Madras High Court
The Commissioner, H.R. And C.E., (A) ... vs Vairamuthu (Died) And Ors. on 25 April, 2008
Author: G. Rajasuria
Bench: G. Rajasuria
JUDGMENT G. Rajasuria, J.
1. This appeal has been filed as against the judgment and decree dated 30.04.1986 passed in O.S. No. 110 of 1983 by the learned Subordinate Judge, Madurai.
2. The parties, for convenience sake, are referred to hereunder according to their litigative status before the trial Court.
3. Niggard and bereft of details, the case of the plaintiffs as stood exposited from the plaint could be set out thus:
(i) The plaintiffs 1 to 5 are the hereditary trustees of Madurai Velliambala Street Poorveega Mahajana Sangam,(hereinafter referred to as Trust) which is admittedly a public religious trust owning temples and properties as found set out in the plaint schedule and also performing charitable activities. The forefathers of the plaintiffs 1 to 5 founded the said trust and in other words, the said trust is both religious and secular in character.
(ii) Under the religious part of the trust, the sannathies namely, Vinayagar, Santhi Veerappasamy and Muniswaran in Velliambala Street, were maintained and poojas were performed to the deities concerned, in addition to that, poojas are performed to Mariamman in Teppakulam, Madurai, during the Tamil month of Masi and Panguni every year and poojas are conducted to Lord Subramania of Thirupparankundram during the Tamil month of Karthigai every year. These religious activities have been carried out ever since 1909.
(iii) The meetings are being held for the effective implementation of the Trust. One such meeting was held on 11th Masi Keelaga (1909) where the member of that Sangam decided to carry on with the Trust in the manner as found set out in paragraph No. 6 of the plaint, which is extracted hereunder for ready reference:
6. The trust has to be managed by three communities Thevar, Servai and Pillaimar and among these communities, trustees have to be selected and these persons have to hold office till their life time and hereditarily and by long usage and custom the office of trusteeship has become hereditary and the succession to whose office devolves by hereditary right and is also regulated by usage. The office of the trusteeship are such Nattanmai, Kanakkar, Thandal, Athikari and Maniam, these posts have been held hereditarily and in succession ever since the year 1909.
7. In order to make it much more efficient another Mahajanam meeting was held on 21.02.1954 wherein it was resolved to draw two persons from Thevars, two from Servais and one from Pillaimar and five more persons were co-opted, to help the hereditary trustees Nattanmai, Kanakkar, Thandal, Athikari and Maniam. the trusteeship post of Nattanmai was held by the 1st plaintiff's forefather ever since the year 1909. The trusteeship post of Kanakkar was held by the forefather of the 2nd plaintiff. The trusteeship post of Thandal was held by the forefathers of 3rd plaintiff, and the trusteeship post of Athikari was held by the forefather of the 4th plaintiff and the trusteeship post of Maniam was held by the forefathers of the 5th plaintiff. From time immemorial the trust is being managed as aforesaid as hereditary trustees by custom and usage which has assumed the force of law and therefore the office of the trusteeships of Madurai Velliambala Theru Poorviga Mahajana Trust' are hereditary.
The plaintiffs 1 to 10 and another person M.Ramasamy Servai now dead in their capacity as trustees of Madurai Velliambala Theru Poorviga Mahajana Trust filed an application in O.A. No. 126 of 1975 on the file of Deputy Commissioner, H.R & C.E, Madurai, for a declaration that office' of trusteeships of the said trust Madurai Velliambala Theru Poorviga Mahajana Trust are hereditary within the meaning of Section 6(11) of the Tamil Nadu Act 22 of 1959.
4. During the year 1973, the said Sangam was came to be registered as a Society under the Societies Registration Act and the Registration number assigned to it was 26/1973. The relevant rules and by-laws were also framed and got registered. Subsequently, O.A. No. 127 of 1975 was filed by the plaintiffs 1 to 10 herein before the Deputy Commissioner, H.R & C.E Department, Madurai to have a scheme framed for the administration of the affairs of the Trust and there was also a prayer in it that the hereditary trusteeship as found set out supra in the plaint, had to be recognised by the H.R.&C.E Department while formulating the said scheme.
