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The State of Madras, Represented by the Commissioner for Hindu Religious and Charitable Endowments and anr. Vs. Sambandamurthi Mudaliar - Court Judgment

LegalCrystal Citation
SubjectTrusts And Societies
CourtChennai High Court
Decided On
Reported in(1966)2MLJ337
AppellantThe State of Madras, Represented by the Commissioner for Hindu Religious and Charitable Endowments a
RespondentSambandamurthi Mudaliar
Cases ReferredFollowing State of Madras v. Ramakrishna
Excerpt:
- - on an application for the purpose made by the respondent, the second defendant, in the first instance, held that the trusteeship of the institution was not hereditary, and an appeal by the respondent to the commissioner failed, his order being dated 10th may, 1960. he instituted the suit on 9th january, 1961. 2. in the court below, two questions were raised: they were prepared to hold that succession to an office of trustee by election may well be comprehended by section 6(9). but at the same time they were of the view that were the office of trusteeship by election can be held only for a term of years, though by usage, it could not possibly be brought within the purview of this provision. that is precisely the case here......being. the definition, as we find to-day, includes three types of cases, (i) succession to the office of trusteeship devolving by hereditary right, (ii) succession to such office being regulated by usage and (iii) succession being specifically provided for by the founder, provided the scheme of such succession is still in force. in the second category of cases, the question had arisen in one or two cases before this court as to whether, where a trustee is elected by usage, his office could be regarded as hereditary. the latest of them is state of madras v. ramakrishna : (1957)2mlj252 . there the management of sri parthasarathi swami temple is governed by a scheme settled by this court in 1924. the scheme provides that the dharmakarthas shall be three in number and shall hold office.....
Judgment:

K. Veeraswami, J.

1. The defendants are the appellants from a decree setting aside the order of the first defendant, who is the Commissioner, Hindu Religious and Charitable Endowments, Madras, dated 10th May, 1960 by which he confirmed the order of the second defendant, the Deputy Commissioner in the same department holding that the trusteeship of the Kumaran Koil in Manjakollai village is not hereditary. The respondent was elected as a trustee by the Senguntha Mudaliar of Manjakollai village at a meeting held on 27th June, 1957. According to him, the temple was founded two hundred years ago by the members of his community and since then the management of the temple and its affairs has continuously been in the Senguntha Mudaliar community of Manjakollai, and that no person other than one elected as trustee by the community had at any time any right of control and management of the temple and its properties. In 1926, the temple was declared as an excepted temple under the provisions of Madras Act I of 1925. The trusteeship of the temple is, therefore, as the respondent would maintain, hereditary. The appellants, however, took a different view of the matter and proceeded on the basis that, Kumaran Koil is not one whose trusteeship is hereditary. On an application for the purpose made by the respondent, the second defendant, in the first instance, held that the trusteeship of the institution was not hereditary, and an appeal by the respondent to the Commissioner failed, his order being dated 10th May, 1960. He instituted the suit on 9th January, 1961.

2. In the Court below, two questions were raised: (i) whether the respondent is a hereditary trustee as claimed by him; and (ii) whether the suit was within time. The Court below answered both the questions in favour of the respondent and decreed the suit.

3. Before us, the learned Government Pleader has reiterated the same two points We shall first dispose of the second one relating to limitation. A copy of the order of the Commissioner, dated 10th May, 1960, was transmitted to the respondent on 18th May, 1960, but since it was not accompanied by the annexure to the order, the respondent applied on 1st June, 1960, to the second defendant for a copy thereof. The respondent deposed that he was directed by the second defendant to apply to the first defendant for a copy and thereafter he filed an application to the Commissioner on 25th August, 1960, and actually received a copy of the annexure on 13th October, 1960. It was contended for the department that the suit was out of time since Section 70(1)(i) of Madras Act XXII of 1959 allowed only ninety days from the date of receipt of the order for institution of a suit. This will depend upon whether the time lost by the respondent in making an application to the second defendant could be allowed in his favour. No doubt, the second defendant could not grant a copy of the annexure, since it related to an order passed by the first defendant. But we find that in exercise of the powers under Section 116(2)(vi) of the Act the State Government framed certain rules governing the procedure for grant of certified copies--vide G.O. Ms. No. 865, Revenue, 15th February, 1960. Rule 3 (ii) provides that if an application for a copy is made to a Deputy Commissioner or an Assistant Commissioner and the document is one of which a copy cannot be granted by him, he should forward the application to the Commissioner with his remarks. This the second defendant does not appear to have done. The Sub-rule pre-supposes that if an application was filed before the Deputy Commissioner, who could not grant the certified copy it could not, on that account, be regarded as improperly presented for, the Sub-rule requires the Deputy Commissioner to transmit it to the Commissioner with his remarks so that it could be complied with. We are, therefore, of the view that the respondent is entitled to credit for the time taken between 1st June, 1960 and 25th August, 1960, for, if the application had been transmitted by the second defendant, as required by the rules, to the Commissioner, no question of any bar of limitation could have arisen. It follows, the suit was instituted in time.

