Ramachandra Iyer, J.
1. Sri Annadhana Vinayagar Temple at Asariar Street, Tirumangalam, was founded by the Arya Vysya Kasukkara Chetty community of the village. Admittedly, the temple was managed by the community by electing a trustee from amongst themselves. The petitioner who has been holding office for over 30 years as trustee was presumably elected by the community to such office. There is nothing on record to show for what period a trustee elected by the community functions. The case for the petitioner is that a trustee elected by the community would be entitled to hold office for life or till removed by the community. Although the counter-affidavit filed by the Deputy Commissioner of Hindu Religious and Charitable Endowments (Administration) Department recognised that the community managed the temple by electing a trustee from time to time, it is not stated for how long a trustee elected by the community would hold office.
2. On 27th December, 1957, the Assistant Commissioner, Hindu Religious and Charitable Endowments, Madurai, issued a notice to the petitioner saying that the affairs of Sri Annadhana Vinayagar temple at Tirumangalam were not managed properly and calling upon him to show cause why a legally constituted trustee should not be appointed for the temple. The case for the petitioner is that the Assistant Commissioner was persuaded to take action against him at the instance of a disgruntled tenant of the temple who was colluding with the first respondent Raman Chettiar. To resume the narrative, the petitioner submitted his explanation to the Assistant Commissioner; he claimed that he was a lawfully appointed trustee and that there was no ground to remove him and to appoint another. After this explanation, one would have expected the Assistant Commissioner to enquire into the matter and find out (i) whether the petitioner was a lawful trustee; (ii) whether he was guilty of misconduct and negligence with which he was charged and if so, whether he should be removed and a new trustee should be appointed. But the Assistant Commissioner did none of these things. From this circumstance one can infer that he found nothing to justify the charges made against the petitioner in his communication, dated 27th December, 1957 and that he dropped the proceedings. But curiously enough, the Area Committee for the region adopted what evidently appeared to be a short-cut of the whole business. They appointed the first respondent as the trustee. It is obvious that they would have no jurisdiction to do so, if the petitioner was functioning as the lawful trustee. As I said earlier, there was no investigation into the charges made against the petitioner by the Assistant Commissioner and he not having been removed from the office of trusteeship, would continue to hold that office, if he was the lawfully appointed trustee. The petitioner feeling aggrieved by the appointment of the first respondent as trustee by the Area Committee, filed an application to the Commissioner, Hindu Religious and Charitable Endowments, to set aside that order. The Commissioner appears to have assumed that the petitioner was a de facto trustee and held that as a trustee had been appointed by the legally constituted authority, viz., the Area Committee, the petitioner could no longer function as the trustee of the temple and upheld the appointment of the first respondent. It is the validity of the order of the Commissioner that is challenged in the Writ Petition.
3. I must confess that the order of the Commissioner is a bit surprising. For one thing, there has been no adjudication so far of the petitioner's case that he was the lawfully appointed trustee. The Deputy Commissioner in his counter-affidavit filed in this case recognises the fact that the community has been appointing trustees from time to time. There is no material on record to show that the petitioner was elected by the community to function as the trustee of the temple only for a limited period and that period has expired. As I said earlier, there is nothing to show the period for which a person elected to the office of trustee can function as such trustee. The case of the petitioner is that he would be entitled to function as such trustee for the duration of his life. That matter has not been investigated at any stage of the proceedings. Under those circumstances, one would have expected the Commissioner to set aside the order of the Area Committee which presumed that there was a vacancy in the office of trusteeship. Obviously, there would be no vacancy if the petitioner was functioning as the lawfully appointed trustee. The learned Additional Government Pleader, however, sought to support the order of the Commissioner by a reference to the provisions of Sections 39, 41 and 44 of the Hindu Religious and Charitable Endowments Act (XIX of 1951). Section 39 will not apply to the present case as it concerns a case in respect of which the Area Committee has no jurisdiction. The present case is one where the Area Committee would have jurisdiction to appoint a trustee in case there is a vacancy. Section 41 enacts the powers of the Area Committee to appoint trustees. That section will apply to the present case. It states:
(1) In the case of any religious institution over which an Area Commitee has jurisdiction, the Area Committee shall have the same power to appoint trustees as is vested in the Commissioner in the case of a religious institution referred to in Section 39.
