Full Judgment Text
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CASE NO.:
Appeal (civil) 5093 of 1998
PETITIONER:
Commissioner, Hindu Religious,and Charitable Endowment(Admn.), Madras & Anr.
RESPONDENT:
Vedantha Sthapna Sabha
DATE OF JUDGMENT: 07/05/2004
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT.
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
A Division Bench of the Madras High Court by the
impugned judgment held that the respondent was entitled
to hold office of trusteeship in Sri Lakshmi Hayavadhana
Perumal Temple in Nanganallur, Saidaret Taluk as
hereditary trustee. The Commissioner of Hindu Religious
and Charitable Endowment and the Deputy Commissioner,
the appellants herein question correctness of the
judgment.
Background facts giving rise to the present appeal
need to be noted in some detail.
Respondent-Sabha filed an application under Section
63(b) of the Tamil Nadu Hindu Religious and Charitable
Endowment Act, 1959 (in short ’Act’), before the Deputy
Commissioner (appellant no.2 in the present appeal) for
declaration that the Sabha is hereditary trustee of the
religious institution. The application was dismissed by
the Deputy Commissioner. Since the dismissal was upheld
by the Commissioner (the appellant no.1 herein) against
the rejection of the application, the respondent as
plaintiff filed a statutory suit OS No.257/1981 before
Subordinate Judge, Chengleput. Present appellants as
defendants took the stand that the suit temple is a
public temple constructed out of the collections
including collections from the members of the Sabha and
the grant of funds from the Government, that it is not
for the benefit of Sabha members only but for the
benefit of the Hindu public at large, and thus the
temple is one covered under Section 6(20) of the Act.
The Trial Court rejected the claim of the plaintiff by
holding that it is not entitled to be declared as
hereditary trustee of the suit temple. At the same time
since the Sabha had initiated and taken all efforts to
construct the temple and manage it in the interest of
general worshipping public, it would be appropriate to
have one or more of the representatives of the Sabha, in
the Board of Trustees as the authorities may deem fit.
Aggrieved by that the plaintiff preferred an appeal (AS
No. 240/84) which was also dismissed by a learned Single
Judge of the Madras High Court. The learned Judge also
highlighted the difference inherently inbuilt in the
definition of ’hereditary trustee’ in Section 6(11) and
’trustee’ in Section 6(22) of the Act. Letters Patent
Appeal was filed by the Sabha in L.P.A. No. 275/1995
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which was allowed and the judgment therein is the
subject matter of challenge in the present appeal. The
Division Bench in the High Court was of the view that
the founder being the Sabha, the entire administration
of the temple is vested in the Sabha only consisting of
its office bearers and they alone are entitled to
administer the temple and its properties.
Case of the plaintiff in a nutshell is as follows:
The Sabha itself was formulated for the purpose of
constructing a new temple for the benefit of the members
of the said Sabha and the Sabha was registered under the
Tamil Nadu Societies Registration Act, 1975 (in short
the ’Societies Act’). The objects of the Sabha are to
promote spiritual pursuits of Vashistadvaitha philosophy
as propounded by Sri Bhagavath Ramanuja and Sri Vedantha
Desika, to conduct discourses and arrange for lectures,
to conduct classes in Vadas, Upanishads, Divyaprabandas
and Stothrapathas relating to Vashishtadvaitha faith and
philosophy, to work for cordial relationship and
understanding among persons having different religions
and also among persons practising different religions to
make representations to Government and other leading
religious institutions in connection with any religious
issue of public importance, to secure representations on
committees appointed by Government and other bodies
relating to the objects of the Sabha, to construct own
and maintain temples and other places of worship,
Mantapams and the like to publish magazines, journals
and other literatures; to establish and maintain
libraries and reading rooms and to organise seminars,
group discussions and conferences and raise charities,
fund for the purpose of giving charities, etc. The
objects of the Sabha consist of both religious and
secular, its main object was to construct a temple for
the exclusive worship by its members. The land where
the institution in question is situated, was donated by
one P.S. Srinivasan of St. Thomas Mount. Its total
extent is 1-3/4 grounds. The said P.S. Srinivasan is
also an active member of the Sabha. The members of the
Sabha collected nearly Rs.2 lakhs and constructed the
institution in question. The Sabha has also received a
sum of Rs.25,000/- from the appellants as Government
grant. The construction was commenced in the year 1968
and completed in the year 1972. Kumbabishegam was
performed during 1972 from and out of the collection
made amongst the members of the Sabha. The institution
in question has no property of its own. The day-to-day
affairs of the institution are being looked after by the
Secretary of the Sabha, who is being elected by its
members from time to time. The members of the Sabha used
to donate liberally for the maintenance of the
institution. The institution has not received any
contribution from outsiders either for its construction
or for its day-to-day maintenance. It is the personal
property of the Sabha consisting of over 120 members.
