V. Ramaswami, J.
1. These three appeals have been filed by the unsuccessful plaintiffs in O. S. Nos. 55, 56 and 57 of 1961 on the file of learned Subordinate Judge of Erode. O. S. No. 55 of 1961, against which A. S. No. 11 of 1964 has been filed, was a suit to set aside the Order of the Commissioner of the Hindu Religious and Charitable Endowments Board, Madras dated 18-3-1971 confirming the dismissal, by the Deputy Commissioner of the Plaintiff's application under Section 57(b) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1951 for a declaration that the plaintiff was the hereditary trustee of the suit temple. The Plaintiff's case was that the Plaintiff's maternal grand-father one Krishna Iyer and his great grand-father one Krishna Iyer and his great grand-father one Narayana Iyer had been the hereditary poojaries and trustees of an ancient temple by name Kaliyaghavaradaraja Perumal Temple at Thalayanallur, hamlet of Sivagiri Village, Erode Taluk, Coimbatore District. The lands described in Schedule A to the plaint measuring 39-70 acres belonged to the said temple having been granted to it by the ancient Kings and Palayagars of Madurai. These grants have been recognised and confirmed by the then British Government in 1863 and an inam title deed 151 was also issued for the same. These lands have been in the possession and enjoyment of the said Krishna Iyer and his predecessors-in-title.
One Subba Iyer, the only son of Krishna Iyer, executed in favour of the Plaintiff a deed of Settlement dated 30-5-1944, which has been marked at Ex. A. 1 in the suit, in and by which he transferred all his rights in and over the temple and the lands belonging to it, and the plaintiff alone has been performing the duties of the trustee and poojari for the last 17 years. While so, at the instigation of the enemies of the plaintiff, on the assumption that by reason of the irrigation facilities afforded by the lower Bhavani Project Canal the value of the lands and the income thereon have arisen, the Area Committee initiated proceedings for appointment on non-hereditary trustees and by its resolution dated 24-7-1959 appointed defendants 1 to 3 as non-hereditary trustees of the temple. The plaintiff filed an application under Sec. 57(b) of Madras Act 19 of 1951 for a declaration that he was the hereditary trustee of the said temple. This application was dismissed by the Deputy Commissioner by his Order dated 23-9-1960. On appeal by the plaintiff the Commissioner confirmed the Order of dismissal of the Deputy Commissioner by his order dated 18-3-1961. The plaintiff has filed O. S. No. 55 of 1961 to set aside this order of the Commissioner dated 18-3-1961.
2. Two separate written statements were filed, one by the 1st defendant, and the other by the 4th defendant in the suit, the Commissioner, Hindu Religious and Charitable Endowments. The 1st defendant contended that the plaintiff's predecessors-in-title were not the hereditary trustees of the suit temple, that the villagers had control over the management of the suit temple, that the hereditary poojariship and trusteeship could not be held by one and the same person, that in any case the plaintiff was not a heir-at-law of Subba Iyer and that the settlement Ex. A. 1 executed by Subba Iyer was not valid in law and did not confer any right on the plaintiff.
3. The 4th defendant, the Commissioner for the Hindu Religious and Charitable Endowments, in his written statement admitted that the plaintiff and his immediate ancestors had been performing pooja in the suit temple but contended that, while officiating as Poojaries, they also appeared to have been looking after the secular affairs of the temple generally and doing all the work connected with it, which was normally done by the trustee but stated that, that it was the practice in the last century for the subordinate officers like archakas, pericharakas and service holders to function as de facto managers in addition to the performance of their subordinate duties, that the subordinate officers always acted under the control and supervision of the Hindu worshipping public of the locality, that the settlement deed, even if true, was not valid in law and the office of trustee of a public temple or trust was inalienable in law and therefore Ex. A-1 was void. He further stated that the plaintiff was not a heir to Subba Iyer and on that ground also Ex. A. 1 was invalid, that the predecessors of the plaintiff have wrongfully alienated a portion of the inam lands endowed to the temple and that they were guilty of misfeasance and therefore the plaintiff could not be entrusted with the right of management of the temple and its endowments. It was also contended that in 1949, the Area Committee appointed trustees and that was not challenged by the plaintiff and that therefore the plaintiff had lost the right, if any, and that the suit was barred by limitation. It was also contended that the poojariship and trusteeship could not in law be combined in one and the same person and that therefore the plaintiff could not claim to be the hereditary trustee of the suit temple.
