary usage. We are accordingly of the opinion that the claim of the plaintiff-appellant is made out and that she is entitled to succeed.
20. In the case of Mr.M.Gandhi vs. The Commissioner, Hindu Religious & Charitable Endowment Department, Chennai 600 034 and 10/20 https://www.mhc.tn.gov.in/judis W.P.No.19431 of 2020 two others this Court in W.P(MD)No.7905 of 2017 vide dated 14.03.2022 examined the scope of Section 54 of the Hindu Religious & Charitable Endowments Act, 1959. Para Nos.37 to 40 of the said order read as under:-
“ 37. A right to be appointed as a hereditary trustee has to be in consonance of Section 54 of the Tamil Nadu Hindu Religious & Charitable Endowments Act, 1959. Section 54 of the Act 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.
(2) When a temporary vacancy occurs in such an office by reason of suspension of the hereditary trustee under sub-section (2) of section 53, the next in the line of succession shall be entitled to succeed and perform the functions of the trustee until his disability ceases.
(3) When a permanent or temporary vacancy occurs in such an office and there is a dispute respecting the right of succession to the office, or when such vacancy cannot be filled up immediately, or when a hereditary trustee is a minor and has no guardian fit and willing to act as such or 11/20 https://www.mhc.tn.gov.in/judis W.P.No.19431 of 2020 there is a dispute respecting the person who is entitled to act as guardian ; or when a hereditary trustee is by reason of unsoundness of mind or other mental or physical defect or infirmity unfit for performing the functions of the trustee, the Joint Commissioner or the Deputy Commissioner, as the case may be, may appoint a fit person to perform the functions of the trustee of the institution until the disability of the hereditary trustee ceases or another hereditary trustee succeeds to the office or for such shorter term as the Joint Commissioner or the Deputy Commissioner as the case may be, may direct Explanation: In making any appointment under this sub-section, the Joint Commissioner or the Deputy Commissioner as the case may be, shall have due regard to the claims of the members of the family, if any, entitled to the succession.
(4) Any person aggrieved by an order of the Joint Commissioner or the Deputy Commissioner, as the case may be, under sub-section (3) may, within one month from the date of receipt of the order by him, appeal against the order to the Commissioner. (5) Nothing in this section shall be deemed to affect anything contained in the Tamil Nadu Court of Wards Act, 1902 (Tamil Nadu Act I of 1902). 38. As per Sub Section 1 to Section 54 of the Tamil Nadu Hindu Religious & Charitable 12/20 https://www.mhc.tn.gov.in/judis W.P.No.19431 of 2020 Endowments Act, 1959, where a permanent vacancy occurs in the office of the Hereditary Trustee of a religious institution, the next in the line of succession is entitled to succeed to the office. Even when there is a temporary vacancy on account of suspension of Hereditary Trustee, only the person in the next in line of succession is entitled to succeed.
38. As per Sub Section 1 to Section 54 of the Tamil Nadu Hindu Religious & Charitable Endowments Act, 1959, where a permanent vacancy occurs in the office of the Hereditary Trustee of a religious institution, the next in the line of succession is entitled to succeed to the office. Even when there is a temporary vacancy on account of suspension of Hereditary Trustee, only the person in the next in line of succession is entitled to succeed.
39. As per Sub Section 3 to Section 54 of the Tamil Nadu Hindu Religious & Charitable Endowments Act, 1959, when a permanent or temporary vacancy occurs in an office and/or where there is a dispute respecting the right of succession to the office, or when such vacancy cannot be filled up immediately, or when a Hereditary Trustee is a minor and has no guardian fit and willing to act as such or there is a dispute respecting the person who is entitled to act as guardian, or when a Hereditary Trustee is by reason of unsoundness of mind or other mental or physical defect or infirmity unfit for performing the functions of the Trustee, the Joint Commissioner or the Deputy Commissioner, as the case may be, may appoint a fit person to perform the functions of the Trustee of the Institution until the 13/20 https://www.mhc.tn.gov.in/judis W.P.No.19431 of 2020 disability of the Hereditary Trustee ceases or another Hereditary Trustee succeeds to the office or for such shorter term as the Joint Commissioner or the Deputy Commissioner as the case may be, may direct.
40. The right succeed is confined to the next in line of succession. Such person should have attributes to be appointed to such a post as it is an important post with responsibility.
21. Dealing with similar circumstances, it was held as follows:-
41. The petitioner’s father late S.Mahalinga Gounder had disability. Therefore, the petitioner’s father late S.Mahalinga Gounder abdicated his right to the office of a Hereditary Trustee in favour of his younger brother late Sarangapani Gounder, the father of the third respondent.
42. Thus, the petitioner’s right to be appointed as Hereditary Trustee was lost long time back.
Only a member from the family of the late Sarangapani Gounder could have been considered as a person in the next in line of succession. Therefore, only the third respondent or any other member from the family of late Sarangapani could have been appointed as a Hereditary Trustee.