Since the institution is the personal property of the
Sabha, the Sabha has every right to manage and maintain
the affairs of the institution as its founder-cum-
hereditary trustee. The Sabha is represented by its
Secretary. A petition was filed under Section 63(b) of
the Act before the 2nd appellant for a declaration that
the respondent is the hereditary trustee of the
institution. That application was dismissed by the 2nd
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appellant, in O.A. No.69 of 1977. The evidence let in
and the materials placed before the 2nd appellant have
been analysed and considered elaborately to arrive at
the finding that the temple has been constructed and is
maintained thereafter also from funds mobilised from
public and, therefore, it is meant for Hindu worshipping
public as well. As against such dismissal, the
respondent filed A.P. No. 174 of 1978 before the 1st
appellant under Section 69(1) of the Act, which was also
dismissed by the 1st appellant. The reasonings
contained in those orders which are adopted by the
appellants for coming to the conclusion that the
respondent cannot be the hereditary trustee are said to
be baseless. The Secretary of the Sabha elected
periodically, it is asserted, is entitled to hold the
office of trusteeship in respect of the temple in
question. The trusteeship accordingly is claimed to be
only a hereditary one. Hence the suit.
The suit was resisted by the appellants as
defendants. According to them, the suit temple is a
public temple constructed out of public collections
including from the members of the respondent Sabha who
are members of the public. The institution is for the
purpose of Hindu public at large. It is not relevant to
consider the objects of the Sabha. The suit temple is
not for the exclusive worship of the members of the
respondent only. It is a temple as defined in Section
6(20) of the Act. In any event, the suit temple has been
dedicated to public for the benefit of the public. The
public used this temple as of right. The site has also
been taken on lease. Government grant of Rs.25,000/- was
also sanctioned for the construction of the temple. All
expenses for the construction of the temple and for
Kumbabishegam and the day-to-day expenses thereafter are
met out of public contributions as well as receipts from
Hundial installed in the temple.
According to the appellants, the allegation of the
respondent that the temple does not own any property is
not correct. Public at large, other than the members of
the respondent Sabha, have contributed liberally for the
construction and for day-to-day expenses after the
Kumbahishegam. It is not the personal property of the
members of the Sabha. The respondent has no right to be
declared as the hereditary trustee. There is a Hundial
in the suit temple and the public contributes liberally
in it. The petition filed by the respondent under
Section 63(b) of the Act has been duly considered by the
2nd appellant and was rightly dismissed by him, which
was confirmed on appeal by the 1st appellant. The
reasonings in both the orders are not liable to be set
aside. The respondent Sabha was never the hereditary
trustee of the temple in question and it cannot hold the
hereditary trusteeship. The temple is a public temple
and not owned exclusively by the respondent. The
Secretary of the respondent Sabha has no right to be
appointed as its hereditary trustee and the office of
trusteeship cannot be claimed to be an hereditary one.
There is no cause of action to file the suit and the
cause of action claimed is false. There is a provision
in the bye-laws of the respondent Sabha that they can
wind up the Sabha, which clause in the bye-laws will
clearly show that the trusteeship is not at all
hereditary. "Hereditary trustee" has been defined under
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Section 6(11) of the Act as trustee of the religious
institution, 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. None of the
requirements of this provision is satisfied in the
present case and hence the suit was liable to be
dismissed with costs.
The Trial Court framed the following issues:
"1. Whether the order of the Ist
defendant is liable to be set aside?
