Madras High Court
R.V.S.Veeramani @ V.Mani vs The Additional Chief Secretary on 8 April, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.(MD) No.4042 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On 05.04.2022
Pronounced On 08.04.2022
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.(MD) No.4042 of 2020
and
W.M.P. (MD) Nos.3424, 3425 & 4250 of 2020
R.V.S.Veeramani @ V.Mani ... Petitioner
Vs.
1.The Additional Chief Secretary,
Tourism, Culture and Religious
Endowments (RE3-1) Department,
Secretariate, Chennai – 600 009.
2.The Commissioner,
H.R. and C.E. (Admn.) Department,
Chennai – 600 034.
3.The Joint Commissioner,
H.R. and C.E. (Admn.) Department,
Tiruchirappalli.
4.R.Varadarajan ... Respondents
Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorari, to call for the records relating to the
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W.P.(MD) No.4042 of 2020
proceedings of the first respondent made in G.O.(Permanent) No.56.
Tourism, Culture and Religious Endowments (RE3-1) Department, dated
19.02.2020 and the consequential proceedings of the third respondent
made in Na.Ka.No.8733/2018/Aa1/ dated 24.02.2020 and quash the
same.
For Petitioner : Mr.K.Govindarajan
For R1 to R3 : Mr.P.Subbara
Special Government Pleader
For R4 : Mr.G.Prabhu Rajadurai
ORDER
The petitioner has challenged the impugned G.O. (Ms) No.56, Tourism, Culture and Religious Endowments (RE3-1) Department, dated 19.02.2020 and the consequential proceedings of the thrid respondent in Na.Ka.No.8733/2018/Aa1, dated 24.02.2020.
2. By the impugned order dated 19.02.2020, the first respondent recognised both the petitioner and the fourth respondent as the Hereditary Trustee of Aulmigu Mariamman Temple, Manapparai Town, Trichy District.
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3. The facts relevant for the disposal of this case are that he petitioner is the son of fourth respondent's elder brother late R.Veersamay. The dispute in this present writ petition pertains to the office of the Hereditary Trustee of the aforesaid temple. The petitioner’s paternal grandfather and the fourth respondent’s father naemly, Rajagopal Naidu was the Hereditary Trustee. After the death of late Rajagopal Naidu, the petitioner’s father was appointed as a Hereditary Trustee in the year 1984
4. At that point of time, the fourth respondent was pursuing his avocation as a Teacher and therefore consented for appointment of the petitioner’s father, late R.Veerasamy as the Hereditary Trustee for the aforesaid temple.
5. Earlier, there was a proceeding between the petitioner’s father, late R.Veerasamy and the fourth respondent in R.P.No.205 of 2004. The said proceeding emanated from an order passed by the Joint Commissioner on 07.07.2004 in R.C.No.10421 of 2021 B4, whereby, the appointment of the petitioner’s father as a Hereditary Trustee was ______________ https://www.mhc.tn.gov.in/judis Page No 3 of 31 W.P.(MD) No.4042 of 2020 recognised. However, while recognising right of the petitioner’s father as a Hereditary Trustee, the second respondent Commissioner while disposing the Revision Petition filed by the fourth respondent under Section 21 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, held that there was no surrender to the office by any one due to the vacancy caused by demise of Rajagopal Naidu.
6. The second respondent Commissioner further held that the order passed in Pro.RC.No.15543 of 1984 A1, dated 13.11.1984 by the third respondent Deputy Commissioner, Hindu Religious and Charitable Endowments Department recording the succession of the petitioner’s father late R.Veerasamy also did not speak of the relinquishment of the rights of the other legal heirs. Hence, the right of the fourth respondent was held not extinguished, in view of the consent given by him in favour of the petitioner’s father R.Veerasamy.
7. The second respondent Commissioner also held that the right to hold office can only be in accordance with law of succession. The Commissioner also felt that unless it is a joint right and there was illegality in the order passed by the Joint Commissioner, Trichy, same ______________ https://www.mhc.tn.gov.in/judis Page No 4 of 31 W.P.(MD) No.4042 of 2020 cannot be intereferred and thus confirmed the order passed by the Joint Commissioner on 07.07.2004.
