IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 19.02.2008 CORAM: The Honourable Mr.Justice S.TAMILVANAN A.S.No.302 of 1997 1.Kuttiammal 2.kannappan 3.Parthiban 4.Nithyanandam 5.Mohan 6.Ramadoss (7th plaintiff in the Court below died. Therefore, his name is not shown in the cause title) ... Appellants/Plaintiffs 1 to 6 -vs- 1.The Executive Officer, Arulmigu Sengaliamman Temple, Sembilivaram Village, Sholavaram Post, Ponneri Taluk, Chengai MGR District. 2.The Deputy Commissioner, H.R.& C.E., Madras 600 034. 3.The Commissioner, H.R.& C.E., Madras 600 034. ... Respondents/Defendants Appeal is filed under Section 70(2) of the Tamil Nadu Hindu Religious and Charitable & Endowments Act, 1952 against the judgment and decree made in O.S.No.153 of 1988 dated 24.06.1996 on the file of Subordinate Judge, Tiruvallur. For Appellants : Mr.V.Nicholas For Respondent-1 : Mr.N.R.Anantha Ramakrishnan For Respondents 2 & 3 : Mr.V.Rengarajan for HR & CE https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT This appeal has been preferred against the judgment and decree dated 24.06.1996 made in O.S.No.153 of 1988 on the file of the Subordinate Judge, Tiruvallur. The appellants herein were the plaintiffs 1 to 6 in the suit filed before the Trial Court. 2.According to the appellants the suit temple Senkaliyamman Koil in Sembilivaram village, Ponneri Taluk, hereinafter referred as 'the Temple', belongs to their family. They have further stated that it is a private temple built up on the patta lands of the appellants, over 11 cents of land, in S.No.32/4 and 16 cents in S.No.29/3 in the Sembilivaram village. According to them, the founder of the temple was their ancestor who had formed the temple for the family worship and the same was not used by public, as a place of religious worship, as a matter of right. They have further stated that a dispute arose subsequently among the appellants 1 to 6 and the deceased seventh plaintiff and others regarding the hereditary trusteeship and the management, which resulted in filing a petition under Section 63-A of HR & CE Act, before the Deputy Commissioner, HR & CE and numbered as O.A.No.14 of 1983 and the seventh plaintiff was initially respondent in the application. While the proceeding was pending, the second respondent herein appointed the first respondent as Executive Officer, without giving notice to the Hereditary trustees and without assigning any reason by his proceedings in R.D-is 119622/82 dated 16.12.1982. 3.According to the appellants, subsequently the first respondent herein was also impleaded as a respondent in O.A.No.14 of 1983 and the Deputy Commissioner, H.R & C.E., second respondent herein, dismissed the application on 14.10.1985 without providing opportunity to the appellants, for examining their witnesses. Thereupon the appellants 1 to 6 preferred appeal in A.P.No.38 of 1986, before the Commissioner of HR & CE, the third respondent herein. However, the third respondent dismissed the appeal on the ground that it was vexatious application/appeal, based on untenable grounds. Subsequently, the appellants filed the statutory suit under Section 70(2) of the HR & CE Act, seeking a decree to declare that the appellants are hereditary trustee of Sengaliamman Temple, Sembilivaram Village, Ponneri Taluk and for other relief. 4.The contention of the respondents is that Arulmigu Senkaliyamman Temple does not belong to the appellants family and the same is not a private temple as stated by the appellants. The first respondent in his written statement has denied that the lands in S.No.32/4 11 cents and in S.No.29/3 16 cents and totally of 27 cents, do not belong to the appellants' family. According to the first respondent the land after the sub division of 16 cents in S.No.29/3 stands in the name of the temple and that the temple has always been a public temple, used by the public as a matter of right, by all communities and that the temple was https://hcservices.ecourts.gov.in/hcservices/ constructed with the contribution of the public and not by the appellants' family members. According to the respondent even as per the copy of the partition deed of the appellants, dated 21.12.1959, the lands in S.No.32/4 and S.No.29/3 were stated as gifted to the temple and therefore the land became the property of the Temple. The temple was notified under Section 46(1) of HR & CE Act with effect form 01.07.1979 as it was having an income of more than Rs.20,000/-per year. The appellants 2 to 6 were appointed by the HR & CE Department as non- hereditary trustees by turn. 5. According to the respondents, neither the appellants nor their ancestors were in exclusive possession and enjoyment of the temple and the Assistant Commissioner, HR & CE by his proceedings No.4256/82 dated 14.10.1982, had issued charge memos to the non-hereditary trustees for misappropriation and for submission of false accounts. According to the first respondent, the second appellant had deposited only Rs.9,050/- in the Bank though the collection was at Rs.34,450.19, in the fasli 1390 and in the turn of functioning as trustees the appellants 2 to 4 also committed misappropriation, by submitting false accounts to the authorities. Hence, the Assistant Commissioner directed the trustees to show cause within 15 days as to why the loss to the temple should not be recovered from them, under Section 33(1) of the Act and asked them to show cause within seven days as to why an executive officer should not be appointed. Subsequently, the Commissioner, the third respondent by his proceedings in R.D-is 119622/82 dated 16.12.1982 appointed Thiru.Pattabi Subramaniam as Executive Officer, as the trustees had failed to show cause for about two months against the grave charges levelled against them. Aggrieved by which the appellants 1 to 6 filed W.P.No.1783 of 1983 for quashing the order appointing the Executive Officer, but the same was dismissed as withdrawn. Subsequently, the appellants filed another W.P.No.3626 of 1983 dated 06.04.1983 for the same relief against the same respondents which was also dismissed. 6.The appellants did not file any application under Section 47 of the Act to set aside or modify the order of appointing them as non- hereditary trustees. According to the respondents the appellants have accepted their stand as non-hereditary trustees of the suit temple. 