2. To what relief?"
It dismissed the suit observing that taking into
consideration the efforts taken by the members of the
Sabha in constructing the temple by contributing and
also by collecting donations from the public at least
one of the members of the plaintiff-Sabha can be
appointed as trustee of the said temple. It is for the
defendants to decide as to which one or more of the
members of the Sabha can be appointed as trustee of the
said temple.
Aggrieved by the judgment and decree of the trial
Court, plaintiff (respondent No. 1 herein) preferred an
appeal before the High Court and learned Single Judge
dismissed the appeal holding that though the institution
was founded by the appellant-Sabha which is a body of
persons, it was from collections and contributions from
public also and that the same is meant for all Hindu
worshipping public, and that there was no acceptable
ground for declaring it as hereditary trustee. The
Division Bench of the High Court by the impugned
judgment held in view of the admitted position that
Sabha was founder of the Temple, the only other question
which needed to be answered was whether a body of
persons/society or office bearers of the Sabha can be
recognised as hereditary trustee or a trustee of the
temple. The aforesaid question was answered in the
affirmative with reference to the fact that the entire
administration of the temple vis-‘-vis of the Sabha
which consists of office bearers and members of the
Sabha/society alone are entitled to administer the
temple and properties which are also vested with them
either jointly as trustees or co-trustees. Setting aside
the judgment of the present appellant No.2 as confirmed
of the present appellant No.1, it was declared that the
respondent-plaintiff was entitled to hold office of
trusteeship as its hereditary trustee.
In support of the appeal, Mr. K. Ramamoorthy,
learned senior counsel submitted that the principles
governing the appointment of hereditary trustee were not
kept in view. Office of the hereditary trustee is in the
nature of property and where by efflux of time vacancy
arose there can be no succession and that the principle
of heredity will not arise. The common feature in
hereditary trusteeship is succession by hereditary right
or where the succession is regulated by usage or is
specifically provided for by the founder, as long as
such provision of scheme is in force. Undisputed
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position is that members of the public also contributed
for construction of the temple besides Government grant
and there being no details as to how much was
contributed by the founder and how much by the public it
was not permissible to hold that there was scope for the
Sabha being the hereditary trustee. The finding recorded
that money was collected for construction of the temple
and that it was a public temple was not disturbed.
Whether a corporate body or a group of persons can be
appointed as hereditary trustee is really of no
consequence in the factual background of the present
case, and that, therefore, the Division Bench was not
right in allowing the claim of the respondent, as prayed
for.
Clause (11) of Section 6 of the Act defining
"hereditary trustee" has three limbs. Sections 41 and
42 of the Societies Act have great relevance on the
question of hereditary trusteeship. Bye-law (23) also
throws considerable light on the controversy. There is
no question of any usage being pressed into service,
when the temple is constructed first. The society itself
was formed in 1967 and therefore the question of any
long usage being in existence does not arise.
In response, learned counsel for the respondent
submitted that merely because contributions had been
received from the public, that does not make
contributors co-founders. Unnecessary stress was laid by
learned Single Judge on the consequences of winding up
of the Sabha. The founder is known as a Sabha and the
management is with the Sabha’s members themselves. There
is no dispute about this aspect. There was also no
hindrance or interference by the public in the
management and administration of the temple. The length
of management commensurate from the time of its
construction is itself suggestive of long usage.
Trusteeship is linked with management and there being no
legal bar on a body becoming a trustee the Division
Bench was correct in holding that the Sabha was a
hereditary trustee. If one looks at Clause (22) of
Section 6, the Sabha as a whole is a trustee and with
reference to Clause (11) of Section 6 it can be said
that the Sabha is a hereditary trustee. The founders
automatically were vested with trusteeship. It is
nobody’s case that it was an elected body, and
therefore, the contributors and the Government cannot be
said to have status as its founders. Sabha is not a
corporate body but is a compendium of names. It is not
the case of the respondent that any particular member
was a trustee. It was the compendium which was the
trustee acting through its Secretary and, therefore,
rightly the Division Bench held that present respondent
No.1 was a hereditary trustee.