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4. These three suits were tried together, since some common questions of law and fact arise in them. The evidence was mainly recorded in O. S. No. 55 of 1961, but the evidence given by some of the witnesses in each of these three suits was adopted as evidence in the other suits in pursuance of a joint memorandum filed by the parties. The learned Subordinate Judge of Erode came to the conclusion that the plaintiffs and their predecessor-in-title in the respective suits acted as hereditary trustees of the respective temples. He also found that the plaintiff in O. S. No. 55 of 1961 was not the lawful heir of Subba Iyer and that therefore, Ex. A. 1 the settlement deed, was invalid, though true, and did not confer any right on the plaintiff. On the question whether the trusteeship and poojariship could vest in one and the same person the learned Subordinate Judge came to the conclusion that the temples in all the three suits are big temples endowed with considerable properties, which fetch a decent or large income, and that, therefore, the offices of trusteeship and archakaship could not vest in one and the same individual. He also held that the plaintiffs in the three suits were guilty of mismanagement and malpractices and on that ground they became unfit to be appointed as trustees.
On the question of limitation, the learned Subordinate Judge held that the suits were barred by limitation on the ground that they had not been filed within the statutory period of limitation against the orders of the Deputy Commissioner on their applications under Section 57(1) of the Act. The learned Subordinate Judge also held that even assuming that his finding that the plaintiffs could not function both as hereditary trustees and as poojaries and continue as such was not correct, he would dismiss the suits on the ground that they had rendered themselves unfit to hold these offices by reason of their dereliction and negligence of duty and misfeasance. In this view he dismissed all the three suits. The unsuccessful plaintiffs have filed the present appeals.
5. Two points arise for consideration in these appeals, firstly whether the appellants in these three appeals are the hereditary trustees in respect of the respective suit temples, and secondly whether the suit was barred by limitation.
6. It is the case of the plaintiffs in their respective suits that they and their ancestors have been performing poojas in their respective temples and managing the lands attached to them as trustees and that they were exercising such right or control for over three generations and that the public had no control over them. In the written statements filed on behalf of the Commissioner. Hindu Religious and Charitable Endowments it has been admitted that the predecessors-in-title of the plaintiffs in the olden days had not only performed the pooja for the temples but also managed the properties as de facto trustees. The allegation in the plaints is that for over three generations the trusteeship had been in the family of the plaintiffs and their predecessors in title. This has been admitted in the written statement filed on behalf of the Commissioner, Hindu Religious and Charitable Endowments. Though this allegation is denied by the non-hereditary trustees appointed in pursuance of the resolution of the Area Committee, the Endowment Board having conceded this right, it can be safely held that the plaintiffs and their predecessors-in-title were in possession and enjoyment of the lands attached to the respective temple as de facto trustees. it has been held in Ramados v. Hanumantha Rao. ILR (1913) Mad 364, that where an office of a certain family for nearly 100 years and by nobody else the office must be held to be hereditary in their family.
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7. It is seen from these passages and the evidence of P. W. 1 that these 60 families have been performing the poojas in the temples, but it is not stated that they have been acting as trustees also. It is the specific case of the plaintiffs that the trusteeship has been vested hereditary in the four plaintiff's families which originally formed one family. There is nothing inconsistent in the hereditary trusteeship being vested in one family, whose members were also poojaries along with the members of the other families in the village. It may be mentioned that the plaints themselves do not say that the trusteeship was enjoyed in turns among the 60 families. There is no evidence on the side of the defendants that the trusteeship was ever enjoyed by anybody else other than the four plaintiffs' families. Therefore, we consider that there is no substance in this argument of the learned counsel for the respondents.
