IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED ::12-05-2011 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.28953 OF 2008 C.R.Ratan ... Petitioner -vs- 1.The Commissioner, Hindu Religious & Charitable Endowments Administration Department, Uthamar Gandhi Salai, Chennai-600 034. 2.The Joint Commissioner, Hindu Religious & Charitable Endowments Administration Department, Uthamar Gandhi Salai, Chennai-600 034. 3.P.V.Rajkumar ... Respondents For petitioner : Mr.M.Sundar For respondents 1 and 2 : Mr.T.Chandrasekaran, Spl.Govt.Pleader. For respondent 3 : Mr.G.Sukumaran Petition under Article 226 of the Constitution of India. O R D E R The order passed by the Commissioner of Hindu Religious & Charitable Endowments Administration Department, first respondent herein, in A.P.No.15 of 2005-D2, dated 12.06.2008, has been called in question, seeking to quash the same and for a consequential direction to the second respondent to record/appoint the writ petitioner as a hereditary trustee of the Apparswamy Temple, Mylapore, Chennai-600 004. 2. The checkered history of the case would run thus : 2.1. Apparswamy Temple, Mylapore, Chennai, is a very ancient temple, hereinafter referred to as " the temple". Saint Apparswamy was buried in the said temple site at Royapettah High Road, Mylapore, Chennai, and Sivalingam was consecrated therein. https://hcservices.ecourts.gov.in/hcservices/ Adjoining the Samadhi of Saint Apparswamy, one Chidambaraswamy constructed a madam and installed idols of Lord Vinayaka and Lord Muruga. The said Chidambaraswamy, when he was alive, was regularly performing poojas according to agamas, Hindu rites and customs. Chidambaraswamy left a Will dated 04.05.1871. In that Will, he bequeathed all his estate to Apparswamy temple and several immovable properties around the said temple in Royapettah and Mylapore besides properties in Thiruvanmiyur and Guindy, for the sole purpose of performing poojas and aradhanas in the said temple. 2.2. According to the petitioner, his great grandfather C.Rathinavelu Mudaliar, B.A., B.L. (Senior) was appointed as hereditary trustee under the Will to perform poojas and for managing the affairs of the said temple. The said Chidambaraswamy expressed his desire in that Will, stating that after the death of C.Rathinavelu Mudaliar Senior, his heirs, successors and administrators should be the trustee/trustees and they should be in possession of all the immovable properties dedicated to the said temple and all other title deeds and documents thereto with a power to deal with the properties in a manner which they think proper and appropriate. After the death of Rathinavelu Mudaliar Senior, his eldest son C.Duraivelu Mudaliar succeeded as hereditary trustee, who was a bachelor and therefore issueless and died in 1935. Thereafter, Duraivelu Mudaliar's brother C.Rathinavelu Mudaliar (Junior) became the hereditary trustee. After the demise of Rathinavelu Mudaliar Junior in 1961, his eldest son C.R.Rathinavelu Mudaliar (Second Junior), who is the father of the petitioner, should have succeeded and become the hereditary trustee, but, as he predeceased his father on 10.05.1949, one C.Bhaskar took charge of the administration of the said temple, who, later on, had relinquished all his rights and severed himself from the family by executing a release deed dated 24.06.1940. He was placed under suspension by the Hindu Religious & Charitable Endowments Administration Department, in short, "the Department" in 1963. On such suspension, the daughter of Rathinavelu Mudaliar Junior by name Ratnangi Ammal, petitioner's aunt, was appointed as fit person temporarily. 2.3. In that situation, using Ratnangi Ammal, who was a conservative home bound woman, her son Dr.P.V. Rajkumar, third respondent herein, got into the administration of the said temple and managed to get himself recorded as hereditary trustee before the demise of Ratnangi Ammal, who died in the year 1998. While doing so, the third respondent suppressed the details of other legal heirs who are entitled to be appointed as hereditary trustees and he had been continuously acting against the interest of the said temple and committing several deeds of mal-administration. Thereafter, the elder brother of the petitioner by name C.R.Selvakumar had initiated steps to get himself appointed as hereditary trustee, but, now, he is not pursuing the matter. Since Rathinavelu Mudaliar Second Junior, father of the petitioner, predeceased Rathinavelu Mudaliar Junior, https://hcservices.ecourts.gov.in/hcservices/ grandfather of the petitioner, father of the petitioner could not succeed to the office of the hereditary trusteeship, which position has gone against the Will, as it clearly refers to 'heirs' in plural. Therefore, the petitioner is entitled to be recorded as a hereditary trustee. 