Section 6 of the Act which is the pivotal provision
so far as relevant reads as follows:
"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
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succession is in force.
6(20)-’temple’ means a place by whatever
designation known used as a place of
public religious worship, and dedicated
to, or for the benefit of, or used as of
right by, the Hindu community or of any
section thereof, as a place of public
religious worship.
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."
On consideration of the rival submissions, we feel
that the approach of the Division Bench of the High
Court was on erroneous premises and the conclusions
appear to have been arrived at overlooking certain vital
and basic underlying factors, the character of the
temple as well as operation and impact of the provisions
of the Act on the temple and the claims made in relation
thereto. The basic question that arose was not whether a
body of persons or society or office bearers of a Sabha
can be recognised as hereditary trustee or a trustee of
the temple. What was needed to be adjudicated was
whether on the facts as also the prevailing and
governing position of law, particularly the Act in
question, the claim for ’hereditary trustee’ was
established or could be sustained.
A bare reading of definition of "hereditary
trustee" brings into focus three important aspects; i.e.
first, a trustee of a religious institution the
succession to which is devolved by hereditary right; the
second category is that succession can be regulated by
usage and the third category is where succession
relating to the office of trustee is specifically
provided for by the founder and that too so long as the
scheme of such succession is in force. In contrast to
the criteria engrafted in Section 6(22), the definition
in Section 6(11) lays special and specific emphasis on
the succession to the office of trustee of a religious
institution devolving by anyone of the three methods or
manner envisaged therein. So far as the case on hand is
concerned, the statutory authorities specially
constituted under the Act have held the temple to be for
all the worshipping Hindu public and not confined to the
members of the Sabha only having regard to the manner in
which funds were collected and the manner in which the
public invitations and declarations have been made and
day-to-day administration of the temple is being carried
on from inception. Though there has been an application
for declaration of the office of trustee of the
religious institution to be an hereditary one, no
application under Section 63(a) for a declaration as to
whether the temple in question is a religious
institution used as a place of public religious worship
and dedicated to or for the benefit of or used as of
right by the Hindu community or section thereof was
filed. Even after, specific findings by the statutory
authorities as to the character of the institution
conspicuous omission in this regard disentitled the
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respondent-Sabha to incidentally or vaguely project that
it is for the members of the Sabha only. Once it is a
religious institution within the meaning of the Act, the
provisions of the Act have full force and effect and the
claim of the nature, unless substantiated as provided
for under the statute cannot be countenanced on certain
assertions made which was besides such statutory
provisions. This Court highlighted this aspect of the
matter in the decision reported in D. Srinivasan v.
Commissioner and Ors. (2000 (3) SCC 548).
The Act applies to all Hindu Public Religious
Institutions and Endowments. ’Religious Institution’,
as defined at the relevant point of time meant a math,
temple or specific endowment and ’temple’ meant a place
by whatever designation known, used as a place of public
religious worship and dedicated to or for the benefit of
or used as of right by the Hindu community or of any
section thereof, as a place of public religious worship.
’Trustee’ meant 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. In respect of a religious
institution, which has no hereditary trustee, the
competent authority concerned depending upon the class
of temple has been empowered under the provisions of the
Act to constitute also a Board of Trustees. ’Hereditary
trustee’ has been defined to mean, 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
such schemes of succession is in force. ’Non-hereditary
trustee’ has also been defined to mean a trustee who is
not a hereditary trustee. Consequently, the office of
trustee, hereditary or non-hereditary though may have an
incumbent who occupies or holds the office of
trusteeship at a particular point of time or for a
period of duration it is only the manner or method by
which the incumbent concerned comes to occupy it that it
is decisive of the nature and character of it as to
whether it is hereditary or non-hereditary.
Prior to the 1959 Act, The Madras Hindu Religious
and Charitable Endowments Act 1951, occupied the field
from 1.10.1951 and came to be replaced by the 1959 Act.