5. However, on erroneous appreciation of facts and application of law, the Deputy Commissioner dismissed the said O.A. No. 127 of 1975 vide order dated 10.02.1978. As against such order, the appeal was filed before the Commissioner concerned who confirmed the order of the lower authority erroneously. The authority under the H.R&C.E.Department, appointed a fit person to take charge of Madurai Velliambala Street Poorveega Mahajana Sangam and such steps taken by the authorities under the H.R&C.E Department are untenable. Hence, the plaintiffs filed the suit with the following main prayers:
(a) Cancelling the order dated 31.07.1982 in A.P. No. 56 of 1979 on the file of the 1st defendant herein, by declaring that office of the trusteeships namely, 'Nattanmai, Kanakkar, Thandal, Athikari and Maniam' of the 'Madurai Velliambala Theru Poorviga Mahajana Trust' are hereditary.
(b) and granting consequential reliefs of injunction restraining the 3rd defendant herein from taking charge of Madurai Velliambala Theru Poorviga Mahajana Trust.
6. Denying and refuting, the allegations/ averments in the plaint, the first defendant filed the written statement which was adopted by the second defendant, justifying the order passed by the Deputy Commissioner as well as the confirmation order passed by the Commissioner in the appeal concerned, in addition to setting out the following averments:
The allegations in paragraphs 8 and 9 of the plaint are untenable and misleading. The trust was maintained by the elected trustees and therefore, there cannot be any hereditary trustees. The Deputy Commissioner issued a draft scheme dated 10.02.1978 under the H.R&C.E Act. Pending settlement of scheme, the second defendant by his order dated 16.11.1978 in Roc.O.A. No. 127/1975/C1, appointed the Executive Officer of Arulmighu Koodalagar Temple, Madurai, as a fit person under Section 64(4) of the Act to look after the affairs of the institution. As such, the suit has to be dismissed.
7. The third defendant filed the written statement, almost reiterating the essence of the contentions as found set out in the written statement of the first defendant. The defendants 4 to 6 filed memo adopting the written statement of the first defendant.
8. The trial Court framed the relevant issues.
9. Ultimately, the trial Court decreed the suit.
10. Being aggrieved by and dissatisfied with, the judgment and decree of the trial Court, the defendants 1 and 2 filed this appeal on the grounds inter alia thus:
The judgment and the decree of the trial Court, are erroneous. The plaintiffs 1 to 5 are not the hereditary trustees. The lower Court failed to appreciate that the said registered society was not cited as party to the proceedings. Since the trustees are elected at the General Body Meeting, there could not be any hereditary trusteeship in favour of the plaintiffs 1 to 5. Ignoring the documentary evidence, the trial Court simply decreed the suit.
11. The points for consideration are:
(i) Whether the defendants 1 and 2 were justified in understanding as though the plaintiffs 1 to 5 are elected members of the said Sangam and consequently, justified in holding that the elected members cannot be the hereditary trustees?
(ii) Whether the plaintiffs 1 to 5 are the hereditary trustees of the said Sangam?
(iii) Whether there is any infirmity in the judgment and decree of the trial Court.
12. Heard both sides.
13. The perusal of the judgment of the trial Court would clearly highlight the fact that it relied on Ex.A.3, the minutes book of the plaintiffs' institution wherein it is found clearly recorded even as early as on 21.02.1954 that as many as five persons viz., Mariappan Thevar, Thenvasaga Anandhar, Chokkathevar, Sangili Servai and Shanmugam Servai were recognised as the hereditary trustees.
