IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 WP(C).No. 2343 of 2009(D) ------------------------- PETITIONER:- ------------------ ZAMORIN RAJA OF CALICUT, SUKRUTHA, CHALAPPURAM, CALICUT-2. BY ADV. SMT.SHAHNA KARTHIKEYAN RESPONDENT(S):- ------------------------ 1. DIRECTOR OF LOCAL FUND AUDIT, LOCAL FUND AUDIT DEPARTMENT, KERALA, THIRUVANANTHAPURAM-33. 2. DEPUTY DIRECTOR LOCAL FUNDS AUDIT, HR & CE AUDIT, PALAKKAD. 3. MALABAR DEVASWOM BOARD, REPRESENTED BY PRESIDENT, KOZHIKODE. GOVT. PLEADER SHRI.LAKSHMI NARAYANAN FOR R1 & 2 SHRI.K.MOHANAKANNAN, SC FOR R3. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “CR” C.N.Ramachandran Nair & P.S.Gopinathan, JJ. ============================================ W.P.(C)No.2343 of 2009 ============================================ Dated this the 15th day of June, 2010. JUDGMENT Ramachandran Nair, J. 1.Heard senior counsel appearing for the petitioner, Government Pleader for the Local Fund Audit and standing counsel for Malabar Devaswom Board. 2.Petitioner is challenging demands raised against him in the form of surcharge amounting to over Rs.1.76 lakhs stated to be the amount lost to the temple on account of mis-management by the previous trusteee, who died at the age of 94. Admittedly, petitioner became hereditary trusteee only on 16.8.2003 and liability is of the year 2001. The ground raised by the petitioner's WPC2343/09 -:2:- counsel is that liability of a hereditary trustee under Section 74(3) of the Madras Hindu Religious and Charitable Endowments Act, 1951 is a personal liability and so much so, liability cannot be fastened on the petitioner, who became a trustee on the death of the previous trustee on 16.8.2003. After hearing the counsel appearing for all the parties and after going through Section 74(3), we find that liability of a trustee for loss caused to the religious institution is a personal liability, which could be recovered against such trustee. In this case since the loss happened during the time the temple was under the management of the deceased trustee, what is required to be examined is whether that trustee has properties to be proceeded against for recovery and if so, issue notice to the legal heirs and proceed for recovery subject to of course the rights WPC2343/09 -:3:- available to legal heirs to challenge the matter before the District Court in terms of Section 16 (3) of Local Fund Audit Act. We do not think there is any need for us to examine the correctness or otherwise of the proceedings for recovery recommended by Local Fund Audit because, petitioner is not contesting the same at all. We also do not think there is any need to consider the powers of the Local Fund Audit in this case because, so long as recovery is not permissible from the petitioner, there is no need for him to challenge the powers of the Local Fund Audit. Since we find that liability cannot be recovered from the successor trustee, the proceedings initiated against the petitioner has to be necessarily vacated as the same is violative of Section 74(3) of the Hindu Religious and Charitable Endowments Act. We, accordingly, allow the writ petition by vacating Exts.P5 and WPC2343/09 -:4:- P6 orders issued against the petitioner. However, we should caution the present trustee, that is the petitioner herein, to take stock of the situation and ensure that incidents that happened during his predecessor's term does not happen during his term. C.N.Ramachandran Nair, Judge. P.S.Gopinathan, Judge. sl.