Madras High Court
S.Ramakrishnan vs S.Marimuthu on 23 December, 2009
Author: D.Murugesan
Bench: D.Murugesan, S.Nagamuthu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23/12/2009
CORAM
THE HONOURABLE MR.JUSTICE D.MURUGESAN
and
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
W.A.(MD) No.673 of 2008
S.Ramakrishnan .. Appellant
versus
1. S.Marimuthu
2. The Commissioner
Hindu Religious & Charitable Endowments
Nungambakkam, Chennai-34
3. The Joint Commissioner
Hindu Religious & Charitable Endowments
Sivagangai
4. S.Ramachandran
5. S.A.Rajendran Poosari
6. R.Soundararajan Poosari
7. S.Kathiresan Poosari
8. S.Ramar Poosari
9. R.Maharajan Poosari
10.S.R.M.Ramamoorthy Poosari
(RR 5 to 10 given up as per the
order of Court dt. 16.12.2009) .. Respondents
Appeal under Clause 15 of the Letters Patent against the order dated
17.9.2008 made in W.P.(MD) No.420 of 2007.
!For Appellant ... Mr.K.M.Vijayan
Senior Counsel for
Mr.V.Sasikumar
^For Respondents ... Mr.T.R.Rajagopalan
Senior Counsel for
Mrs.N.Krishnaveni for R1
Mr.K.M.Vijayakumar
Special Government Pleader
for R2 & R3
Mr.S.Conscious Ilango
for R4
:JUDGMENT
D.MURUGESAN, J.
The writ appeal pertains to the approval of the hereditary trustee to Arulmighu Mariamman Temple at Irukkankudi, Sattur Taluk, Virudhunagar District. The said temple is a listed temple under the control of Hindu Religious and Charitable Endowments Board and the administration of the temple is governed by a scheme framed by the Board in its proceedings dated 4.5.1935. The scheme was later modified on 31.5.1955 by which a provision for appointment of an Executive Officer was also made.
2. One of the hereditary trustees by name Ramasamy Poosari died on 6.8.75 leaving behind his three female heirs. Mrs.Seeniammal alias Sundarammal, the eldest daughter, applied to the Joint Commissioner, Hindu Religious and Charitable Endowments Department, Sivagangai to register her as the hereditary trustee. That was objected to by the other hereditary trustees on the ground that she being a female, could not be appointed as the hereditary trustee. Hence Seeniammal alias Sundarammal filed a suit in O.S.No.188 of 1993 on the file of District Munsif Court, Sattur for a declaration that she succeeded her father to the office of trusteeship of the temple. That suit was decreed declaring that she is entitled to the office of trusteeship even though she being a female. As against the said judgment and decree, an appeal was filed in A.S.No.27 of 1996 on the file of Principal District Judge, Srivilliputhur and the same was dismissed. As against the said judgment and decree, a further appeal in S.A.No.465 of 1998 was filed before this Court and the same was later on withdrawn.
3. In view of the above, Seeniammal alias Sundarammal was registered as the hereditary trustee of the temple by the proceedings of the Joint Commissioner dated 29.1.98. She died on 2.4.2004 leaving behind three sons and one daughter as her heirs. The first respondent by name Marimuthu, being the eldest son, claimed the right to hold the office of trusteeship in terms of Section 54(1) of the Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as "the Act"). However, his brother viz., the appellant by name Ramakrishnan, being the last son of Seeniammal, objected to the same and filed a petition on 18.7.2004 before the Joint Commissioner, Hindu Religious and Charitable Endowments Department, Sivagangai on the ground that the first respondent had acted against the interest of the institution and therefore he is disqualified in terms of Section 26(1)(h) of the Act. By the proceedings dated 6.5.2005, the Joint Commissioner registered the first respondent as the hereditary trustee on the ground that only the eldest member can be registered as the hereditary trustee. The appellant thereafter filed W.P.(MD) No.4647 of 2005 seeking to quash the order of the Joint Commissioner dated 6.5.2005. The said writ petition was allowed on the ground that the fourth respondent herein was not heard and the principles of natural justice were violated. Hence the matter was remanded back to the Joint Commissioner for fresh consideration. After remand the Joint Commissioner, Hindu Religious and Charitable Endowments Department, Sivaganga, by his further proceedings dated 31.3.2006, once again held that the first respondent is entitled to become the hereditary trustee after the death of his mother.
