IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.02.2010 CORAM THE HONOURABLE MRS. JUSTICE R.BANUMATHI and THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.A. No.1447 of 2009 and W.P.No.9116 of 2009 and M.P.No.1 of 2009 G.Shanmugam ... Appellant in W.A. And Petitioner in W.P. vs. 1. The Commissioner, HR&CE (Admn) Department, Nungambakkam High Road, Chennai – 600 034. 2. The Joint Commissioner, HR&CE (Admn) Department, Coimbatore – 641 018. 3. A.Saraswathi D/o. Gurunatha Pillai 4. G.Kuppusamy, S/o. Gurunatha Pillai 5. G.Palanisamy, S/o. Gurunatha Pillai 6. G.Murugesan S/o. Gurunatha Pillai 7. G.Arumugam S/o. Gurunatha Pillai 8. G.Sakthivadivelu S/o. Gurunatha Pillai ... Respondents in both https://hcservices.ecourts.gov.in/hcservices/ Prayer in W.A.No.1447 of 2009 This Appeal filed against the order dated 14.08.2009 in M.P.No.2/2009 vacating the stay order in W.P.No.9116 of 2009 passed by this Court. Petition for Stay : Pleased to stay the operation of the impugned order passed by the 1st respondent made in A.P.No.53/2007-D2, dated 03.4.2009 pending disposal of the Writ Petition. MP 2/2009, Vacating Stay Pleased to vacate the interim stay granted by this court on 14.5.2009 in MP No.1/2009 in WP No.9116/09, pending WP No.9116/2009. Prayer in W.P.No.9116 of 2009 Petition filed under Article 226 of the Constitution of India for the issuance of writ of certiorari, calling for the records relating to the orders passed by the 1st respondent herein made in A.P.No.53/2007-D2, dated 03.04.2009 and quash the same. For Appellant/Petitioner : Mr.N.R.Chandran Senior Counsel in both W.A.&W.P. for Mr.G.Sugumaran For R1 and R2 : Mr.T.Chandrasekaran Special Government Pleader in both W.A.&W.P. For R3 to R8 : Mr.W.C.Thiruvengadam in both in both W.A.&W.P. COMMON ORDER M.M.SUNDRESH, J. The writ appeal has been preferred by the appellant, challenging the order passed in M.P.No.2 of 2009 in W.P.No.9116 of 2009, vacating the order of stay granted in M.P.No.1 of 2009. Since the writ appeal and the writ petition are taken up for hearing with the consent of the parties, a common order is passed. 2. The brief facts of the case in a nutshell are as follows: (a) By proceedings dated 30.12.1964 in O.A.No.100 of 1962, the Trusteeship of Arulmighu Badrakaliamman Temple, Erode https://hcservices.ecourts.gov.in/hcservices/ District has been declared as Hereditary Trustee. One Mrs. Kuppurathinammal and her sister Rajammal were declared as Hereditary trustees to function by a term of one year each. (b) The said Kuppurathinammal was suspended by the proceedings dated 23.07.1984 and when the said proceedings are pending, she gave a letter of consent under Section 54(2) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, stating that in view of the fact that she was undergoing temporary suspension under Section 53(2) of the Act, her eldest son Mr.G.Shanmugam, who is the writ petitioner and the appellant herein, may be considered for the appointment of Hereditary Trustee. The respondents 3 to 8 herein, being the children of the said Kuppurathinammal, also gave similar consent letters in favour of Mr.G.Shanmugam. Accordingly, an order was passed by the Deputy Commissioner, H.R.&C.E., Coimbatore, appointing the writ petitioner as the Hereditary Trustee in the place of his mother. (c) Mrs. Kuppurathinammal, who is the mother of the petitioner and the Respondents 3 to 8 died on 03.04.1994. Thereafter, the petitioner filed O.S.No.540 of 1999 seeking a decree for permanent injunction, restraining the respondents 3 to 8 herein, from interfering with his Management and Administration of the temple as the Hereditary Trustee. The said suit filed by the petitioner was decreed. Thereafter, the respondents 3 to 8 filed an application before the second respondent herein in M.P.No.26 of 2005, seeking to set aside the earlier order granted in M.P.No.9 of 1992. The said application was dismissed by the second respondent by holding that in view of the consent earlier, the request of the respondents 3 to 8 cannot be considered. The appeal filed by the respondents 3 to 8 in A.P.No.53 of 2007 was allowed by the first respondent on the ground that the earlier consent was not final and inasmuch as the law of succession having been applicable, the entire matter will have to be considered afresh. Accordingly, the first respondent has remanded the matter to the 2nd respondent to decide the issue of succession to Hereditary Trusteeship afresh. (d) Not satisfied with the said order passed by the first respondent, the petitioner filed the writ petition in W.P.No.9116 of 2009, seeking to set aside the same. The learned single Judge after granting an order of interim stay initially has vacated the same and challenging the said order, the petitioner preferred a writ appeal. With the consent of the parties, we have taken up the writ petition and the writ appeal together and a common order is passed. 3. Mr.N.R.Chandran, learned senior counsel appearing for the petitioner submitted that when the order was passed by the Deputy Commissioner, Coimbatore in M.P.No.9 of 1992 dated 21.12.1992, the said order being a final order, the only option open to the respondents 3 to 8 is to file an appeal. Therefore, the very https://hcservices.ecourts.gov.in/hcservices/ application filed by the respondents 3 to 8 is not maintainable in law, in the absence of a power of review. The learned counsel further submitted that the decree obtained by the petitioner has become final and the relinquishment made by the respondents 3 to 8 is also final. Therefore, the writ petition will have to be allowed by setting aside the order of the first respondent. 