43. Since the petitioner has no right under section 54 of the H.R. & C.E. Act, 1959, question of limitation though a mixed question of fact in law, is irrelevant. Although, the petitioner 14/20 https://www.mhc.tn.gov.in/judis W.P.No.19431 of 2020 has been non suited in the impugned order on the ground of limitation, I am of the view, even if the said portion of the order is quashed, it would make no difference as the petitioner has no right to be appointed as the Hereditary Trustee as there were next in line of succession.
22. The decision of this Court in the case of C.R.Ratan vs. The Commissioner, Hindu Religious & Charitable Endowment Department, Uthamar Gandhi Salai, Chennai 600 034 and two others, 2011 SCC online 681, cited by the learned counsel for the petitioner dealt with a different situation where a permanent vacancy arose to the post of a Hereditary Trustee. There was a “Will” which gave indication as to who could be appointed as a Hereditary Trustee. This is not the case here.
23. The Court in N.Muthuvali vs. The Joint Commissioner, Hindu Religious & Charitable Endowment Administrative Department, Palayamkottai, Tirunelveli-2 and three Others, (2002) 5 CTC 3, dealt with the issue relating to appointment of a “fit person”. There, the petitioner’s father was disqualified. Under these circumstances, the appointment of the “fit person” was challenged. It was quashed as a person in the next in line of 15/20 https://www.mhc.tn.gov.in/judis W.P.No.19431 of 2020 succession had claimed his right to be appointed as a Hereditary Trustee. Therefore, the said decision is not relevant.
24. The decision of this Court in Prem Anand vs The Commissioner, Hindu Religious and Charitable Endowments, Madras and another, (1990) 1 LW 144, which hold that there is no necessity for the next in line to make an application before the department to succeed to the office of trustee, in the absence of any rival claims again is not relevant.
25. In the present case, right from the time when Dr.(Captain) A.J.Arunagiri was appointed as the Hereditary Trustee/Dharmakarta and thereafter late.Tr.Sivaramakrishnan and thereafter, when the husband of the 5th respondent late.Tr.Manickavasagam, was appointed as a Hereditary Trustee/Dharmakarta there was no contest by the other Hereditary Trustees/Dharmakarta identified by the founder, late.Tr.Viswanatha Pillai during his life time.
26. The person through whom the petitioner’s claim right had given up the right in the year 1992 itself when Dr.(Captain) A.J.Arunagiri was 16/20 https://www.mhc.tn.gov.in/judis W.P.No.19431 of 2020 appointed as a Hereditary Trustee. Thereafter, two other appointments have taken place as mentioned above where also there was no contest. Therefore, prima facie, it cannot be said there was a prevailing customs to appoint the other Hereditary Trustees on turn with the consent of other Dharmakartas. Even if such a customs existed, the person through whom the petitioner claimed right appears to have abdicated his right. There was a break in the chain. In any event, existence of such a custom is not directly discernible from the records before this Court.
27. The expression “ next in the line of succession” would mean the person who is actually entitled to succeed. The petitioner has not shown existence of any customs prevailing to the contrary. Therefore, there is no merits in the present writ petition.
28. It is however open for the petitioner to approach the Joint Commissioner under Section 63(b) of H.R. & C.E.Act, 1959, to prove existence of any custom by letting in evidence in the light of the so-called bulletin of the Temple of the year 1998 filed by the petitioner in the typedset. Authenticity of the said document also cannot be decided in this proceeding. 17/20 https://www.mhc.tn.gov.in/judis W.P.No.19431 of 2020
29. Therefore, liberty is given to the petitioner to file appropriate application under Section 63(b) of the Hindu Religious and Charitable Endowments Act, 1959 to establish his right within a period of 30 days from the date of receipt of a copy of this order. If such application is filed, the Joint Commissioner shall endeavour to dispose the same on merits and in accordance with law, within a period of twelve months from the date of receipt of a copy of this order.
30. This writ petition is dismissed with the above observation. No costs. Consequently, connected miscellaneous petition is closed.
08.07.2022
Index : Yes/No
Internet : Yes/No
kkd
To
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https://www.mhc.tn.gov.in/judis
W.P.No.19431 of 2020
1.The Commissioner,
H.R.C.E. Department,
Chennai 34.
2.The Joint Commissioner,
H.R. & C.E.Department,
Salem.
3.The Inspector,
H.R. & C.E.Department,
Salem.
4.The Executive Officer,
A/m.Sakthi Mariamman Thirukoil,
Magudanchavadi, Sankagiri Taluk,
Salem District.
C.SARAVANAN,J.
rgm/kkd
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W.P.No.19431 of 2020
Pre-delivery Order in
W.P.No.19431 of 2020
08.07.2022
20/20
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