4. On the first point argued before us as to the nature of the trusteeship of the suit institution, the Court below, on the evidence before it, found that over a long period of years the trustee to the institution was elected by and from the Senguntha Mudaliars of Manjakollai and that the respondent was such a representative chosen by the Manjakollai Senguntha Mudaliars in pursuance of the long usage. It was, therefore, of the view that the trusteeship was hereditary within the meaning of Section 6(9) of Madras Act XIX of 1951. This Act has since been substituted by Madras Act XXII of 1959 but the definition of hereditary trustee is identical in both the Acts. Section 6(9) is as follows:

Hereditary trustee means 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 definition read in the same way even before 1951 with this limited difference that before, it included the case of succession to the office by nomination by the trustee for the time being. The definition, as we find to-day, includes three types of cases, (i) succession to the office of trusteeship devolving by hereditary right, (ii) succession to such office being regulated by usage and (iii) succession being specifically provided for by the founder, provided the scheme of such succession is still in force. In the second category of cases, the question had arisen in one or two cases before this Court as to whether, where a trustee is elected by usage, his office could be regarded as hereditary. The latest of them is State of Madras v. Ramakrishna : (1957)2MLJ252 . There the management of Sri Parthasarathi Swami temple is governed by a scheme settled by this Court in 1924. The scheme provides that the dharmakarthas shall be three in number and shall hold office for a period of five years from the date of appointment. The mode of appointment is by election by persons whose names are included on the date of election in the list of voters maintained by the temple. The qualifications for such voters are also mentioned in the scheme. 'When a vacancy arose in one of the places of the dharmakarthas the Commissioner for Hindu Religious Endowments filled it up by exercising his power of appointment under the provisions of Act XIX of 1951, the validity of which was contested by means of a petition Under Article 226 of the Constitution. Subba Rao, J. (as he then was) quashed the order of appointment on the view that Section 42 of that Act had no application as the trustees of the temple were hereditary trustees. On appeal under the Letters Patent a Division Bench considered that though the scheme recognized the earlier usage of electing trustees the language is regulated by usage in the definition of hereditary trustees would not be applicable to a temple if succession to the trusteeship was regulated by usage but is no longer regulated by usage. Though this was sufficient to dispose of the appeal, the learned Judges proceeded to consider the precise scope of the word succession in the definition in the context of the language is regulated by usage. They were prepared to hold that succession to an office of trustee by election may well be comprehended by Section 6(9). But at the same time they were of the view that were the office of trusteeship by election can be held only for a term of years, though by usage, it could not possibly be brought within the purview of this provision. They expressed their view in the following words (at page 1090):

It appears to us to be singularly inappropriate 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.

That is precisely the case here. Though the observations of the Division Bench in that case were obiter, because the appeal was disposed of on the other point, we are, with great respect, in agreement with those observations,

5. Mr. Mohan Kumaramangalam for the respondent realized the force of the observations in that case and that they would govern the instant case. But learned Counsel argued that the limited interpretation placed in that case on the word succession requires reconsideration. He says that if election to the office of trusteeship is regulated by usage and if that falls within the ambit of succession, there is no reason to limit its scope to election to an office which will be held for life and not for a period of years. Succession which is contemplated by the definition is to an office and there is no anomaly, according to the learned Counsel, in A succeeding to A's office, if the appointment to the office is by election and the duration of the office is regulated by usage. Where the office itself can be held, according to usage, for a term of years, it is not impossible for A, who is re-elected as a trustee, to continue to hold that office in succession. It is said that succession in the Sub-section is not used with reference to the practice sanctioned by usage. But what is important to note is that the definition is that of a hereditary trustee and is in terms of succession to the office as regulated by usage. While succession indicates continuity, it also implies that it is from one to another. It looks to us to be inappropriate and odd that A, who has been elected as a trustee succeeds to the office of the trusteeship when he is re-elected. The same person cannot succeed to himself when re-elected; he continues in office and not succeeds to it. Following State of Madras v. Ramakrishna : (1957)2MLJ252 therefore, we hold that, although the respondent was elected in accordance with the usage, inasmuch as the office can be held only for a term, he cannot be regarded as a hereditary trustee.

6. The appeal is allowed and the decree of the Court below is set aside. The appellants will be entitled to their costs throughout.


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