8. After the death of the petitioner’s father, late R.Veerasamy on 27.11.2010, proceedings were initiated before the Hindu Religious and Charitable Endowments Department under Section 54 of the Act both by the petitioner and the fourth respondent to recognise each of them as the Hereditary Trustee. These proceedings came to be disposed by the third respondent/Joint Commissioner by two separate orders, dated 24.04.2011.
9. The third respondent Joint Commissioner by two separate orders, dated 24.04.2011 in proceedings bearing reference nr.K.K.vz;. 17566/2010-1/M4> recognised the rights of the petitioner to succeed as the Hereditary Trustee of the said temple. By the second mentioned order, dated 24.04.2011, bearing reference e.f.vz;.17566/2010-2/M4> the application filed by the fourth respondent was rejected.
10. Aggrieved by the same, the fourth respondent filed A.P.Nos.7 and 8 of 2013 D2, before the second respondent Commissioner under ______________ https://www.mhc.tn.gov.in/judis Page No 5 of 31 W.P.(MD) No.4042 of 2020 Section 54 (4) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
11. By two separate orders in the respective appeals, the second respondent Commissioner held that if the fourth respondent has any rival claim against the petitioner herein, it is open to the fourth respondent to file application before the Joint Commissioner to recognise him as a Hereditary Trustee along with the petitioner. The second respondent Commissioner also held that the petitioner can seek remedy before the competent civil Court in the alternative. The relevant portion from the aforesaid order reads as under:
“3. I heard Thiru E.Ganesh, counsel for the petitioner and the M/s.J.Anandhavalli, counsel for the respondent and perused the relevant records. M.Rajagopal Naidu, father of the appellant herein was declared as hereditary trustee by the Sub-Court, Trichy in O.S.No.97/63 by the Judgment dated 08.09.1965. He died on 14.10.1984. After his demise his eldest son and brother of the appeallnat herein was recognized as Hereditary Trustee with the consent of all legal heirs including the appellant herein. R.Veerasamy died on 27.11.2020. In the permanent vacancy aroused due to the death of R.Veerasamy Naidu, his eldest son R.V.S.Mani is recgonised as Hereditary Trustee in the impugned order. The appellant contended that without considering his claim, the Joint Commissioner has ______________ https://www.mhc.tn.gov.in/judis Page No 6 of 31 W.P.(MD) No.4042 of 2020 recognized the succession of R.V.S.Veeramani, the fourth respondent herein. The fourth respondent has succeeded to the office of the Hereditary Trustee in the permanednt vacancies occurred due to the death of his father. Hence, the appellant has no locus standi to oppose the impugned order. If the petitioner has any rival claim against the fourth respondent, he can seek his remedy only through a competent civil Court otherwise it is open to the appellant to file fresh application before the Joint Commissioner to recognize his hereditary right along with the fourth respondent.
For the foregoing reasons stated above, the appeal petition is hereby dismissed as not maintainable.”
12. In A.P.No.8 of 2013 D2, the Commissioner remitted the case back to the Joint Commissioner to decide the claim of the fourth respondent within a period of thirty days from the date of receipt of copy of this order. The relevant portion from the aforesaid order reads as under:
“3. I heard Thriru E.Ganesh, counsel for the petitioner and perused the relevant records. The appellant's elder brother R.Veerasamy was recognized as Hereditary Trustee of the temples with the consent of the appellant and other legal heirs of Rajagopal Naidu. However, the right of the petitioner has not been extinguished in view of the consent given him in favour of his elder brother but the succession to the office shall be decided in accordance with Hindu Succession Act. The Joint Commissioner without consider the claim of the ______________ https://www.mhc.tn.gov.in/judis Page No 7 of 31 W.P.(MD) No.4042 of 2020 appellant as per the Hindu Succession Act rejected the claim of the appellant.