4. That order was again questioned by the appellant in an appeal before the Commissioner, Hindu Religious and Charitable Endowments Department, Chennai in A.P.No.20 of 2006 and the same was allowed on the ground that the first respondent had purchased the properties belonging to Arulmighu Chidambareswarar Temple, Sattur from a third party and thereby he had acted adverse to the interest of the institution and consequently, he is disqualified under Section 26(1)(h) of the Act. He also found that the first respondent has not proved the Will executed by his mother was forged. Therefore, he remitted the matter back to the Joint Commissioner to verify whether the first respondent had purchased the Kattalai properties of Arulmighu Chidambareswarar Temple knowing fully well that they were the properties of the temple, to decide as to who is next in line of succession between the appellant and first respondent taking into account of the existence of Will.
5. The above order was questioned by the first respondent in the writ petition. So far as the dispute relating to the purchase of Kattalai properties of Arulmighu Chidambareswarar Temple by the first respondent and the existence of the Will are concerned, the learned single Judge found that the order of the Commissioner in directing the Joint Commissioner to decide the succession based on the Will cannot be sustained, as the Joint Commissioner has no jurisdiction to go into that question and the same should be decided only in a suit. So far as the application of Section 26(1)(h) of the Act is concerned, the learned single Judge found that it is applicable only if an individual acted adverse to the interest of that temple or religious institution and not in any other temple or any other institution unconnected with the temple. With these findings, the learned Judge allowed the writ petition. Aggrieved by the same, the third respondent in the writ petition has preferred this appeal.
6.We have heard Mr.K.M.Vijayan, learned senior counsel appearing for the appellant, Mr.T.R.Rajagopalan, learned senior counsel with Mrs.N.Krishnaveni, learned counsel for the first respondent, Mr.K.M.Vijayakumar, learned Special Government Pleader for the Hindu Religious and Charitable Endowments Department and Mr.S.Conscious Ilango, learned counsel for the fourth respondent.
7. Mr.K.M.Vijayan, learned senior counsel for the appellant would fairly submit that the finding of the learned single Judge as to the dispute relating to the existence of Will, the civil Court alone would have jurisdiction and that neither the Commissioner nor the Joint Commissioner of Hindu Religious and Charitable Endowments can go into the said issues, cannot be found fault with. However, the learned senior counsel would submit that when once it is alleged that the first respondent had purchased the Kattalai properties of Arulmighu Chidambareswarar Temple, in terms of Section 26(1)(h) of the Act, he is disqualified to be approved as the hereditary trustee. He would also submit that the expression "the institution" employed in Section 26(1)(h) must be read conjointly with the expression "any religious institution" employed in Section 26(1) of the Act. If both the provisions are read together, the only conclusion will be that if a person has acted against the interest of a religious institution, he is disqualified and cannot be considered for appointment as the hereditary trustee in any religious institution.
8. On the other hand, Mr.T.R.Rajagopalan, learned senior counsel for the first respondent would submit that the entire issue is governed by the provisions of Section 54 of the Act, which contemplate that 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. By virtue of that provision, the first respondent, being the eldest member, had succeeded to the office after the demise of his mother. When that was objected, an enquiry was conducted by the Joint Commissioner in terms of Section 63 and held that the first respondent is entitled to succeed to the office of hereditary trustee. That order was carried on to further appeal to the Commissioner under Section 69 of the Act. Therefore the provisions of Section 26 relating to appointment cannot be made applicable to the facts of this case. That apart, even assuming that the provisions of Section 26(1)(h) would apply to the case on hand, it would apply only when a person is disqualified for being appointed as a trustee if he has acted adverse to the interest of the institution. The expression "the institution" refer to that institution alone and not to other institutions. Hence the learned senior counsel would submit that the order under appeal needs no interference.