4. Per contra, Mr.W.C.Thiruvengadam, learned counsel appearing for the respondents 3 to 8 submitted that it is well established the principles of law that under Section 54(1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, the law of succession operates after the death of the Hereditary Trustee. The post of the Hereditary Trustee is like that of the Dharmakarta or a Manager and therefore the order impugned in the writ petition being an order of remand will have to be sustained. The learned counsel further submitted that the question of limitation would not arise, since there is no limitation to establish a vested right and in such a case even without an application, the succession of the respondents 3 to 8 will have to be recorded. Therefore the learned counsel sought for the dismissal of the writ petition and the appeal. In support of his contention, the learned counsel has relied upon the Judgement rendered in W.P.No.11395 of 1995, dated 18.06.2002, 2002 (5) CTC 31 (N.Muthuvali vs. The Joint Commissioner, HR & CE Administrative Department, Palayamkottai, Tirunelveli- 2 & 3 Others) and AIR 1986 MADRAS 41 (Chettimai C.Nanjappa Chettiar (deceased by L.R.) and another, Appellants v. S.N.Kuppuswami Chettiar and others., Respondents) 5. The learned Government Pleader based upon the counter affidavit submitted that after the death of Kuppurathinammal, the proceedings initiated against her, as well as the subsequent proceedings got abated and therefore the order passed by the first respondent is perfectly valid in law. 6. Heard Mr.N.R.Chandran, learned senior counsel representing Mr.G.Sugumaran, learned counsel for the petitioner on record and Mr.W.C.Thiruvengadam, learned counsel appearing for the respondents 3 to 8 and the Mr.T.Chandrasekaran, learned counsel appearing for the respondents 1 and 2. 7. It is not in dispute that the Hereditary Trustee Mrs.Kuppurathinammal was placed under suspension from 23.07.1984 onwards, in regard to the proceedings under Section 53(2) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. It is also not in dispute that the said Kuppurathinammal along with the respondents 3 to 8 gave letters of consent. It is also to be seen that the said consent letters have been given under Section 54(2) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. A reading of the above said provision would show that when a temporary vacancy occurs by reason of the suspension of the https://hcservices.ecourts.gov.in/hcservices/ Hereditary Trustee under Section 53(2) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, the next in the line of succession shall be entitled to succeed. Therefore, the said consent letters have been given, pending the proceedings initiated against Mrs.Kuppurathinammal. 8. Further reading of the order passed by the Deputy Commissioner, H.R.&C.E. Department, Coimbatore in M.P.No.9 of 1992 would show that the said order is pending the proceedings against Kuppurathinammal. The above said order clearly states that in order to give an opportunity, the writ petitioner was recognised as Hereditary Trustee and the said order was passed without prejudice to the legal rights of the deceased Kuppurathinammal to prove her case against the charges framed. Therefore, from the above said order, it is clear that the order passed in M.P.No.9 of 1992 is for temporary arrangements. Hence, from the said order, it is clear that the consent letters given by the respondents 3 to 8 could only be made applicable till the proceedings against Mrs.Kuppurathinammal was pending. 9. Admittedly, Mrs.Kuppurathinammal died on 03.04.1994, therefore, the line of succession gets opened on her death. The petitioner cannot contend that the earlier letters of consent given by the respondents 3 to 8 are binding on them. The contention of the learned senior counsel that the application filed by the respondents 3 to 8 in M.P.26 of 2005 is not maintainable also cannot be countenanced since by the said application, it was only brought to the knowledge of the second respondent that in view of the death of the mother, the issues of Hereditary Trusteeship will have to be decided afresh and the earlier order passed no longer survives. 10. The other contention of the learned senior counsel that in view of the decree obtained by the petitioner against the respondents 3 to 8, it is not to open to them to contend that the consent was only temporary also cannot be accepted. A perusal of the judgement and decree rendered in O.S.No.540 of 1999 on the file of the first Additional District Munsif Court, Erode would show that the said Judgement has been rendered based upon the order passed in M.P.No.9 of 1992. The said Judgement is not binding on the respondents 3 to 8, more so, the respondents 1 and 2 who are the Statutory Authorities exercising the power under the Act and when they are also not parties to the suit. Further, the impugned order passed being an order of remand to decide the entitlement of Hereditary Trustee, we are of the considered opinion that the said order cannot be interfered with. https://hcservices.ecourts.gov.in/hcservices/ 11. Accordingly, the writ petition and the writ appeal are hereby dismissed. However, it is made clear that the second respondent shall consider all the issues raised by the petitioner and the respondents 3 to 8 on merits and in accordance with law and without being influenced by the order passed by us. 12. With these observations, the writ petition and writ appeal are dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ogy To 1. The Commissioner, HR&CE (Admn) Department, Nungambakkam High Road, Chennai – 600 034. 2. The Joint Commissioner, HR&CE (Admn) Department, Coimbatore – 641 018. + 1 cc to Mr.N.C.Thiruvenkatam CC Sr 11372 + 2 ccs to G.Sugumaran, CC Sr 11274, 11275 + 1 cc to Govt., Pleader CC SR 11288 & 11289 W.A. No.1447 of 2009 and W.P.No.9116 of 2009 MBS (CO) RH (25.2.10) https://hcservices.ecourts.gov.in/hcservices/