For the foregoing reasons, the order dated 24.04.2011 of the Joint Commissioner, Trichy is hereby set aside and the matter is remitted back to the Joint Commissioner for fresh disposal. The Joint Commissioner should decide the Appeallant's* claim in accordance with the Hindu Succession Act within a period 30 days from the date of receipt of this order. With the above direction, the appeal petition is allowed.” * the fourth respondent
13. In the remand proceedings, pursuant to an order, dated 28.02.2013 in A.P.No.8 of 2013 D2, the third respondent/Joint Commissioner once again rejected the request of the fourth respondent with the following observations:-
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Page No 8 of 31
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14. Aggrieved by the same, the petitioner once again filed A.P.No. 31 of 2013 D2 before the second respondent Commissioner. The second respodnent Commissioner after examining the case at length and after extracting the earlier orders, set aside the order dated 29.07.2013 of the ______________ https://www.mhc.tn.gov.in/judis Page No 9 of 31 W.P.(MD) No.4042 of 2020 third respondent Joint Commissioner vide order dated 18.08.2014 and remitted the case back to the third respondent Joint Commissioner to pass a fresh order with the following observations:
“Therefore, the impunged order suffers from infirmity as stated above and liable to be set aside. Accordingly, the order dated 29.07.2013 of the Joint Commissioner, Trichy is hereby set aside and the matter is remitted back to the Joint Commissioner, Trichy for fresh disposal. The Joint Commissioner, Trichy is directed to decide the claim of the appellant in accordance with the Hindu Succession Act, if the appeallant files an undertaking affidavit to withdraw the pending writ petition and O.S. filed by him. With the above direction the Appeal Petition is dipsosed of.”
15. The petitioner first attempted to challenge the aforesaid order before this Court in W.P.(MD)No.15107 of 2014. The said Writ Petition was however dismissed by this Court after the detailed consideration by asking the petitioner to file a Revision Petition under Section 114 of the Tamil Nadu Hindu Religious and Charitable Endowments Act.
16. A further appeal before the Division Bench in W.A.(MD)No. 1446 of 2015 was also dismissed, vide order dated 21.09.2017. Under ______________ https://www.mhc.tn.gov.in/judis Page No 10 of 31 W.P.(MD) No.4042 of 2020 these circumstances, the petitioner filed a Revision Petition under Section 114 of the Tamil Nadu Hindu Religious and Charitable Endowments Act before the first respondent, which is culminated in the impugned order.
17. The impugned order is challenged primarily on the ground that impugned order suffers from vices of violation of principles of natural justice inasmuch as the relief that has been granted in the impugned order was beyond the scope of the Revision Petition filed by the petitioner under Section 114 of the Tamil Nadu Hindu Religious and Charitable Endowments Act before the second respondent Commissioner.
18. It is submitted that the petitioner was aggrieved by the order remitting the case back to the third respondent Joint Commissioner for the third time by the second respondent Commissioner. Therefore, it was not open for the second respondent Commissioner to appoint both the petitioner and the fourth respondent as the Joint Hereditary Trustees of the aforesaid temple.
19. It is further submitted that the petitioner has been performing his duties as the Hereditary Trustee of the temple ever since on ______________ https://www.mhc.tn.gov.in/judis Page No 11 of 31 W.P.(MD) No.4042 of 2020 27.11.2010 after the death of his father late R.Veerasamy and in view of the same, there is no scope for the second person to be appointed as a Hereditary Trustee. In any event, it is submitted that it was incumbent on part of the second respondent Commissioner to have given a notice before appointing the fourth respondent as the second Hereditary Trustee and therefore, it is submitted that the impugned order is liable to be set aside and the case may be remitted back to the third respondent Joint Commissioner for a proper enquiry in terms of order, dated 18.08.2014 of the second respondent Commissioner in A.P.No.31 of 2013.
20. Opposing the prayer, the learned counsel for the fourth respondent submits that the fourth respondent had not given up his right of a Hereditary Trustee. It is submitted that in case there is a dispute or rival claim, the authorities under the Tamil Nadu Hindu Religious and Charitable Endowments Act have no powers to decide the same and the same has to be decided in a Civil Suit as was done when there was a power struggle between the fourth respondent and his brother, namely, the petitioner’s father, late R.Veerasamy. It is therefore submitted that when the petitioner’s father was recognised as a Hereditary Trustee, it was only with a consent. However, by consenting, the fourth respondent ______________ https://www.mhc.tn.gov.in/judis Page No 12 of 31 W.P.(MD) No.4042 of 2020 had not extinguished or relinquished his rights to succeed to the office as Hereditary Trustee.
