K.Damodaran v. The Commissioner,H.R.&C.E. Administration,Madras-600034

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:14.8.2009CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE S.TAMILVANANWrit Appeal No.1698 of 1999K.Damodaran… AppellantVs.1.The Commissioner,H.R.&C.E. Administration,Madras-600034.2.K.Kothandaraman… Respondents* * *Writ Appeal preferred under Clause 15 of the Letters Patent asagainst the order of the learned single Judge of this Court dated22.12.1998 made in W.P.No.13280 of 1990.For appellant: Mr.V.RaghavachariFor R.1 : Mr.T.Chandrasekaran, Govt.Advocate for HR&CEJUDGMENTELIPE DHARMA RAO, J.The challenge in this Writ Appeal is to the order passed by alearned single Judge of this Court dated 22.12.1998 made inW.P.No.13280 of 1990, whereby the learned single Judge has affirmedthe order of appointment of an Executive Officer to the ArulmighuThirunarayanaswamy Thirukoil, Pudupettai, Thirupattur, by the firstrespondent.2. The case of the appellant is that ArulmighuThirunarayanaswamy Thirukoil, Pudupettai, Thirupattur is a privatetemple and his father Kanniappa Chettiar was the Managing Trustee ofthe temple. Originally, one Kanniappa Chettiar, who was theappellant’s father’s paternal grand father’s elder brother, alongwith one Muniappa Chettiar, who is also related to the said KanniappaChettiar have purchased a site at Pudupet on 19.8.1985 and built aplace of worship, wherein Thiru Narayanaswami was worshipped by‘bhajan’ and it was known as ‘Thiru Narayanaswami Bhajanai Koil’ andthe same seems to have ruined, but rebuilt later, on a large scale,by the paternal grand father of the appellant on 5.12.1918 and alsoperformed ‘Kumbabhishekam’ on 11.7.1921. It is seen from the recordsthat the paternal grand father of the appellant and one T.M.MurugappaChettiar purchased some properties on 17.7.1927, 9.3.1936 and21.3.1939 and endowed them to the temple. https://hcservices.ecourts.gov.in/hcservices/

3. On 19.10.1945, the paternal grand father of the appellant andhis three paternal uncles by name Muniswami Chettiar, Ramu Chettiarand Chandrasekara Chettiar along with one Murugappa Chettiar, who isnone other than their brother-in-law, have executed a settlement deedin favour of the institution and thus the above said institution isclaimed to be the family property of the appellant’s paternal grandfather and his paternal uncles and according to the appellant, thirdparties have no right to manage or perform any 'Utsavam' or 'Bhajan'without the permission of the above said families. Pursuant to theabove said settlement deed dated 19.10.1945, the grand father of theappellant was appointed as the Managing Trustee and the trusteeshipwas to devolve on their legal heirs by rule of heredity. It is saidthat on the death of the junior most paternal uncle of the father ofthe appellant, the father of the appellant became the ManagingTrustee in terms of the Settlement Deed dated 19.10.1945. When theArea Committee of the Hindu Religious and Charitable Endowments Boardincluded this institution as a place of public worship and called forapplications for appointment as Trustees, the father of the appellantfiled an application before the Deputy Commissioner, Hindu Religiousand Charitable Endowments Board, Madras, in O.A.No.35 of 1963 prayingto declare them as the hereditary trustees and that the institutionwas a place of private worship and the prayer in this application waslater on amended to declare that the institution was governed by theprinciple of hereditary trusteeship alone. Since the said applicationwas dismissed by the Deputy Commissioner on 10.5.1971, an appeal wasfiled before the Commissioner and the Commissioner also dismissed theappeal on 21.2.1972. Therefore, aggrieved, the father of theappellant had filed a suit in O.S.No.77 of 1972 on the file of theSub Court, Thirupattur and since the said suit was dismissed, anappeal in A.S.No.122 of 1973 was filed before this Court.4. A learned single Judge of this Court has allowed the saidappeal by the judgment dated 16.12.1977. The observations andfindings recorded by the learned single Judge in the said A.S.No.122of 1973, since will have a bearing on the matter on hand, areextracted hereunder:“In the present case, there is no evidence to show that theprovisions of Section 47(2) have any manner of application.In these circumstances, the Deputy Commissioner had nojurisdiction to appoint any non-hereditary trustee for thepurpose of managing the affairs of the temple. In thisview, the plaintiff (P.Kanniappa Chettiar-the father of thepresent appellant) would be entitled to succeed on thebasis that he and the