14. At this juncture, it would not be out of place to highlight that the first plaintiff herein, is none but the son of Mariappa Thevar referred to supra. The second plaintiff as per the plaint averments, happened to be the descendant of his respective forefathers, occupying that post of hereditary trustee. The third plaintiff is the son of Chokka Thevar. The fourth plaintiff is the son of Sangili Servai referred to supra and the fifth plaintiff is the same person referred to in Ex.A.3. During the pendency of the litigation, some of the hereditary trustees died and their respective legal representatives impleaded.
15. In Ex.A.3, the minutes book, at page bearing No. 18, it is found stated that the people concerned of that locality recognised the hereditary trusteeship and over and above that, they wanted only the committee members to be elected, as the period of the committee members got expired. At page bearing No. 9 of Ex.A.3, it is found clearly spelt out that apart from the said five hereditary trustees, five other committee members were there and only for such persons, the elections ere conducted periodically. The trial Court therefore correctly observed in paragraph No. 7 of its judgment that Ex.A.3 refers to the hereditary trustees. In Ex.A.2, the counter foils of the rent receipts, it is found that one and the same person namely Thenvasaga Pillai signed as the accountant for a pretty long time. In fact, Mariappa Thevar, one other hereditary trustee also signed Ex.A.2 in various pages.
16. Subsequently, Ex.A.4, the memorandum of association and the by-laws concerned, which emerged during the year 1973, would highlight that the said institution got itself registered under the Societies Registration Act and the Registrar of Firms assigned the Register number as 26 of 1973 to it. In that, those five persons referred to as the hereditary trustees in Ex.A.3, were recognised as hereditary trustees and consequently, they are having the right to continue in office. No election at all is contemplated for electing such hereditary trustees. The best persons who could speak about the hereditary trusteeship,are the members themselves of that Sangam (Trust) and they manifested their minds reflecting the realities which existed during 1954 as in Ex.A.3 and subsequently also including the one during the year 1973. The evidence on record clearly demonstrates that those hereditary trustees in fact have been continuously occupying these posts without any let or hindrance. There is nothing to prove that at any time any other person other than hereditary trustees occupied such posts.
17. The learned Government Pleader drawing the attention of this Court to the definition of the term 'hereditary trustee' as found set out in Section 6(11) of the H.R&C.E Act, would develop his argument that the plaintiffs 1 to 5 do not come within the purview of Section 6(11) of the Tamil Nadu Hindu Religious and Charitable Endowments Act. Hence, it is just and necessary to extract Section 6(11) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, thus:
Section 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;
18. A mere perusal of it, would unambiguously indicate that relating to a religious institution if the succession to the office devolves by the hereditary right or regulated by usage, then that would be sufficient to hold that a member is a hereditary trustee. Here, those five posts are apparently and obviously, clearly and candidly convey that those are not mere insignificant posts, but really key posts for managing and administering the Sangam (Trust) and those five persons occupying it, have been occupying by sheer succession by stepping into the shoes of their respective forefathers.
19. The trial Court's judgment and the above discussion would clearly highlight that even in the year 1954, it is found spelt out in Ex.A.3, that those five persons recognised holding five distinct posts and those posts were treated as held hereditarily. Ex.A.3, per se, an ancient document and a mere perusal of it would highlight that continuously the minutes of the Sangam were recorded ever since 1954 onwards.
20. The learned Counsel for the plaintiffs in all fairness would submit that the plaintiffs could not adduce evidence as to what happened in the year 1909, the year in which that public institution emerged. However, he would submit that from the evidence available, it could rightly be inferred that five persons whose names are found set out at page No. 9 of Ex.A.3, have been holding those five posts in that public institution as hereditary trustees and that their forefathers were occupying their respective posts.
21. My above discussion also would clearly reveal that out of those five persons referred to at page No. 9 in Ex.A.3, the fifth plaintiff is still alive and others are descendants of their respective trustees whose names are found in Ex.A.2. No contrary evidence has been adduced to prove that those posts were occupied by some other persons.