9. Mr.S.Conscious Ilango, learned counsel appearing for the fourth respondent has adopted the arguments of the learned senior counsel Mr.K.M.Vijayan for the appellant. He would also submit that the case on hand is squarely covered under Section 26(1)(h) of the Act, which relates to the appointment. After the demise of the hereditary trustee, in the event any one of the disqualifications is noted in respect of the person who is in line, he cannot be approved as the hereditary trustee. In that event, the appointment of the first respondent is construed to be made only under Section 26(1) and in that case, he is disqualified in terms of Section 26(1)(h) of the Act. He would further submit that the expression "the institution" employed in that section would mean "any institution" and not restricted to the particular institution. In matters of appointment of trustees, the provisions of the Act cannot be given a narrow meaning and they should be given a wider meaning in the sense that the disqualification would be applicable to any institution and not to the particular institution, it is argued.
10. We have carefully considered the rival contentions. The filling up of the vacancies in the office of "trustee" and "hereditary trustee" must be considered with reference to the scheme of the Act. Sub-section (11) of Section 6 of the Act defines a "hereditary trustee" as follows:-
"6.(11) "hereditary trustee" means the trustee of a religious institution, the succession to whose office devolves by hereditary right or is regulated by usage or is specifically provided for by the founder, so long as such scheme of succession is in force."
Sub-section (22) of Section 6 defines a "trustee" as follows:-
"6.(22) "trustee" means any person or body by whatever designation known in whom or in which the administration of a religious institution is vested and includes any person or body who or which is liable as if such person or body were a trustee."
As far as the hereditary trustee is concerned, he becomes so by way of succession. As far as the trustee is concerned, it is by way of appointment. Whenever a vacancy to the office of trusteeship arises, it is to be filled in by the Government in terms of Section 49. The qualification of trustees is enumerated under Section 26(1) of the Act. The disqualification enumerated under clauses (a) to (h) of sub-section (1) of Section 26 can be divided into two categories. Except clauses (e), (f) and (h), all clauses relate to the disqualification of a person for being appointed as a trustee of any religious institution. That disqualification is complete and substantial. On the other hand, the disqualification enumerated under clauses (e), (f) and (h) are to be applied depending upon the situation. For example, the disqualification enumerated in clause (e) of sub-section (1) of Section 26 contemplates that if a person is interested in a subsisting lease of any property or a contract made with or any work being done for the religious institution or is in arrears of any kind due to such religious institution or endowment, he is disqualified from being appointed as a trustee. The expression "religious institution" employed therein must necessarily be construed to be a particular institution where he has got a subsisting lease etc. Clause (f) of that section contemplates that if a person is employed as a paid legal practitioner on behalf of or against the religious institution, he is disqualified from being appointed as a trustee in that institution. The expression "religious institution" employed in that clause relates to that institution only since if a person is employed as a paid legal practitioner on behalf of or against the religious institution cannot be a disqualification for such person to be appointed as a trustee in any other religious institution. Similarly, clause (h) of that section must also be read in the manner that if a person has acted adverse to the interest of the institution, he is disqualified from being appointed as a trustee. The expression "the institution" should necessarily mean that the act of that person which was adverse to the interest should be in respect of that institution alone and not to the other institutions.
11. Mr.K.M.Vijayan, learned senior counsel has submitted that the expression "the institution" employed in clause (h) should be read along with the expression "any religious institution" employed in sub-section (1) of Section 26. In our opinion, the said contention cannot be accepted. The expression "any religious institution" employed in sub-section (1) of Section 26 is in relation to all the clauses except clauses (e), (f) and (h). If the provisions are read as suggested by Mr.K.M.Vijayan, even a legal practitioner employed in a particular religious institution will be disqualified from being appointed as a trustee in any other religious institution, which interpretation has no sound reason behind it.