(Proviso is omitted as unnecessary.)
(2) The provisions of Section 39, Sub-section (3), and Section 40, shall apply to the trustee or trustees appointed, or the Board of Trustees constituted, by the Area Committee as they apply in relation to the trustee or trustees appointed, or the Board of Trustees constituted; by the Commissioner.
The provisions of Section 39 (3) relate to the term of office of a trustee appointed by the Commissioner. That provides that every trustee appointed under Section 39 (1) shall hold office for a term of five years unless he was removed or dismissed or his resignation is accepted by the Commissioner in the meanwhile. It would therefore follow that in the case of an appointment under Section 41 by the Area Committee the period of trusteeship would be five years from the date of appointment. Section 41 will not apply to the present case, for the obvious reason that the petitioner was not one who owed his appointment to the Area Committee : he was appointed by the Community. Therefore, the term of such appointment will depend upon the usage of the institution or the custom of the community. There may be cases where the community might appoint a trustee for a fixed period. There may be cases where a trustee once elected will hold office for the rest of his life unless removed by the community itself. Suffice it to say for the present purpose that Section 39(3) will not apply, i.e., to a case of appointment of a trustee by election by the community, which was in charge of the management of the temple. The learned Additional Government Pleader places considerable reliance upon Section 44 of the Act which states:
Every non-hereditary trustee lawfully holding office at the commencement of this Act, shall be deemed to have been duly appointed trustee under this Act for the residue of his term of office at such commencement.
This provision, according to the learned Additional Government Pleader, would import all the qualifications contained in Sections 39 and 41 to every trustee albeit he was appointed by virtue of an election by the community and even that trustee could hold office only for a period of five years from the date of his appointment or till the date of coming into operation of the Act, whichever is later, and that thereafter he should be considered to be only in the position of a de facto trustee. I am unable to agree with this contention. Section 44 only declares that a non-hereditary trustee holding office at the commencement of the Act would be deemed to have been duly appointed trustee under the Act for the residue of his term. If for instance, the term of appointment of a particular trustee was for his life, he would be deemed to have been appointed for his life under the Act. It cannot be said that in that case he should be deemed to have been appointed only for a period of five years. If therefore the contention of the petitioner that he was entitled to hold the office of trustee for his life were to be accepted, there can be no doubt that he would be the lawfully appointed trustee of the institution still he is removed from such office or till his death. Therefore, before it can be declared that there is no lawfully appointed trustee for the institution, it has first to be ascertained whether the petitioner is the lawfully appointed trustee of the institution, having been elected to that office by the community as per usage. This has not been investigated by the Commissioner. As I stated earlier, the Assistant Commissioner did not remove the petitioner from the office of trusteeship. In case it is found that the petitioner is the lawfully appointed trustee, his non-removal from such office would show that he still continued to function as the lawfully appointed trustee of the institution and the Area Committee would have no jurisdiction to appoint any new trustee.
4. There is a still further infirmity in the order of the Commissioner. The petitioner filed a Revision Petition challenging the propriety of the appointment of the first respondent as a trustee. The Commissioner has not considered the question whether the first respondent was fit to be the trustee of the institution; nor did he consider the question whether even assuming that the petitioner was a de facto trustee whether there is anything in the case why the petitioner himself should not have been appointed as the trustee under the Act. The order of the Commissioner as well as the appointment of the first respondent as trustee by the Area Committee could not therefore be sustained.
5. The Writ Petition is allowed. The rule nisi will be made absolute. The respondents will pay the costs of the petitioner. Advocate's fee Rs. 100.