22. The trial Court also in paragraph No. 8 referred to the other exhibits marked on the side of the plaintiffs wherein the plaintiffs projected themselves as hereditary trustees of the said institution. Whereas the learned Government Pleader drawing the attention of this Court to Ex.A.10, would develop his argument that even though Ex.A.10 emerged during the year 1962, those five persons were referred to, only as 'Theru Nirvagastharkal" and not as hereditary trustees. One fact is clear that even in the year 1954, as revealed by Ex.A.3, those five persons were referred to as permanent trustees and even in the year 1962, only those five persons were found set out as trustees as in Ex.A.3 and that itself is indicative of the fact that no other person is allowed to occupy such posts. In continuation of the same, in the year 1973, those five persons only figured in the memorandum of association.
23. As such, it is clear that ever since 1954 only one set of persons are occupying the posts and on the death of one of the persons of his respective legal descendant only occupies the post. In these circumstances, a fortiori, those persons are occuping the posts hereditarily wherefore they could rightly be termed as hereditary trustees and there could be no embargo for them to occupy such posts hereditarily.
24. I would like to refer to the following decisions:
(i) Subramania Pillai v. Trustees, Temple Group reported in 1977 (II) MLJ 77, wherein it was held on the point that even though the trust may be a public trust, the hereditary trustee could be appointed among the family members concerned.
(ii) The unreported decision of the Honourable Apex Court in M.S.V. Raja and Anr. v. Seeni Thevar and Ors. in Civil Appeal No. 2417 of 1992, wherein the same point set out supra has been posited by the Honourable Apex Court.
25. The precedent of this Court in Devaki v. The Hindu Religious and Charitable Endowments Department reported in 1997 II MLJ 331, could fruitfully be referred to. Certain excerpts from it, could be extracted hereunder:
21. The learned Counsel for the appellant cited the decision reported in Ranganatha Pillai v. The Commissioner for H.R&C.E (1979) 2 M.L.J 23 wherein S.Mohan,J., as he then was, held as follows:
The definition of 'hereditary trustee' in Section 6, Clause(ii) of the Tamil Nadu Hindu Religious and Charitable Endowments Act is very wide in its amplitude. Hereditary trustee is not to be understood as from father to son or son to his son. Having regard to the comprehensive definition, it is enough if a usage is established for a long number of years evidencing exercise of hereditary trusteeship of a particular temple or temples by members of a family. In the instant case, there was no gainsaying that the plaintiff's family alone exercised such right. There were very valuable documents in which description was found that the predecessors of the plaintiff's were the trustees. No objection was taken to the genealogical tree and the trusteeship had been continuously exercised by the members of the plaintiff's family without any objection or hindrance.
22. The above judgment, in our opinion, is applicable to the facts and circumstances of the case on hand. In this case, it is clearly established that for a long number of years (generations) the appellant and her ancestors have exercised their hereditary trusteeship in this particular temple. In the instant case, there is no other evidence to show that except the plaintiff and her ancestors, anybody else has exercised any such right. Very valuable documents viz., Exs.A.3 to A.5 have been filed by the appellant. Ex.A.3 describes Veerabadra Pillai son of Muthu Pillai as the trustee of the suit temple. It is also stated that the property has been gifted for daily pooja and neivethyam for their family deity Angalaparmeswari. There is no reason for us to reject the said ancient document which confers right on the appellant. The trusteeship has been continuously exercised by the members of the appellant's family without any objection or hindrance from any other source. It must, therefore, be held that the trusteeship of the suit temple was hereditary in the family of the appellant. In similar matters, this Court has taken the view that in respect of a temple when the members of the family for three generations are managing the affairs of the temple, it must be held that the trusteeship was hereditary in the family. In our opinion, the above ratio squarely applies to the case on hand.