12. That apart, in the given facts and circumstances of the case, whether the first respondent was appointed in terms of Section 26(1)(h) of the Act or he succeeded to the vacancy that arose in terms of Section 54 of the Act should be considered. If a permanent vacancy occurs in the office of hereditary trustee of a religious institution, the next person in the line of succession shall be entitled to succeed to the office. This provision entitles the next in the line of succession to succeed to the office without any consideration by the authorities in terms of Section 26(1) of the Act. In case of a dispute respecting the right of succession to the office either be it permanent or temporary or that 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 as provided under sub-section (3) of Section 54 of the Act, 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 they may direct. The above provision under sub-section (3) of Section 54 shows the disqualification of the next in the line of succession to succeed to the office of hereditary trustee, indicating thereby that it is not a fresh appointment and it is only by way of succession. As against the said order, an appeal is also provided to the Commissioner in terms of sub-section (4) of Section 54 of the Act.
13. In addition to the above, an enquiry is also contemplated under Section 63 of the Act by the Joint Commissioner or Deputy Commissioner, as the case may be, in respect of a dispute. That apart, there is a power provided under Section 53 to the appropriate authority to suspend, remove or dismiss any trustee if he ceases to profess Hindu religion or fails to discharge the duties and perform the functions of a trustee in accordance with the provisions of the Act and the rules and so on. Clause (j) of sub-section (2) of Section 53 again refers to "acts adversely to the interests of the institution" as one of the disqualification.Therefore, if at all a person is aggrieved by the succession of hereditary trustee, he could only invoke the provisions of Section 63 and approach the Joint Commissioner to point out the disqualification enumerated under Section 53 insofar as it applies to the hereditary trustee and seek for suspension, removal or dismissal of such hereditary trustee. Factually as well, as rightly contended by Mr.T.R.Rajagopalan, learned senior counsel, the appellant has approached the Joint Commissioner only by invoking the provisions of Section 63 for an enquiry, where the Joint Commissioner has got only limited jurisdiction and not under Section 53 seeking for suspension, removal or dismissal of the hereditary trustee on the disqualification enumerated thereunder.
14. Whenever such succession takes place to the vacancy in the office of hereditary trustee, the provisions of Section 54 alone would apply and not the provisions of Section 26, which relate to fresh appointments and that too, only in respect of a trustee and not to a hereditary trustee. Therefore, the disqualification provided under Section 26(1), if at all to be relied upon, can be only in the case of fresh appointment to the office of trustee and not to the office of hereditary trustee.
15. One more argument was advanced by Mr.K.M.Vijayan by placing reliance on Section 47(1)(a) to the second proviso, wherein it is stated that the interest of the public generally should also be taken into consideration in case of appointment of a hereditary trustee. In our opinion, that section is not applicable to the case of a hereditary trustee, as he succeeds to the vacancy caused by the death of an erstwhile hereditary trustee.
16. On a combined reading of the definitions of "trustee" and "hereditary trustee" and the appointment of a trustee and the disqualification thereunder for such appointment under Section 26(1) and that of the succession of a hereditary trustee to the vacancy arising in the office, the only conclusion that could be arrived is that in case of a hereditary trustee, there is no fresh appointment by the Joint Commissioner, as it is by way of succession. Nevertheless, when a person claims to have succeeded to the hereditary trusteeship, he may be suspended, removed or dismissed only by invoking the disqualification clause enumerated under Section 53 of the Act and not the disqualification enumerated under clause (h) of sub-section (1) of Section 26 of the Act.
17. For the foregoing conclusions, the submissions as to the interpretation of the expression "the institution" employed in clause (h) of sub-section (1) of Section 26 and the expression "any religious institution"
employed in sub-section (1) of Section 26 need not be gone into. Hence we are not inclined to interfere with the order in the writ petition. For all the above reasons, the writ appeal must fail and accordingly, the same is dismissed. Consequently, interim stay is vacated and the M.P.(MD) No.1 of 2008 is also dismissed. No costs.
ss To
1. The Commissioner Hindu Religious & Charitable Endowments Nungambakkam Chennai 600 034
2. The Joint Commissioner Hindu Religious & Charitable Endowments Department Sivagangai