2.4. The petitioner learnt that a suit vide O.S.No.726 of 1993 on the file of City Civil Court, Madras, has been filed by a tenant one Indira against the said temple, in which she sworn to an affidavit in support of I.A.No.1038 of 1999, averring that the third respondent has taken a sum of Rs.50,000/- on 28.07.1997 from her tenancy through A.Jeyaveerapandian and has not accounted for the same. One C.B.Kubendran filed a suit O.S.No.332 of 1967 on the file of City Civil Court, Madras, contending inter alia that he should be declared as hereditary trustee of the temple, which suit was dismissed by the judgment and decree dated 18.10.1969, holding that the said C.B.Kubendran is not entitled to the office of the hereditary trustee, as he he is not a son born out of the legitimate wedlock of Bhaskar. 2.5. That being so, the second respondent, by his proceedings Na.Ka.3350/94/A1, dated 08.03.1994, initiated disciplinary proceedings against the third respondent for misappropriation, embezzlement etc. and 19 charges of serious nature were set out against the third respondent, alleging that he has acted against the interest of the said temple. The petitioner filed M.P.No.1 of 2003 on the file of the second respondent under Section 53 (2) (b) (d) (e) and Section 53 (4) listing out various deeds of mal-administration and acts against the third respondent and sought for his removal from the office of hereditary trustee. Besides that, he filed O.A.No.6 of 2003 on the file of the second respondent under Section 63 (b) of the Act with a prayer to appoint him as hereditary trustee. In support of his claim, the petitioner has also placed a genealogical tree before the second respondent for better consideration. While the above applications are pending on the file of the second respondent, the petitioner filed W.P.No.20076 of 2003 on the file of this Court for a direction to dispose of his applications, which came to be disposed of on 21.07.2003, with a direction to the second respondent to dispose of the said applications within a time frame of 16 weeks. Pursuant to that, the second respond ent passed a common order on 13.04.2005 dismissing both the applications, holding that O.A.No.6 of 2003 is dependent on M.P.No.1 of 2003 seeking removal of third respondent and the second respondent has proceeded on an erroneous assumption as if the petitioner had sought removal of the third respondent, when he sought for appointment as another hereditary trustee along with the third respondent, irrespective of whether the third respondent is removed or not. Such a plea was made on the ground that the Will of Chidambaraswamy envisages appointment of 'heirs' in plural. Several vast and valuable properties have been dedicated to the temple,which, https://hcservices.ecourts.gov.in/hcservices/ in the context of all round growth over a period of time, clearly necessitates the appointment of more than one hereditary trustee for administration and management. This has been obviously foreseen by the testator while writing the Will. That being so, the second respondent has completely misread the genealogical tree and passed the impugned orders, stating that the petitioner is the son of C.B.Kubendran, while there is no dispute that he is the son of C.R.Rathinavelu Mudaliar Junior. 2.6. In the above circumstances, two independent appeals in A.P.No.15 of 2005 under Section 69 (1) of the Act against O.A.No.6 of 2003 and A.P.No.22 of 2007 under Section 53 (5) of the Act against M.P.No.1 of 2003 were filed before the first respondent, which are statutory appeals under the Act. The first respondent, by his order dated 14.06.2008 in A.P.No.22 of 2007, remanded the matter to the Joint Commissioner and by another order dated 12.06.2008, he dismissed the appeal A.P.No.15 of 2005, holding that Civil Court should be approached for appointment of the petitioner as a hereditary trustee, notwithstanding the fact that earlier appointments of the third respondent and his mother Rathnangi Ammal were made only by the Department. Hence, this Writ Petition. 3. Respondents 1 and 2 have filed a counter, stating as follows : Arulmighu Apparswamy Temple, Mylapore, Chennai, is a public temple under the control of the Department. The office of the trustee of the temple has been declared as hereditary trustee under the Act by the then Deputy Commissioner, HR&CE Department, Chennai, in O.A.No.139 of 1953 and one Thiru C.Rathinavelu Mudaliar was declared as hereditary trustee then. Presently, the office of the hereditary trustee of the temple is held by the third respondent herein, by way of succession. The writ petitioner filed O.A.No.6 of 2003 under Section 63 (b) of the Act before the second respondent, praying for declaring him as the hereditary trustee of the temple and the second respondent dismissed the application, holding that the petitioner filed the application after a lapse of over 12 years and hence the prayer of the petitioner was barred by limitation. Aggrieved by the said order, the petitioner filed A.P.No.15 of 2005 before the first respondent, who, after hearing the arguments of both sides and perusing the connected records, dismissed the appeal on 12.06.2008 as not maintainable and the petitioner was directed to move the competent civil forum. 