second defendant (T.M.MurugappaChettiar) should be declared to be hereditary trustees ofthe suit temple. However, in view of the fact that thesecond defendant has stated in his written statement thathe does not want to be a trustee because of his age and inview of the fact that the same stand has been taken before,the plaintiff would alone have to be declared to be thehereditary trustee in the present case. But, though thesecond defendant has disclaimed the right to thetrusteeship, the trusteeship would have to devolve on theother members of the respective families as set out in https://hcservices.ecourts.gov.in/hcservices/ Ex.A.5 including that of the second defendant. Thecircumstances of the present case go to show that thereseems to be a rift between the plaintiff and the seconddefendant and others. In order to see that the institutionis managed properly, I think it is necessary to state thatthe appropriate authority under Tamil Nadu Act 22 of 1959will take steps for the purpose of framing a scheme for thetemple so that the management is regulated in anappropriate manner."This finding of the learned single Judge has attained finality, sincewas not challenged by anybody. 5. While so, by the impugned order dated 9.7.1990, an ExecutiveOfficer was appointed to Arulmighu Thirunarayanaswamy Thirukkoil,Pudupettai, Thirupattur Taluk by the first respondent. Challengingthe same, W.P.No.13280 of 1990 was filed by the appellant K.Damodaranalong with his brother K.Sridharan, to quash the order dated 9.7.1990passed by the first respondent, appointing the Executive Officer.During the pendency of the writ petition, the Executive Officer hadalso filed a petition to implead him as a party to the writ petition,but that petition was dismissed. By W.M.P.No.3297 of 1998, one of thelegal heirs i.e. the son of one Kandasamy prayed for impleading himas a party-respondent to the writ petition and the said petitionhaving been allowed, the second respondent herein by nameK.Kothandaram was brought on record.6. On the part of the writ petitioners it has been maintainedthat no enquiry, as contemplated under Section 45 of the Tamil NaduHindu Religious and Charitable Endowments Act, 1959, was conducted bythe Commissioner before passing the impugned order of appointment ofthe Executive Officer and thus, his action is in excess of hisjurisdiction vested under the Act. They have further submitted thatsince being a hereditary trust and a private temple, on the death oftheir father Kanniappa Chettiar on 1.7.1990, the appellant hassucceeded as the Managing Trustee of the Trust.7. This argument advanced on the part of the petitioners wasrefuted by the first respondent/Department by contending that thefather of the appellant Mr.Kanniappa Chettiar has informed theDepartment, by his letter dated 9.2.1990, that due to old age, he wasnot in a position to manage the administration of the temple propertyand requested the Department to take over the management of thetemple by appointing an Executive Officer. According to theDepartment, based on the said letter of the father of the appellant,the Department has processed the papers and an Executive officer wasappointed by the impugned proceedings dated 9.7.1990 and theCommissioner was not aware of the death of the father of theappellant Mr.Kanniappa Chettiar on 1.7.1990 since nobody hasfurnished them the information about the death of Mr.KanniappaChettiar. It is also stated that the writ petitioners (including theappellant herein) have not requested the Department to recognize themas hereditary trustees of the temple, nor did they inform thedepartment of their assumption of charge as hereditary trustees ofthe temple. It is also stated that the hereditary trustee was notmaintaining the accounts and necessary registers and by theappointment of the Executive Officer, the hereditary trusteeship https://hcservices.ecourts.gov.in/hcservices/ would not be eliminated and the Executive Officer should functionalong with the hereditary trustees and there are possibilities of thewrit petitioners mismanaging the affairs of the temple and by theappointment of the Executive Officer, the position of the hereditarytrustees would not be affected and the Executive Officer wouldfunction in addition to the hereditary trustees. 8. During the pendency of this writ petition, the secondrespondent herein by name P.Kothandaram has filed another writpetition in W.P.No.12142 of 1997 before this Court, as against theDepartment and some others, including the appellant herein and hisbrother K.Sridharan, praying for a Writ of Mandamus, to direct theDepartment to constitute a trust board in respect of Arulmigu ThiruNarayanaswami Temple, Pudupet village, Tirupattur Taluk and appointan Executive Officer, pursuant to the Scheme framed by the Departmenton 20.11.1990 in O.A.No.243 of 1987. 