21. The learned counsel for the fourth respondent submits that under Section 54 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 when the permanent vacancy occurs to the office of a Hereditary Trustee of a religious institution, the next in line of succession is entitled to succeed to the office. It is submitted that after the petitioner’s father, namely, R.Veerasamy passed away, a fresh cause of action arose and therefore, the fourth respondent would automatically have stepped into the shoes of his deceased brother (the father of the petitioner) as he is the next in line of succession to succeed to the office of the Hereditary Trustee.
22. Therefore, it is submitted that there is no merits in the contention of the petitioner and there is no irregularity in the impugned order of the first respondent. The learned counsel for the fourth respondent further submits that power under Section 114 of the Hindu Religious and Charitable Endowments Act, 1959 is wide and such powers can be exercised suo muto also. It is submitted that the powers ______________ https://www.mhc.tn.gov.in/judis Page No 13 of 31 W.P.(MD) No.4042 of 2020 vested with the Government includes the power to modify, annul, reverse or remit the case for reconsideration. Therefore, there is nothing irregular in the impugned order passed by the first respondent in appointing and recognising the fourth respondent as a Co-Hereditary Trustee. It is therefore submitted that the Writ Petition filed by the petitioner deserves to be dismissed.
23. The learned counsel for the fourth respondent further submits that in case of any dispute, option available to the Government under Section 54 (3) of the Hindu Religious and Charitable Endowments Act, 1959 is to either recognise both the petitioner and the fourth respondent as a Co-Hereditary Trustee or in the alternative, appoint a fit person to administer the aforesaid temple.
24. Heard the learned counsel for the petitioner, the learned Special Government Pleader for the first to third respondents and the learned counsel for the fourth respondent.
25. The facts are not in dispute. The petitioner's father Veerasamy till his death in 2010 was the Hereditary Trustee. The fourth respondent ______________ https://www.mhc.tn.gov.in/judis Page No 14 of 31 W.P.(MD) No.4042 of 2020 was a teacher and therefore did not come forward to take up the responsibility of the Hereditary Trustee. The fourth respondent consent to the appointment of his brother late Veerasamy as the Hereditary Trustee.
The fourth respondent has claimed the rights to succeed to the office of the Hereditary Trustee under Section 54(1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 after the death of his brother late Veerasamy (the father of the petitioner). The petitioner also claimed right under Section 54(1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959
26. The post of a Hereditary Trustee is both temporal and spiritual. Such a person is not only the manager of the religious institution but also double as the head pontiff.
27. 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 Tamil Nadu Hindu Religious & Charitable Endowments Act, 1959 reads as under:-
54. Filling up of vacancies in the offices of hereditary trustee.—(1) When a permanent vacancy ______________ https://www.mhc.tn.gov.in/judis Page No 15 of 31 W.P.(MD) No.4042 of 2020 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 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 ______________ https://www.mhc.tn.gov.in/judis Page No 16 of 31 W.P.(MD) No.4042 of 2020 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).
28. As per Section 54 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, when 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 said 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.
29. 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 occurs 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 ______________ https://www.mhc.tn.gov.in/judis Page No 17 of 31 W.P.(MD) No.4042 of 2020 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.
30. The right succeed is thus confined to the next in line of succession. Such person should have attribute to be appointed to such a post and it is an important post with responsibility.
31. When the petitioner's grandfather and the fourth respondent's father, namely, Rajagopal Naidu died in 1984, the eldest member of the family became entitled to succeed as the Hereditary Trustee. Thus, the younger son of deceased Rajagopal Naidu, namely, the fourth respondent automatically became disentitled to claim such rights.
32. The second respondent Commissioner in R.P.No.205 of 2004 against the order dated 07.07.2004 of the third respondent Joint ______________ https://www.mhc.tn.gov.in/judis Page No 18 of 31 W.P.(MD) No.4042 of 2020 Commissioner under Section 54(1) of the Act, by an order dated 09.09.2005 held that right of the fourth respondent to the office of the Hereditary Trustee was not extinguished in view of the consent given by him in favour of his elder brother, namely the petitioner's father. The right to hold the office of the Hereditary Trustee can only be in accordance with law of succession unless it is a joint right. The second respondent Commissioner also held that that if at all the fourth respondent intends to make a rival claim to hold the office as Joint Hereditary Trustee along with petitioner's father late R.Veerasamy, he may file a regular suit before the competent Civil Court having jurisdiction. It appears that a Civil Suit is also pending at the behest of the fourth respondent as is evident from a reading of the order dated 18.08.2014 of the second respondent Commissioner in A.P.No.31 of 2013.