4. Third respondent has filed a counter, stating as under : 4.1. Arulmigu Apparswamy Temple is a public temple under the superintending control of the first respondent. The management of the temple and its properties vests with the hereditary trustee by an order of the then Deputy Commissioner made in O.A.No.139 of 1953 https://hcservices.ecourts.gov.in/hcservices/ and C.Rathinavelu Mudaliar was declared as the hereditary trustee. Subsequently, by operation of law of succession, his successor became the hereditary trustee and in the interim vacancy Smt.Ratnangi Ammal, mother of third respondent, was appointed as fit person under Section 53 (b) of the Act, by an order dated 30.07.1964, in M.P.No.65 of 1993. Subsequently, she was recognized as hereditary trustee in M.P.No.9 of 1991, dated 04.01.1993. Thereafter, in her place, third respondent, her eldest son, was appointed as hereditary trustee by an order of the then Deputy Commissioner in M.P.No.8 of 1993, dated 25.10.1993, and he is in office for the past 15 years without any blemish. 4.2. Thiru C.R.Selvakumar, elder brother of the petitioner herein, claimed succession and also right of hereditary trusteeship, questioning the appointment order of fit person made in M.P.No.9 of 1991, dated 04.01.1993, and also the recognition of the third respondent hereditary trusteeship order made in M.P.No.8 of 1993 dated 25.10.1993 and filed a revision in R.P.No.75 of 1994 before the first respondent and the said revision was dismissed on 08.08.1996. C.R.Selvakumar and one C.B.Kubendran, son of Baskar, have claimed succession and right of hereditary trusteeship in Civil Suit, which culminated in S.A.Nos.1118/1971,654/1972 and 655/1972 on the file of this High Court and those appeals were dismissed by this Court by a common judgment dated 18.10.1982. In view of the findings given in the above civil proceedings already initiated by C.R.Selvakumar, now, his younger brother, petitioner herein, who is in the same family cannot agitate the issue claiming succession and hereditary right either under Section 54 (1) of 63 (b) of the Act. However, the petitioner has invoked Section 63 (b) and claimed hereditary trusteeship in O.A.No.6/2003, which was dismissed, against which he filed appeal A.P.No.15/2005 before the first respondent and the same has been dismissed on 12.06.2008. Now, the only remedy available under the Act for the petitioner is to file statutory suit under Section 70 of the Act before competent Civil Court and the Civil Court can test the genealogy tree and also plurality of the word "heirs", by assessing oral and documentary evidence in support thereof. Hence, the Writ Petition is not maintainable and the order passed by the first respondent, directing the petitioner to approach the Civil Court, is valid in law and cannot be found fault with. 5. Learned counsel for the petitioner would contend that the issue of approaching the Civil Court would arise only where there is a dispute between the legal heirs and therefore the second respondent has passed the impugned order on a complete misreading of genealogical tree, overlooking the interest of the testator in the Will for appointment of more than one hereditary trustee. He would further contend that even if the petitioner has invoked the wrong provision of law, that does not disentitle him from recording as a hereditary trustee. It is his contention that the authorities below have completely relied upon the decision of the learned single Judge https://hcservices.ecourts.gov.in/hcservices/ of this Court in respect of appointment of hereditary trustee, which clearly indicates that it will not operate as res judicata, to raise the issue again. Accordingly, he prayed for quashing the orders of the second respondent. In support of his contentions, the learned counsel has relied upon the following authorities : (i) P.K. Palanisamy v. N. Arumugham,(2009) 9 SCC 173 =2009 (4) CTC 187: "26. A contention has been raised that the applications filed by the appellant herein having regard to the decisions of the Madras High Court could not have been entertained which were filed under Section 148 of the Code. 27. Section 148 of the Code is a general provision and Section 149 thereof is special. The first application should have been filed in terms of Section 149 of the Code. Once the court granted time for payment of deficit court fee within the period specified therefor, it would have been possible to extend the same by the court in exercise of its power under Section 148 of the Code. Only because a wrong