8. Learned counsel for the appellants contended that the finding of the learned Subordinate Judge that the plaintiff in O. S. No. 55 of 1961 is not the legal heir of Subba Iyer entitled to claim the right to trusteeship and the finding that Ex. A. 1 in O. S. No. 55 of 1961 is not valid are incorrect and unsustainable. It will be seen from the recitals in Ex. A. 1 that the settlor Subba Iyer had two daughters Saraswathi and Meenakshi, that Meenakshi died without any issues, that she performed the marriage of his second daughter Saraswathi, and that she was living comfortably in her husband's house. It is mentioned in this document that Ramasubba Iyer, the grandson of Subba Iyer, was born to Saraswathi by the time the settlement deed was effected. It is not shown that Ramasubba Iyer, the grandson of Subba Iyer, was born before the execution of Ex. A. 1, the settlement deed. The Plaintiff in O. S. NO. 55 of 1961 is the sister's son of Subba Iyer and as such he is the person next in line of succession under the Hindu law at the time when Ex. A. 1 was executed. A Division Bench of this Court in Sri Mahant Prayag Dossjee Varu v. Govindacharlu, 68 MLJ 295 : AIR 1935 Mad 220 held as follows:--
'As alienation of a religious office such as that of an archakaship of a temple is not invalid when it is made in favour of one in the line of heirs of the alienor and when it is neither for consideration nor in any way opposed to or inconsistent with the interests of the institution.'
9. In Janaki Ammal v. Sanjeevi Chettiar : AIR1941Mad552 also it has been held that an alienation or release or renunciation of an office of a trustee not for value in favour of the next or immediate heir is valid. To the same effect are the decisions reported in Raghunath Vithal v. Purnanand Saraswati Swami, : AIR1923Bom358 and Seshacharyulu v. Venkatacharyulu, 1956 AWR 1050 : AIR 1957 AP 876. We have therefore no hesitation in holding that Ex. A. 1 in O. S. No. 55 of 1961 is true and valid and did confer the right of Trusteeship on the plaintiff in O. S. 55 of 1961. Even so, it is contended on behalf of the respondents that the trusteeship in the hands of the alienee-plaintiff cannot be considered to be hereditary. A Full Bench of this Court in Gauranga Sahu v. Sudevi Mata, ILR 40 Mad 612 : AIR 1918 Mad 1278 held that it is competent to a heir of the founder of a Shrine, in whom the trusteeship has vested owing to the failure of the line of the original trustee, to create a new line of trustees. Further as has been seen already, at the time when Ex. A. 1 was executed, the plaintiff in O. S. No. 55 of 1961 was the next heir in the line of succession. Therefore, we have no hesitation in holding that the plaintiff in O. S. No. 55 of 1961 acquired hereditary right to trusteeship of the suit temple under Ex. A. 1.
10. The next ground on which the learned Subordinate Judge dismissed the suits is that the suit temples are big temples endowed with considerable properties, which fetch a decent or large income and that therefore the poojarship and trusteeship cannot be held by one and the same individual. A Division Bench of this court in Muthuswami Gurukkal v. Aiyaswami Thevar, 1964 2 MLJ 560 held as follows:--
'There is nothing illegal in hereditary trusteeship and pujariship being combined in the same person especially in the case of small temples where there has been no interference or control by any of the villagers of the place. In the temple property is of insignificant value and the income is hardly sufficient even to meet the routine expenses of the temples, if the archaka or the poojari is left in management of the temple lands and the affairs of the temple without any interference by any of the villagers for a long number of years, it has to be presumed that with the consent and acquiescence of the worshippers of the village the pujari is the trustee as well. In such a case it must be held that the poojari managing the lands and affairs has made out his right of hereditary trusteeship and the interests of the temple are not likely to suffer, when the person concerned admits that the lands are temple lands and has never set up any rights to them as his own property.'