The scope of meaning of the terminology ’hereditary
trustee’ under the 1951 Act came up for consideration of
the Madras High Court as well as this Court. In ILR
1957 Mad. 1084=AIR 1957 Mad. 758 State of Madras v.
Ramakrishna Naidu, a Division Bench of the Madras High
Court had an occasion to exhaustively deal with the
position in the context of an ancient temple known as
Sri Parthasarathy Swami Temple, in Triplicame in Madras
city. The administration of the temple at the relevant
point of time was in accordance with a scheme framed by
the Madras High Court, which inter alia provided that
the management and affairs of the temple shall be
carried on by a body of dharmakartas under the
supervision and control of a Board of Supervision. The
dharmakartas were to be three in number, of whom one
shall be a Brahmin, one an Arya Vysia (Komatti) and one
a non-brahmin not Arya Vysia and the dharmakartas shall
hold office for a period of five years from the date of
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his appointment, the retiring dharmakartas being also
eligible for re-appointment, otherwise if so qualified.
The said dharmakartas shall be elected by person whose
names are included on the date of election in the list
of voters maintained at the temple, in terms of the
qualifications prescribed for being so enrolled as
voters and elaborate rules for the conduct of elections
have been also laid down in the scheme. When the period
of office of one of the dharmakartas by name Rao Bahadur
v. Ranganathan Chetty expired by efflux of time after
the commencement of the 1951 Act, though the vacancy had
to be under the scheme, filled up by election, the
Commissioner, Hindu Religious And Charitable Endowments,
passed an order in exercise of his powers under Section
39(i) of the 1951 Act, appointing one C. Subramaniam
Chetty as Trustee in the vacancy caused by the expiry of
the term of trustee of Sri V. Ranganathan Chetty. This
order came to be challenged in the High Court and a
learned Single Judge sustained the claim of challenge on
the ground that Sections 39 and 42 had no application,
as the trustees of the temple were hereditary trustees.
Those who challenged the appointment were not either the
outgoing trustee- V. Ranaganathan Chetty or his heirs or
successors but two thengalai worshippers interested in
the said temple. If the trustees of the temple are
hereditary trustees, Sections 39 and 42 had no
application and it is in that context the question that
was adverted to for consideration was \026 whether it is an
institution, which has a hereditary trustee or
hereditary trustees. After adverting to the definition
of ’hereditary trustee’ in Section 6(9) of the 1951 Act,
which defined the same to mean the trustee of a
religious institution, 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. The Division
Bench specifically noticed the fact that the claim of
those who challenged the order of Commissioner was on
the ground that the office of dharmakartas was a
’hereditary’ one and it was not on the basis that their
office devolved by succession or because succession to
their office has been specifically provided for by the
founder, but that the succession to the office "is
regulated by usage’, which found favour of acceptance
with the learned Single Judge. The stand taken for the
State before the Division Bench was that, the phrase
’regulated by usage’ must be read with the expression,
"succession to whose office" and when so read that part
of the definition would only apply where the ordinary
rules of succession under the Hindu Law are modified by
usage and succession has to be determined in accordance
with the modified rules. It was observed that though
several schemes framed took notice of the usage and
embodied it in the scheme framed with such modifications
as the court deemed fit, it cannot be said that the
succession continued to be governed by usage when as a
matter of fact it was governed by the provisions of the
scheme and not by usage any longer.
Proceeding further, the Division Bench construed
the scope and purport of the definition ’hereditary
trustee’, placing strong reliance upon the decision of
this Court reported in 1951 SCR 1125 (Angurbala Mullick
v. Debabrata Mullick) and AIR 1954 SC 606 (Sital Das v.
Sant Ram), and held therein as follows:
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"In the case of mutts whose heads are often
celibates and sometimes sanyasins, special
rules of succession obtain by custom and
usage. In Sital Das vs Sant Ram, the law is
taken as well-settled that succession to
mahantship of a mutt or religious institution
is regulated by custom or usage of the
particular institution except where the rule
of succession is laid down by the founder
himself who created the endowment. In that
case the custom in matters of succession to
mahantship was that the assembly of bairagis
and worshippers of the temple appointed the
successor; but the appointment had to be made
from the disciples of the deceased mahant if
he left any, and failing disciples, any one of
his spiritual kindred. Such a succession was
described as not hereditary in the sense that
on the death of an existing mahant, his chela
succeeds to the office as a matter of course,
because the successor acquires a right only by
appointment and the authority to appoint is
vested in the assembly of the bairagis and the
worshippers. In Sri Mahant Paramananda Das
Goswami vs Radhakrishna Das a Division Bench
took the view that where succession to the
mahantship is by nomination by the holder in
office, it is not a hereditary succession.