provision was mentioned by the appellant, the same, in our opinion, by itself would not be a ground to hold that the application was not maintainable or that the order passed thereon would be a nullity. It is a well-settled principle of law that mentioning of a wrong provision or non-mentioning of a provision does not invalidate an order if the court and/or statutory authority had the requisite jurisdiction therefor." (ii) Tirupati Developers (P) Ltd. v. Magma Leasing Ltd., (2006) 9 SCC 548 : "4. Learned counsel for the appellants states that the High Court without notice to the present appellants made the above observations that in the absence of a mortgage decree the appellants could not proceed under the mortgage deed. It is pointed out that the appellant Peerless General Finance & Investment Co. Ltd. had already obtained a decree based on mortgage. This mistake has occurred in the order of the High Court because the appellant Peerless General Finance & Investment Co. Ltd. was not a party and was not noticed. The learned counsel appearing for the appellant Peerless General Finance & Investment Co. Ltd. and Respondent 2 in SLP (C) No. 15015 of 2004 agree that the order of the https://hcservices.ecourts.gov.in/hcservices/ High Court be set aside and the matters be remitted back to the executing court for rehearing." (iii) Pandit Ishwardas v. State of M.P., (1979) 4 SCC 163 : "7. The plaintiff in both the’ suits was the same. The contesting defendant was also the same, namely the State of Madhya Pradesh. In the present suit Melaram and the Chief Conservator of Forests were also im-pleaded as parties whereas in the other suit some other person was a party. We do not see that it makes any difference. In order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim. The issue in the present suit and the issue in the Dewas suit were between the same parties namely the appellant and the State of Madhya Pradesh. The submission that the subject- matters of the two suits were different because the present suit was fpr a declaration and the other suit was for damges is equally without substance since the issue between the parties was identical in both the suits. The question at issue in both the suits waa whether the agreement between Melaram and the Government and the surety bond executed by the plaintiff were not enforceable because of the failure to comply with Article 299 of the Constitution. The ground on which the agreement and the surety bond were sustained in the Dewas suit was that the Raj Pramukh had ratified the same. The fact that the ratification by the Raj Pramukh was not expressly mentioned in the present suit does not make any difference to the plea of res judicata. Once the questions at issue in the two suits are found to be the same, the fact that the material which led to the decision in the earlier suit was not again placed before the Court in the second suit cannot make the slightest difference. The plea of res judicata may be sustained without anything more, if the questions at issue and the parties are the same, subject of course to the other conditions prescribed by Section 11 Civil Procedure Code. The submission of the learned counsel that the decision of the Dewas Court and the High Court in https://hcservices.ecourts.gov.in/hcservices/ the other suit were non est because they upheld an illegal contract has only to be noticed to be rejected." (iv) V.T.S.Thyagasundaradoss Thevar v. T.T.S.Sevuga Pandia Thevar, AIR 1965 Supreme Court 1730 : "It is a well settled rule of construction that the same words used in a document shall be given the same meaning unless there is a clear intention to the contrary. It was not disputed that in the case of C,D and E Schedule the said words of disposition conveyed an absolute interest to the legatees mentioned therein. If that be so, without violating the said rule of construction and without doing violence to the language used no different meaning to the clause containing the disposition of the A Schedule property in favour of the Zamindar could be given. It was impossible to construe the said words to mean that the testator was only recognizing the rights of the son to the Estate if he died intestate, that will be rewriting the will." (v) Sambudamurthi Mudaliar v. State of Madras, (1970) 1 SCC 4 : "3. The question to be considered in this appeal is whether the appellant is a hereditary trustee within the meaning of the section. The definition includes three types of cases: (1) succession to the office of trusteeship devolving by hereditary right; (2) succession to such office being regulated by usage; and (3) succession being specifically provided for by the founder on condition that the scheme of such succession is still in force. It is not the case of the appellant that the trustees of the temple of the Kumaran Koil are hereditary trustees because their office