11. This decision was followed in Babu Gurukkal v. Commissioner for Hindu Religious and Charitable Endowments Board, Madras : (1964)1MLJ384 . Bearing these principles in mind let us consider the income of the suit temples from the endowed properties. In deciding this question it should be borne in mind that the income should be determined as at the time of the endowments and not what they are today.
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12. We therefore hold that the temples in all these three suits are small temples with meagre income and that therefore there is nothing illegal in the hereditary poojarship and the trusteeship vesting in the same individuals.
13. The next ground on which the learned Subordinate Judge dismissed the suits is that the plaintiffs are guilty of mismanagement and malpractices and that therefore they are not fit persons to be the trustees of the temples. We are wholly unable to understand what relevance this mismanagement has in an application under Section 57(b) of the Act for a declaration that the plaintiffs are the hereditary trustees. If the plaintiff's are guilty of mismanagement and malpractices, it is open for the appropriate authorities to take appropriate proceedings either for removal of the trustees or for the appointment of non-hereditary trustees along with the hereditary trustees in order to safeguard the interests of the temples. A Division Bench of this Court in Nagarajan v. Commr., Hindu Religious and Charitable Endowments : AIR1971Mad295 held that though Section 45 of the Act, which enables the Deputy Commissioner or the Commissioner as the case may be, to suspend, remove or dismiss the trustees, does not contemplate any notice or enquiry, the Commissioner cannot exercise that power without following the principles of natural justice and the prescribed procedure. It will be open to the Endowment Board to take such action as they may deem fit, if they consider that the plaintiffs are guilty of mismanagement and malpractices. We, therefore, set aside the findings of the learned Subordinate Judge and hold that the plaintiffs in the three suits are the hereditary trustees of the respective suit temples.
14. The next ground urged by the counsel for the appellant is that the finding of the trial court on the issue of limitation is incorrect. It is clear from the evidence and the pleadings that the orders of appointment of non-hereditary trustees by the Area Committee in 1949 were not served on the respective plaintiffs and the plaintiffs continued to be in possession of the respective temple properties. The plaintiffs state that they were not served with the notice and that they were not aware of the same. The learned counsel for the respondents could not seriously dispute this contention of the plaintiffs. If the orders were not served on the plaintiffs and they were not aware of the same they could not have challenged the same in a court of law. Therefore, the suits are not barred on the ground that the plaintiffs have not challenged the order of appointment of non-hereditary trustees made in 1949.
15. The next ground on which the suits have been held to be barred by limitation is that the Area Committee appointed non-hereditary trustees for a second time on 29-7-1959 under Exs. B. 2, B. 27 and B. 7. The plaintiffs filed applications to set aside those orders and they were dismissed by the Deputy Commissioner on 23-9-1960, 6-10-1960 and 19-9-1960 respectively. The appeals as against those orders were dismissed by the Commissioner on 18-3-1961. The learned Subordinate Judge held that the suits under Section 62 of Act 19 of 1951 should have been filed within ninety days from the date of the orders of the Deputy Commissioner, and the suits having been filed on 15-6-1961 are clearly barred by limitation. The learned Subordinate Judge has incorrectly understood the provisions of Section 62 of the Act. When an appeal has been preferred to the Commissioner, the period of limitation starts from the date of the order of the Commissioner on appeal and not from the date of the Order of the Deputy Commissioner which has been superseded by the order of the Commissioner. The order of the Commissioner in all these cases were made on 18-3-1961. The suits filed on 15-6-1961 were therefore clearly within ninety days from the date of the orders of the Commissioner and as such were clearly in time.
16. For the foregoing reasons we set aside the judgment and decrees of the court below and allow these appeals and decree the suits with costs one set. The receiver shall be discharged after taking accounts. Necessary proceedings may be taken in the Lower Court.
17. Appeals allowed.