Venkatasubba Rao, J., as said:
"If the successor owes his title to
nomination or appointment, that is, his
succession depends on the volition of
the last incumbent and does not rest
upon independent title, I am inclined to
the view that the office cannot be said
to be hereditary."
Krishnan, J., the other learned Judge, came to
the same conclusion on the following
reasoning:
"Where succession is by nomination by
the holder in office of his successor it
seems to me impossible to contend that
it is a hereditary succession.
Hereditary succession is succession by
the heir to the deceased under the law,
the office must be transmitted to the
successor according to some definite
rules of descent which by their own
force designate the person to succeed.
There need be no blood relationship
between the deceased and his successor
but the right of the latter should not
depend upon the choice of any
individual".
The present definition in Section 6, clause
(9), would, however, comprise even such cases.
It appears to us to be singularly
inappropriate to say that there is a
succession of A’s office to another when on
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the efflux of the period for which A was
appointed there is a vacancy and B is elected
to that vacancy."
In AIR 1971 SC 2363 = 1970(1) SCC 4 (Sambudamurthi
Mudaliar vs. The State of Madras and another), this
Court had an occasion to construe Section 6 (9) and the
scope of the terminology ’hereditary trustee’ and held
as follows:
"3. The question to be considered in this
appeal is whether the appellant is a
hereditary trustee within the meaning of the
section. The definition includes the three
types of cases: (1) succession to the office
of trusteeship devolving by hereditary right;
(2) succession to such office being regulated
by usage; and (3) succession being
specifically provided for by the founder on
condition that the scheme of such succession
is still in force. It is not the case of the
appellant that the trustees of the temple of
the Kumaran Koil are hereditary trustees
because their office devolves by hereditary
right or because succession to that office is
specifically provided for by the founder. The
contention on behalf of the appellant is that
the succession is "regulated by usage". It
was said that according to the usage of the
temple the trustees were elected for a period
of one year each at a meeting of the members
of the Sengunatha Mudaliar Community and so
the appellant must be held to be a trustee
within the meaning of Section 6(9) of the Act
19 of 1951. In our opinion, there is no
warrant for this argument. The phrase
"regulated by usage" in Section 6 (9) of the
Act must be construed along with the phrase
"succession to this office" and when so
construed that part of the definition would
only apply where the ordinary rules of
succession under the Hindu Law are modified by
usage and succession has to be determined in
accordance with the modified rules. The word
"succession" in relation to property and
rights and interests in property generally
implies "Passing of an interest from one
person to another" (vide in Re. Hindu Women’s
Right to Property Act, 1937, (1941 FCR 12) =
(AIR 1941 FC 72). It is now well established
that the office of a hereditary trustee is in
the nature of property. This is so whether the
trustee has a beneficial interest of some sort
or not. (see Ganesh Chander Dhur v. Lal
Behari, 63 Ind App 448 = (AIR 1936 PC 318) and
Bhabatatini v. Ashalata, 70 Ind App 57 = (AIR
1943 PC 89). Ordinarily a shebaitship or the
office of dharamakarta is vested in the heirs
of the founder unless the founder has laid
down a special scheme of succession or except
when usage or custom to the contrary is proved
to exist. Mukherjea J., in Angurbala Mullick
v Debabrata Mullick, 1951 SCR 1125 = (AIR 1951
SC 293) delivering the judgment of this Court
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observed:
"Unless, therefore the founder
has disposed of the shebaitship in
any particular manner \026 and this
right of disposition is inherent in
the founder \026 or except when usage
or custom of a different nature is
proved to exist, shebaitship like
any other species of heritable
property follows the line of
inheritance from the founder."
In the case of mutts, whose heads are often
celibates and sometimes sanyasins, special
rules of succession obtain by custom and
usage. In Sital Das v. Sant Ram, AIR 1954 SC
606 the law was taken as well settled that
succession to mahantship of a mutt or
religious institution is regulated by custom
or usage of the particular institution except
where the rule of succession is laid down by
the founder himself who created the endowment.