devolves by hereditary right or because succession to that office is specifically provided for by the founder. The contention on behalf of the appellant is that the succession is “regulated by usage”. It was said that according to the usage of the temple the trustees were elected for a period of one year each at a meeting of the members of the Sangunatha Mudaliar Community and so the appellant must be held to be a trustee within the meaning of Section 6(9) of Act, 19 of https://hcservices.ecourts.gov.in/hcservices/ 1951. In our opinion, there is no warrant for this argument. The phrase “regulated by usage” in Section 6(9) of the Act must be construed along with the phrase “succession to this office” and when so construed that part of the definition would only apply where the ordinary rules of succession under the Hindu law are modified by usage and succession has to be determined in accordance with the modified rules. The word “succession” in relation to property and rights and interests in property generally implies “passing of an interest from one person to another” (vide in re Hindu Women’s Right to Properly Act, 1941)1. It is now well-established that the office of a hereditary trustee is in the nature of property. This is so whether the trustee has a beneficial interest of some sort or not. (See Ganesh Chander Dhur v. Lal Behari2 and Bhabatatini v. Ashalata).3 Ordinarily a Shebaitship or the office of Dharmakartha is vested in the heirs of the founder unless the founder has laid down a special scheme of succession or except when usage or custom to the contrary is proved to exist. Mukherjee, J., in Angurbala Mullick v. Debabrate Mullick4 delivering the judgment of this Court observed: “Unless, therefore, the founder has disposed of the Shebaitship in any particular manner — and this right of disposition is inherent in the founder — or except when usage or custom of a different nature is proved to exist, Shebaitship like any other species of heritable property follows the line of inheritance from the founder.” In the case of Mutts, whose heads are often celibates and sometimes sanyasins, special rules of succession obtain by custom and usage. In Sital Das v. Sant Ram5 the law was taken as well-settled that succession to Mahantship of a Mutt or religious institution is regulated by custom or usage of the particular institution except where the rule of succession is laid down by the founder himself who created the endowment. In that case the custom in matters of succession to Mahantship was that the assembly of Bairagis and worshippers of the temple appointed the successor; but the appointment had to be made from the disciples of the deceased Mahant if he left any, and failing disciples, any one of his spiritual kindred. Such a succession was described as not hereditary in https://hcservices.ecourts.gov.in/hcservices/ the sense that on the death of an existing Mahant, his Chela does not succeed to the office as a matter of course, because the successor acquires a right only by appointment and the authority to appoint is vested in the assembly of the Bairagis and the worshippers. In Sri Mahant Paramananda Das Goswami v. Radhakrishna Das6 the Madras High Court took the view that where succession to the Mahantship is by nomination by the holder in office, it is not a hereditary succession. In that case Venkatasubba Rao, J., said: “If the successor owes his title to nomination or appointment, that is, his succession depends on the volition of the last incumbent and does not rest upon independent title, I am inclined to the view that the office cannot be said to be hereditary.” Krishnan, J., stated as follows: “Where succession is by nomination by the holder in office of his successor it seems to be impossible to contend that it is a hereditary succession. Hereditary succession is succession by the heir to the deceased under the law, the office must be transmitted to the successor according to some definite rules of descent which by their own force designate the person to succeed. There need be no blood relationship between the deceased and his successor but the right of the latter should not depend upon the choice of any individual.” It is true that the artificial definition of hereditary trustee in Section 6(9) of the Act would include even such cases." (vi) A judgment of this Court, dated 17.7.1972, made in A.S.No.440 of 1965 in the case of Kuppu Ramalingam Chettiar v. Ranganathan Chettiar, reported in 1972 TLNJ 379 : "To apply the principles laid down in AIR 1936 Mad 188 and AIR 1931 Mad 505 the essential requisite is that the person who claims trusteeship and against whom the plea of bar of limitation is as such to be put forward, should claim as a successor of the person whose right is lost. If this pre-requisite is wanting, the above said principles cannot be applied. In the instant case, the plaintiff claims