9. This writ petition has been disposed of at the stage ofadmission itself, without any notice to the other private partiesimpleaded as respondents 3 to 6 in the writ petition, including theappellant and his brother K.Sridharan. The learned single Judge ofthis Court, while disposing of the above said writ petition, hasdirected the Department to take appropriate action under theprovisions of the Hindu Religious and Charitable Endowments Act andthe Rules framed thereunder for constituting the Board of trustees aswell as appointing an Executive Officer, if so warranted, under theprovisions of the Hindu Religious and Charitable Endowments Act andin terms of the Scheme already framed by the Deputy Commissioner,Hindu Religious and Charitable Endowment, Salem in O.A.No.243 of1987, within a period of three months. This order also attainedfinality, since not challenged. 10. Thereupon, while passing orders in the present writ petitionNo.13280 of 1990, the learned single Judge, has affirmed the actiontaken on the part of the Department in appointing the ExecutiveOfficer to the temple, pursuant to the letter addressed by thedeceased father of the appellant. Further, in view of the aboveorder passed by the learned single Judge in W.P.No.12142 of 1997, ithas been observed that the management of the temple in questionshould be carried on only in the light of and in accordance with thedirection issued in W.P.No.12142 of 1997. This order passed by thelearned single Judge in W.P.No.13280 of 1990, dated 22.12.1998 isunder challenge in this writ appeal.11. The sole contention on the part of the Department, indefence of their action of appointing an Executive Officer, is thatonly based on the letter addressed by the father of the appellant byname Kanniappa Chettiar to the Department, dated 9.2.1990, statingthat due to old age he is unable to manage the administration of thetemple property and requesting to appoint an Executive Officer, theDepartment has processed the papers and by the order dated 9.7.1990,an Executive Officer has been appointed and the death of the saidKanniappa Chettiar, in the meantime, on 1.7.1990, has not beenbrought to their notice. https://hcservices.ecourts.gov.in/hcservices/

12. The straight case of the appellant is that the temple beinga private temple, the rule of heredity would only apply andaccordingly on the death of his father, he succeeded to the office ofthe Managing Trustee.13. In this backdrop, a legal question would arise as to whetherthe Department is justified in acting on the alleged letter dated9.2.1990 addressed by the appellant’s father, to appoint theExecutive Officer.14. A similar question was already considered in the same matterby this Court in A.S.No.122 of 1973, dated 16.12.1977. When anotherTrustee, the second defendant therein viz. T.M.Murugappa Chettiar hasexpressed his inability to continue as a trustee because of his oldage, it was held in the above said A.S.No.122 of 1973, dated16.12.1977, that the trusteeship would have to devolve on the othermembers of the respective families as set out in the settlement deeddated 19.10.1945, which rules the roost, so far as the affairs of theTrust in question are concerned. 15. As could be seen from the records, in para No.6 of the saidsettlement deed dated 19.10.1945, it is stated that the above saidtemple belonged only to the families of the authors of the saidsettlement deed and in paragraph No.7 it is stated that theappellant’s paternal grand father was the Managing Trustee and thathe would be the Managing Trustee during his lifetime and that if hedid not want to continue as a Trustee or if the trusteeship fallsvacant on account of any other person, then, all the other originalfive persons or the survivors of them would have to meet and selectone amongst the members of the families who had devotion and theinterest in the management of the said temple. It has also beencategorically held in the said judgment that the trust in question isa hereditary trustee. 