23. In the decision reported in The Roman Catholic Mission v. The State of Madras (1967) I MLJ 119, the Supreme Court has clearly observed that the Inam Fair Register incorporated an official declaration which was the result of detailed inquiries and all evidence collected in respect of each inam was carefully sifted and considered before any conclusion was reached or declared and in the absence of positive and proper evidence to the contrary, such declaration must possess supreme importance. In the instant case, Ex.A.4, the Inam Fair Register, which could not be filed before the 1st respondent, was filed before the trial Court and the entries therein would show that the suit temple is an ancient temple and grant has also been made and conferred on the temple at the time of settlement of minor inams. As already noticed, there is no positive and proper evidence to the contrary. As such, the declaration made under Ex.A.4, as indicated by the Supreme Court, must possess supreme importance.
24. The finding of the learned single Judge that there is absolutely no evidence worthy of acceptance is wholly unacceptable and against the concrete documentary evidence available in this case. We have already pointed out that there is no evidence at all on the side of the Department to disprove the case of the appellant. The evidence of P.Ws.1 and 2 is cogent and convincing. P.W.2 is very categorica in his evidence that the members of the family of the appellant alone have been the hereditary trustees of the suit temple. According to him, he has been performing the poojas for the past fifty years. There is no rhyme or reason to reject the evidence of a Poojari, who has been functioning as such for the last fifty years in the very same temple. The evidence of D.W.1 is worthless. We are of the view that if the office of trusteeship of a particular religious institution has been hereditary hereditary in a particular family, it would constitute hereditary trusteeship. The trial Court having found that the predecessors of the appellant functioned as trustees, had erred in dismissing the same.
26. The learned Government Pleader would argue that there should be evidence that for three generations at least such hereditary trusteeship was adhered to for the Court to recognise hereditary trusteeship. I am of the considered view that when Section 6(11) of the Tamil Nadu Hindu Religious and Charitable Endowments Act itself does not contemplate as three generations formula, the Government Pleader cannot be heard to contend so. No doubt, in the precedent cited supra, there is reference to one other decision and the facts of which would refer to three generations, but as a rub of thumb, it cannot be adopted in all cases. What is highlighted in the said precedent is that there should be usage and adherence hereditarily relating to trusteeship and that alone can be taken as the ratio decidendi of that decision, but not the one that their trusteeship held as though for holding hereditary trusteeship, there should necessarily be evidence relating to hereditary trusteeship for three generations. However, I do not hold that in this case, there is no three generations of hereditary succession to those five officers, but what would hold is that such three generation formula is not a sine quo non to countenance hereditary trusteeship relating to an office. The other precedents referred to in the excerpt supra lends support to the case of the plaintiffs and not the defendants and it is quite obvious.
27. The perusal of the order of the Deputy Commissioner and the Commissioner would clearly expose as to how they fell into error in assuming as though for those five posts, the trustees are elected, but that is not the case at all as already discussed supra. Hence, in this view of the matter, I could see no infirmity in the decision rendered by the trial Court. However, the trial Court after upholding the hereditary trusteeship of the plaintiffs 1 to 5, should have ordered for a scheme to be formulated by the authorities under the H.R&C.E Act.
28. It is an admitted fact that O.A. No. 127 of 1975 filed by the plaintiffs herein before the Deputy Commissioner itself, was one under Section 64(1) of the Act for getting a scheme framed relating to that institution giving due recognition to the hereditary trusteeship of those five persons viz, the plaintiffs 1 to 5. However, in the prayer of the plaint, they sought for declaration and injunction restraining the authorities under the H.R&C.E Act from interfering with the affairs of the institution. Wherefore, the plaintiffs to that much extent, were not justified in praying for a blanket injunction absolutely as against the authorities under the H.R&C.E Act. Accordingly, to that much extent, the judgment and decree of the trial Court should be modified. The ultimate decree shall be as under:
The plaintiffs 1 to 5 are the hereditary trustees of the institution namely Madurai Velliambala Street Poorveega Mahajana Sangam. The authorities under the H.R&C.E Act shall frame a scheme under Section 64 of the act giving due recognition to the plaintiffs 1 to 5 as hereditary trustees.
28. In the result, this appeal is partly allowed to the aforesaid limited extent only. The parties shall bear their respective costs.