33. The Andhra High Court, while dealing with the somewhat similar circumstances, in Ghadiyaram Seshayya Vs. Chintalapati Seetharamamma and others, 1948 SCC OnLine Mad 279 : AIR 1949 Mad 839, in Paragraph No.3, held that if strict hereditary right is to be applied to the succession to this portion of the inam so divided, there can ______________ https://www.mhc.tn.gov.in/judis Page No 19 of 31 W.P.(MD) No.4042 of 2020 be no doubt that Venkatappayya's daughter is a nearer heir than his divided brothers and that from this point of view, dismissal of the suit cannot be held to be incorrect. The Court, in Paragraph No.6, held that if the next in the line of succession happens to be a woman, for instance, and if a daughter has to be preferred to a divided brother, she certainly is entitled to the office and can perform it by proxy. It thus held that no suit on the basis of any partition of a religious service inam will lie subsequent to Section 58 of the Madras Hindu Religious Endowments Act.
34. The said provision is similar to Section 63 of the Tamil Nadu Hindu Religious and Charitable Endowments Act. 1959. The reasoning of the Court appears to be the next in line of succession which would mean the legal heir of the deceased person. If the above ratio is applied, the next in line of succession of the deceased Hereditary Trustee R.Veerasamy would be the petitioner and not the paternal grand uncle of the petitioner, namely, the fourth respondent R.Varadharajan. However, the facts indicate that though the fourth respondent had given consent to his brother to be appointed as the Hereditary Trustee, he had not relinquished his rights to succeed. The second respondent ______________ https://www.mhc.tn.gov.in/judis Page No 20 of 31 W.P.(MD) No.4042 of 2020 Commissioner, in the successive remand, has held that rights of the fourth respondent had not been extinguished. The fact remains that once a Hereditary Trustee is appointed, on his death only, the person who is next in line of succession will be entitled to succeed. However, this is a matter to be decided by a Civil Courts and this issue cannot be decided by the third respondent Joint Commissioner or the second respondent Commissioner.
35. In V.S.Thiagaraja Mudaliar Vs. Bava C.Chokkappa Mudaliar and others, (1974) 2 SCC 58, proceedings came to be initiated under Section 84 of the Madras Hindu Religious Endowments Act, 1926, where, the two families held the office of the trusteeship by hereditary succession. Prior to 1943, the hereditary trustee representing the Bava family was one Vaithilinga Mudaliar and the other trustee representing the Vadapathimangalam family was Thiagaraja Mudaliar.
36. A dispute arose as to who could succeed to the office of Hereditary Trustee in the Bava family after Vaithilinga's death. Vaithilinga died in 1943 leaving behind him surviving (1) his widow Pappu Ammal, (2) a daughter, Shivakami Ammal by another wife, (3) a ______________ https://www.mhc.tn.gov.in/judis Page No 21 of 31 W.P.(MD) No.4042 of 2020 son of this daughter named Brahadeeswaran, (4) and (5) two divided brothers Gopalaswami Mudaliar and Panchapakesa Mudaliar.
37. The office of the Hereditary Trustee of the temple was an office of prestige. After Vaithilinga's death, Gopalaswami Mudaliar the half brother of Vaithilinga tried to instal himself as the Hereditary Trustee in the place of his deceased brother. However, Thiagaraja Mudaliar, the other trustee representing the Vadapathimangalam family, did not permit him to work with him as a Co-Hereditary Trustee.
38. Thus, an application came to be filed before the Board under Section 84 of the Madras Hindu Religious Endowments Act, 1926. Section 84 of the Madras Hindu Religious Endowments Act, 1926 reads as under:-
“84. (1) If any dispute arises as to—
(a) whether an institution is a math or temple as defined in this Act,
(b) whether a trustee is a hereditary trustee as defined in this Act or not, or
(c) whether any property or money endowed is a specific endowment as defined in this Act or not, such dispute shall be decided by the Board and no Court in the exercise of its original ______________ https://www.mhc.tn.gov.in/judis Page No 22 of 31 W.P.(MD) No.4042 of 2020 jurisdiction shall take cognizance of any such dispute.