16. The observations and findings of this Court in A.S.No.122 of1973, dated 16.12.1977 having become final, now there is no disputeregarding the fact that the temple is purely a private temple and thetrusteeship is by hereditary. Even if it is true that the father ofthe appellant had addressed a letter to the HR & CE Department thathe is not willing to continue as the Trustee and requested the HR &CE Department to take over the temple, the same, itself, cannot bethe basis for appointment of the Executive Officer by theCommissioner, since clause No.7 of the Settlement Deed dated19.10.1945 executed between the Trustees of the temple, hasprescribed a procedure to be followed in such event. In clause No.7of the settlement deed it has been clearly mentioned that the grandfather of the appellant to be the managing trustee and that he wouldbe the managing trustee during his lifetime and that if he did notwant to continue as a Trustee or if the trusteeship become vacant onaccount of any other person, then, all the other original fivepersons or the survivors of them would have to meet and select oneamongst the members of the families who had devotion and the interestin the management of the said time. Subsequent to the grand fatherof the appellant, by the rule of succession and hereditary ship, thefather of the appellant became the Managing Trustee and the samecondition as in Paragraph 7 of the settlement deed dated 19.10.1945 https://hcservices.ecourts.gov.in/hcservices/ would apply even to his case. Therefore, even if the father of theappellant was not willing to continue as the Managing Trustee, allthe original persons or their survivors have to meet and select oneamongst the members of the families who had devotion and the interestin the management of the said temple. Strangely, the Department hasnot produced the said letter alleged to have been executed by thefather of the appellant and therefore, the very execution of theletter by the father of the appellant is under suspicion, since notproved or established by the Department. Even assuming, withoutadmitting that the father of the appellant has addressed the saidletter dated 9.2.1990, by the alleged letter dated 9.2.1990, thefather of the appellant cannot forsake the interest of all otherpersons who are his successors-in-interest by the rule of heredity.Therefore, the appointment of the Executive Officer by theCommissioner, only taking into consideration the alleged letteraddressed by the father of the appellant, without heeding to theterms and conditions incorporated in the original settlement deeddated 10.10.1945, shall be declared as non-est in law, in view of theearlier findings already arrived at regarding the Trust in variousproceedings, unequivocally declaring the same as a hereditary trustand that the institution is governed by the hereditary principle.Therefore, the findings rendered by the learned single Judge in thesewrit proceedings, holding that the Commissioner is right inappointing the Executive Officer, just based on the alleged letteraddressed by Kaniappa Chettiar, cannot sustain and the same need tobe reversed.17. The learned counsel for the appellant has also pressed intoservice many judgments to impress upon the proposition that beforeappointing the Executive Officer under Section 45(1) of the T.N.HinduReligious and Charitable Endowments Act regarding a temple managed byhereditary trustee, notice should be issued to the hereditary trusteeto show cause against appointment, vide COMMISSIONER, HR & CE vs.K.JOTHIRAMALINGAM [AIR 1985 MADRAS 341]. He has also pressed intoservice the judgments for the proposition that law of successionapplies to office of hereditary trustee also and hereditary trusteesucceeds to office as of right and in accordance with rules governingsuccession vide CHETTIMAI C.NANJAPPA CHETTIAR vs. S.N.KUPPUSWAMICHETTIAR AND OTHERS [AIR 1986 MADRAS 41].18. We are in full agreement with the above propositions of law.In the case on hand, no such notice under Section 45(1) of the Acthas been issued to the Trustees by the Department. It is their casethat since the Managing Trustee himself has requested to appoint anExecutive Officer, no necessity has arisen to issue any notice underSection 45(1). Though, at the outer periphery, this argument advancedon the part of the Department appears to be attractive, factually itis incorrect, in view of the earlier findings rendered by this Courtregarding the same issue in A.S.No.122 of 1973, dated 16.12.1977 towhich the Department is also a party and further in view of therecitals of the Settlement Deed dated 19.10.1945. Therefore, even onthis score, the impugned order passed by the Department suffers, thusrendering it a nullity. https://hcservices.ecourts.gov.in/hcservices/