In that case the custom in matters of
succession to mahantship was that the assembly
of bairagis and worshippers of the temple
appointed the successor; but the appointment
had to be made from the disciples of the
deceased mahant if he left any, and failing
disciples, any one of his spiritual kindred.
Such a succession was described as not
hereditary in the sense that on the death of
an existing mahant, his chela does not succeed
to the office as a matter of course, because
the successor acquires a right only by
appointment and the authority to appoint is
vested in the assembly of the bairagis and the
worshippers. In Sri Mahant Paramananda Das
Goswami v. Radha Krishna Das, 51 MLJ 258 =
(AIR 1926 Mad 1012), the Madras High Court
took the view that where succession to the
Mahantship is by nomination by the holder in
office, it is not a hereditary succession. In
that case Venkatasubba Rao, J., said:
"If the successor owes his title to
nomination or appointment, that is, his
succession depends on the volition of
the last incumbent and does not rest
upon independent title, I am inclined to
the view that the office cannot be said
to be hereditary."
Krishnan, J., stated as follows:
"Where succession is by nomination
by the holder in office of his successor
it seems to be impossible to contend
that it is a hereditary succession.
Hereditary succession is succession by
the heir to the deceased under the law,
the office must be transmitted to the
successor according to some definite
rules of descent which by their own
force designate the person to succeed.
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There need be no blood relationship
between the deceased and his successor
but the right of the latter should not
depend upon the choice of any
individual."
It is true that the artificial definition of
hereditary trustee in Section 6 (9) of the Act
would include even such cases.
4. But the election to the office of trustee
in the present case is for a fixed period of
one year and not for life. It is, therefore,
difficult to hold that the office of the
appellant is hereditary within the meaning of
Section 6 (9) of the Act. It is not possible
to say that there is a succession of A’s
office to another when on the efflux of the
period for which A was appointed, there is a
vacancy and B is elected to that vacancy. It
is quite possible that for that vacancy A
himself might be re-elected because a retiring
trustee is eligible for re-election. The
possibility of A being the successor of A
himself is not merely an anomaly, it is an
impossible legal position. No man can succeed
to his own office. In Black’s Law Dictionary
the word ’succession’ is defined as follows:
"The devolution of title to
property under the law of descent
and distribution.
The right by which one set of
men may, by succeeding another set,
acquire a property in all the goods,
movables, and other chattels of a
corporation.
The fact of the transmission of
the rights, estates, obligations,
and charges of a deceased person to
his heir or heirs."
The view we have taken is borne out by the
reasoning of the Madras High Court in State of
Madras v. Ramakrishna, ILR (1957) Mad 1084 =
(AIR 1957 Mad 758)."
Thus, it could be seen that even in S. Mudaliar’s
case (supra), the challenge was by a person who was
appointed only for one year and not for life and that
his claim before the Court, which fell for consideration
is not that he himself was a hereditary trustee but that
the trusteeship of the temple was ’hereditary’ in
nature. This Court also approved the ratio of the
decision of the Division Bench of the Madras High Court
in Ramakrishna Naidu’s case (supra). Consequently, the
distinction sought to be made of the decision of this
Court by a Division Bench of the Madras High Court which
decided the case in 1975(2) M.L.J. 178 - A.N. Ramaswamy
Iyer and Ors. v. The Commissioner H.R.& C.E. and
another, particularly para 11 is without any substance
or really any difference to so distinguish. The said
decision cannot be considered to lay down a correct
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proposition of law, in the teeth of the specific
declaration of the legal position made by this Court in
S. Mudaliar’s case (supra). As long as there is no
provision by any founder for devolution of the office of
trusteeship by succession hereditarily, in or by anyone
of the mode or method envisaged it is futile to claim
that the temple has hereditary trustee or that the
management or administration of the affairs of the
temple is carried on by a hereditary trustee or that the
respondent is entitled for a declaration that it is the
hereditary trustee of the temple in question. In this
case no such provision has shown or found to exist, and
as a matter of fact the learned Single Judge in the High
Court found such provision to be conspicuously absent.