(2) Any person affected by a decision under sub-
section (1) may, within six months, apply to the Court to modify or set aside such decision; (3) From every order of a District Judge, on an application under subsection (2) an appeal shall lie to the High Court within three months from the date of the order;
(4) Subject to the result of an application under sub- section (2) or of an appeal under sub-section (3), the decision of the Board shall be final.”
39. Sub-section (1) referred to 3 kinds of disputes which only the Board has jurisdiction to decide. The Hon'ble Supreme Court held that the Board was constituted by the State Government under Section 10 of the Act. The jurisdiction of the Civil Court to entertain in respect of the three disputes was excluded. Sub-section (2) gave a person affected by the decision of the Board to apply to the Court to modify or set aside such a decision. Sub-section (3) provided for an appeal to the High Court from every order of the District Judge on an application under sub- section (2). Sub-section (4) provides that the decision of the Board is final subject to the result of the application under sub-sections (2) and (3).
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40. The Board, on evidence produced before it, held that Gopalaswami Mudaliar being the eldest male member in the family was entitled to succeed to the Hereditary Trusteeship to the exclusion of Pappu Ammal, i.e. the wife of deceased Hereditary Trustee Vaithilinga.
41. Aggrieved by the said order of the Board, O.P.No.27 of 1948 was filed before District Court, East Tanjore under Section 84 (2) of the Madras Hindu Religious Endowments Act, 1926. It was contended that the order of the Board was without jurisdiction since under Section 84(1)
(b) of the Act, the Board had jurisdiction only to determine the nature of the office as to whether it was hereditary or not, but it had no jurisdiction to decide the individual claims to hereditary trusteeship. The District Court after considering the issue, held as under:-
“For the above reasons I agree with the contentions of the petitioner (Thiagaraja Mudaliar) and hold that the Religious Endowments Board had no right to decide a dispute regarding succession to a hereditary trusteeship. I therefore, set aside OA No. 279 of 1946 (of the Board) dated September 24, 1947 and allow the petition with costs.” ______________ https://www.mhc.tn.gov.in/judis Page No 24 of 31 W.P.(MD) No.4042 of 2020
42. On further appeal before the High Court, the High Court held that the Board was entitled to decide the dispute and remanded the case to the District Judge as the District Judge had not dealt with the case on merits. In the remand proceedings, the District Judge, by an order dated 24.12.1956, once again held that Gopalaswami Mudaliar the half brother of the deceased Hereditary Trustee Vaithilinga was not entitled to the trusteeship and since the Pappu Ammal the wife of the deceased Hereditary Trustee Vaithilinga had relinquished her claim, the persons properly entitled to the office were their daughter Shivakami Ammal and their son Brahadeeswaran.
43. Thus the order of the Board in O.A.No. 279 of 46 declaring Gopalaswami as the Hereditary Trustee in succession to Vaithilinga Mudaliar was set aside by the District Judge.
44. The High Court, in the second round, once again reversed the finding of the District Judge and confirmed the finding of the Board that Gopalaswami Mudaliar the half brother of the deceased Hereditary Trustee Vaithilinga was entitled to succeed as the hereditary trustee. The Court observed:
______________ https://www.mhc.tn.gov.in/judis Page No 25 of 31 W.P.(MD) No.4042 of 2020 “In this appeal we are concerned only with the question whether the order of the Hindu Religious Endowment Board declaring the right of Bava Gopalaswami with regard to the Ulthurai kattalai was well-founded or not. We are of the opinion that the said order of the Endowment Board in OA No. 279 of 1946 dated September 24, 1947 is correct and that no grounds have been made out for setting it aside.”
45. On appeal, the Hon'ble Supreme Court held that the Board was not entitled under Section 84 of the Act to entertain the dispute and, therefore, the District Judge was right in his view taken by him on 04.03.1948 that the Board had no jurisdiction to decide the individual claims to Hereditary Trusteeship.