19. Further more, in the impugned order, appointing theExecutive Officer, no specific instance of any mismanagement of theTrust by the Trustees has been pointed out by the Department and itseems they have proceeded on the basis of an assumption that theremay be mismanagement. The other argument advanced on the part of theDepartment that the death of the father of the appellant and thetaking over of the Managing Trusteeship of the temple by applying therule of heredity and succession by the appellant, was not intimatedto him by anybody. Admittedly, the author of the alleged letterMr.Kanniappa Chettiar, the father of the appellant died on 1.7.1990and the impugned order came to be passed on 9.7.1990, i.e. within ashort span of eight days. It can be understood that after the deathof a member of the Hindu family, it will take some considerable timefor the family members to settle things, particularly only aftercompletion of the ceremony, either on 11th day or on 13th day or sometimes even on 15th day. Therefore, a legal presumption would arisethat there was no time or occasion for the appellant and his familymembers to bring to the notice of the Department, about the death oftheir father and subsequent events immediately. Therefore, we are notin a position to blame the appellant for not bringing to the noticeof the death of their father and the subsequent events to theDepartment. 20. It is also seen that based on the observations made by thelearned single Judge of this Court in the above said A.S.No.122 of1973, dated 16.12.1977, a draft scheme was issued in Rc.O.A.243/87B1, dated 20.11.1990 by the Deputy Commissioner of HR&CE, which wasconfirmed by the proceeding dated 14.1.1992. The terms of thisScheme are extracted hereunder for the sake of easy reference:"1. The Scheme shall come into force from the date of itspublication in the District Gazette of Ambedkar North ArcotDistrict.2. The temple Arulmighu Narayanaswamy Temple, Pudupet,Thirupattur Taluk, N.A.District with all its propertiesboth movables and immovables which belong to or have beenor may hereinafter be given dedicated or endowed theretoshall vest with the aforesaid deity.3. The administration of the temple and its property shallvest with a Board of Trustees, consisting of the hereditarytrustees, as recognized by the High Court of Madras inAppeal No.122/73 and will be the representatives of thefamilies of the original trustees mentioned in the deed ofEndowment created by Poova Chettiar on 19.10.1945. If anyof the above said families is unwilling represented in thetrust Board, the trust board shall consent therepresentatives of the families willing to be represented.4. There shall be an executive officer appointed by theCommissioner to assist in administrating the temple and itsproperties. The powers and responsibilities, as betweenthe hereditary trustees and the executive officer, shall beprescribed by the Commissioner.5. The hereditary trustees shall elect one among themselvesas Chairman Board of trustees, if there are more than onetrustees. https://hcservices.ecourts.gov.in/hcservices/

6. In all the other respects, the H.R. & C.E. Act provisionsand the rules framed thereunder will apply to theadministration of this temple and its properties.”21.Though Clause No.3 of this Scheme seems to have fullyreflected the intention of the framers of the Settlement deed dated19.10.1945, applying the rule of hereditary trusteeship of thetemple, clause No.4, appears to run counter to the contents of theSettlement deed dated 19.10.1945 since it says that there shall be anexecutive officer appointed by the Commissioner, to assist inadministrating the temple and its properties and the powers andresponsibilities as between the hereditary trustees and the executiveofficer shall be prescribed by the Commissioner. However, since thesaid Scheme is not under challenge before us, we restrain ourselvesfrom discussing and deciding this aspect. If at all the appellant isaggrieved, he has to initiate necessary proceedings as against theobjectionable parts of the Scheme.For all the above discussions, we have no hesitation to holdthat the impugned order passed by the Department, appointing anExecutive Officer, simply based on the alleged letter addressed bythe father of the appellant that too without following the procedurecontemplated under the Tamil Nadu Hindu Religious and CharitableEndowments Act 1959 and without any legal sanctity, is bad and non-est in law. Therefore, this writ appeal deserves to be allowed,setting aside the order of the learned single Judge.Accordingly, this writ appeal is allowed and the order of thelearned single Judge is set aside. No costs.Rao-Sd/-Assistant Registrar/True Copy/ Sub Assistant Registrar ToThe Commissioner,H.R.&C.E. Administration,Madras-600034.+1 C.C. to the Government Pleader (SR.38527)+1 C.C. to the Mr.V.Raghavachari (SR.38337) Judgment in W.A.No.1698/1999RL (CO)KP (29.08.09)