In Dr. Srinivasan’s case (supra), this court
adverted to the definition of ’hereditary trustee’ under
Section 9 (6) of the Madras Hindu Religious Endowments
Act, 1926 (Act 2 of 1927) as also Section 6 (9) of the
1951 Act and Section 6 (11) of the 1959 Act and taking
note of the change brought about by the 1951 and 1959
Acts respectively, it was held that, after the
commencement of the 1951 Act itself the definition of
’hereditary trustee’ contained in Section 6 (9) therein
did not recognize a person who was nominated by other
trustees as hereditary trustees and that the same
position prevails under Section 6 (11) of the 1959 Act,
which also does not describe a person nominated by the
existing board to be called a hereditary trustee. It is
useful to refer to the observation made therein, as
hereunder:
"24. We, therefore, hold that if any trustee
has been nominated subsequent to the
commencement of the 1951 Act by the Board of
Trustees who were in office prior to the 1951
Act or by their nominees then such persons
could not be called "hereditary trustees"
within the meaning of sub-section (6) of
Section 9 of the 1951 Act. Similarly, if the
persons who were themselves not hereditary
trustees after the 1951 Act, either by
themselves or along with other hereditary
trustees after 1951, nominated trustees, then
such trustees would not be hereditary
trustees. The position is no different after
the 1959 Act.
26. This does not, however, mean that the
right conferred on the Board of Trustees,
whenever a vacancy occurs in the five places
created by Venkatarangaiah, is done away with
altogether by the 1951 Act or by the post-1951
Acts. It will be open to the nominated five
trustees in office, from time to time to
nominate fresh trustees whenever there is any
vacancy in these five offices of trustees.
Such persons can be trustees but cannot be
called "hereditary trustees". They will have
to be described as "non-hereditary trustees".
What their rights are will necessarily have to
be governed by the provisions of the statute.
We need not go into the question as to their
rights. Suffice to say that they are not
"hereditary trustees"."
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The authority to nominate or appoint or specify
periodically for a specified period even by a body which
had authority to do so would not make such office a
hereditary one so as to call such trustees ’hereditary
trustees’ as defined under the 1951 or 1959 Acts. It is
the definite rules of succession and devolution by any
one of the three modes of succession envisaged in
Section 6(11) that could alone enable a claim of
hereditary trustee to be legitimately made.
Having regard to the conclusions arrived at supra,
the submissions made on the basis of the finding
recorded that the Sabha was the founder of the temple in
question or that as founder it had every right to
provide for the administration of the affairs and
management of the temple and its property, if any, and
for future management as well, pales into insignificance
and really does not call for our decision to determine
the question as to whether the Sabha could get itself
declared as ‘Hereditary Trustee’ under the provisions of
the Act. Similarly, the question as to whether a body
could be a Trustee or constitute Board of Trustees also
is beside the point. Even, as a body \026 whether it could
claim to be a trustee or not, so far as in the case on
hand is concerned, it cannot, as held by us, claim to be
hereditary trustee.
No doubt, normally every donor contributing at the
time of foundation of a Trust cannot claim to become a
founder of the Trust, except in cases where all the
contributors of the Trust Fund become the founders of
the Trust itself inasmuch as a decision on the question
as to whether a person can be a joint founder, cannot be
made to rest merely upon the factum of contribution
alone unless the surrounding and attendant circumstances
proved in the case and subsequent conduct of parties
warrant such a finding. All these issues also seem to
be beside the real issue as to the hereditary nature of
the office claimed \026 which by no means could be
countenanced in law, in favour of the respondent-Sabha.
The analysis undertaken by learned Single Judge
seems to be correct. As noted above, Sabha itself came
into existence a few years before the declaration was
sought for by filing a suit by the present respondent.
The concept of long continuance and passage of time is
inbuilt in the expression ’usage’ and the factual
position also in the present case does not enable the
Sabha to establish application of the usage concept.
That being so, the judgment of Division Bench of the
High Court is set aside and that of the learned Single
Judge is restored. The appeal is allowed with no order
as to costs.