46. That finding was reversed by the High Court on 28.11.1950 and since the appeal had not been finally decided, there was no question of an appeal to the Hon'ble Supreme Court. It was further observed that “As the question was one of jurisdiction which went to the root of the matter, perhaps, special leave to appeal might have been granted if one were filed. But it does not appear that this course was taken”. Therefore, the Hon'ble Supreme Court considered the question of jurisdiction and ______________ https://www.mhc.tn.gov.in/judis Page No 26 of 31 W.P.(MD) No.4042 of 2020 observed its regret that many years were merely wasted in litigation. The Hon'ble Supreme Court ultimately held as under:-
18. While it may well be that the Board before exercising its jurisdiction to determine the character of the trusteeship — hereditary or other — may have to decide tentatively whether the petitioner is a stranger without any locus standi or the heir to the last trustee, in this case even that provisional finding on a collateral fact is uncalled for since the issue it had to decide — hereditary trusteeship — was admitted by both sides.
We make it clear that after having got the entire proceedings dismissed as without jurisdiction on the ground that no dispute regarding the hereditary nature of the trusteeship at all arose it is not open to the contestant Thiagaraja Mudaliar to resile from that stand in other proceedings. It is also obvious that our judgment is based on the Act as it was and cannot preclude action, if available, under any new or other enactment.
19. It follows, therefore, that the Board had no jurisdiction to decide the dispute of succession. The jurisdiction was with the ordinary civil courts of the land. Consequently, the decision of the High Court in A. S. No. 88 of 1958 dated March 23, 1961 has to be set aside, and the order passed by the District Judge of East Tanjore in O.P. No. 27 of 1948 dated September 4, 1948 restored. Having regard to the course this litigation has taken, the proper order as to costs, in our opinion, would be to direct that the parties shall bear their own costs throughout.
47. If the office of the Hereditary Trustee is vested with only one person from the family, the next in line of succession was entitled to ______________ https://www.mhc.tn.gov.in/judis Page No 27 of 31 W.P.(MD) No.4042 of 2020 succeed and not the person who had chance to succeed earlier. The order of the respondent holding that the fourth respondent can be made as Co- Herediary cannot be said to be beyond the scope of the appeal / petition filed by the petitioner challenging the order of the second respondent Commissioner.
48. Thus, a reading of the above Judgment makes it clear that the third respondent Joint Commissioner has no power to decide the inter se dispute as to who is the succeed to the office of the Hereditary Trustee. If there are rival claims to the office of the Hereditary Trustee, it is for the authorities either to ask the parties to move Civil Court to have their rights decided and declared or appoint a fit person or allow both the parties to function as Co-Hereditary Trustees. In the present case, there is no allegation of mismanagement. Therefore, there is no necessity to appoint a fit person.
49. Power under Section 114 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 is wide. It cannot be said that the said power was exercised incorrectly by the first respondent Additional Chief Secretary.
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50. Both the petitioner and the fourth respondent have a fair chance to succeed to the office of the Hereditary Trustee. On the demise of the petitioner's father and the fourth respondent's elder brother, the dispute between the petitioner and the fourth respondent is required to be resolved in the manner in which the issue was resolved on an earlier occasion, i.e. by filing a Civil Suit. Therefore, I do not find any reasons to interfere with the impugned order of the first respondent.
51. Under these circumstances, the order of the first respondent Additional Chief Secretary rejecting the Revision Petition filed by petitioner does not call for interference. Therefore, the impugned order passed by the first respondent Additional Chief Secretary in the Revision Petition filed by the petitioner against the order of the second respondent Commissioner deserves to be upheld.
52. This Writ Petition thus stands dismissed. No cost. Consequently, Miscellaneous Petitions are closed.
08.04.2022 Internet : Yes/No Index : Yes / No jen / sn ______________ https://www.mhc.tn.gov.in/judis Page No 29 of 31 W.P.(MD) No.4042 of 2020 To
1.The Additional Chief Secretary, Tourism, Culture and Religious Endowments (RE3-1) Department, Secretariate, Chennai – 600 009.
2.The Commissioner, H.R. and C.E. (Admn.) Department, Chennai – 600 034.
3.The Joint Commissioner, H.R. and C.E. (Admn.) Department, Tiruchirappalli.
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jen / sn Pre-Delivery Order made in W.P.(MD) No.4042 of 2020 and W.M.P. (MD) Nos.3424, 3425 & 4250 of 2020 08.04.2022 ______________ https://www.mhc.tn.gov.in/judis Page No 31 of 31