7.The appellants had also filed O.P.No.83 of 1980 before the second respondent seeking for a declaration that the temple is not a religious institution under the Act and to appoint them as hereditary trustees. The said application was subsequently dismissed for default. For the same relief O.P.No.14 of 1983 was filed by the appellants by impleading the seventh plaintiff as respondent. The first respondent, after his appointment as Executive Officer, filed an application and brought himself on record as second respondent. No oral evidence was let in on the side of the appellants however, Exs.A1 to A5 were marked by consent. The Inspector of HR & CE was examined as Court witnesses and his report was marked as Ex.C1. Considering the pleadings, evidence https://hcservices.ecourts.gov.in/hcservices/ and other materials, the Deputy Commissioner, the second respondent herein had dismissed the O.P.No.14 of 1983 on 14.10.1985. According to the respondent, on the date of the petition the appellants were not in a position and management of the temple, much less as hereditary trustees. 8.The appellants filed W.P.No.8216 of 1983 to quash the order of the Assistant Commissioner and direct him to allow them to function as members of Tirupani Committee. However, the writ petition was dismissed on 07.09.1983 even at the admission stage. The Rajagopuram at 20 feet height was constructed by spending huge amount of public contribution. According to the respondent, the appellants filed the suit suppressing the fact of the proceedings initiated against them and that they cannot claim 27 cents of land which was gifted to the temple. The contention of the respondents is that the suit temple cannot be construed as a private temple. The appellants have not filed any application under Section 47(3) of the Act, to set aside or modify the order passed by the respondents, appointing them as non-hereditary trustees. 9.The short point for determination in this appeal is whether the order of the third respondent dated 16.09.1988 in A.P.No.38 of 1986 has to be set aside, whether the appellants are entitled to be appointed as Hereditary trustees of Senkaliyamman Koil in Sembilivaram Village. 10.Mr.N.R.Anantha Ramakrishnan, learned counsel appearing for the first respondent contend that the there is no evidence to show that the ancestors of the appellants herein, were hereditary trustees of the suit temple at any point of time. Further, it is an admitted case that the appellants were appointed only as non-hereditary trustees of the suit temple and that the same was not objected to by the appellants. Subsequently, they were removed and the first respondent/Executive Officer was appointed to manage the temple, since the appellants had not submitted their explanation against the grave charges of misappropriation and mismanagement of the suit temple. 11.Mr.V.Nicholas, learned counsel appearing for the appellants would contend that the appointment of Executive Officer by the Commissioner, HR & CE is against Section 45(1) of the Tamilnadu Hindu Religious & Chairtable Endowment Act, Act 22 of 1999. In support of his contention he relied on the decision of the Division Bench of this Court in The Commissioner, HR & CE (Admn.) Department, Madras-34 vs. K.Jothiramalingam and another reported in 1986 (II) MLJ 334. As per the aforesaid decision, this Court has held that appointment of Executive Officer by Commissioner of HR & CE, without notice to the hereditary trustee is against Section 45 of the Act. 12. As per the facts of the aforesaid case, the temple was being managed by Hereditary trustees and Executive Officer was appointed by the Commissioner HR & CE, even without notice and without hearing the hereditary trustee. This Court in the above cited decision, held, that https://hcservices.ecourts.gov.in/hcservices/ the power vested in the Commissioner, under Section 45(1) of the Act, being a very drastic one, which has to be exercised cautiously, reasonably and fairly as the exercise of such power may even result in the effective elimination of the hereditary trustee from management and administration of the Institution. 13.In the decision in Chettimai C. Nanjappa Chettiar(Decd.) and another vs. S.N.Kuppuswami Chettiar and others reported in 1986(2) MLJ 464 it was held that relinquishment or release by person in office has no legal consequence and the person entitled to succeed can ignore such release or relinquishment. It is not in dispute that hereditary trusteeship is not a property within Article 79{1)(f)} of the constitution and the hereditary trustee succeeds to the office, as of right and in accordance with rules of succession. 14.In the decision reported in Ranganatha Pillai and 11 others vs. The Commissioner for Hindu Religious and Charitable Endowments, Administration Department, Madras -34 1979 (2) MLJ 23, it was held that; "That the definition of 'hereditary trustee' in Section 6, clause (ii) of the Tamil Nadu Hindu Religious and Charitable Endowments Act is very wide in its amplitude. Hereditary trustee is not to be understood as from father to son or son to his son. Having regard to the comprehensive definition, it is enough if a usage is established for a long number of years evidencing exercise of hereditary trusteeship of a family." 15.Mr.N.R.Anantha Ramakrishnan, learned counsel for the first respondent relied on the decision in Radhakanta Deb and another, vs. The Commissioner of Hindu Religious Endowments, Orissa reported in AIR 1981 SC 798 and submitted that the appellants are not entitled to claim hereditary trusteeship, on the facts and circumstances of this case. The Full Bench of the Honourable Apex Court has held in the decision as follows: The following tests may provide sufficient guidelines to determine on the facts of each case whether an endowment is of a private or of a public nature: (1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right; (2) The fact that the control an management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; (3) Where, however, a document is available https://hcservices.ecourts.gov.in/hcservices/ to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was a private nature;(4)Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment. 16.In the instant case, as contended by the learned Special Government Pleader appearing for the respondents 2 and 3, there is no evidence available on record to show that the founder of the temple was the ancestors of the appellants and were hereditary trustees. The sixth appellant, who was examined as P.W.1 before the Trial Court has admitted in his cross examination that the temple was taken over by HR & CE Department on 01.07.1979, and the appellants were only non-hereditary trustees of the temple, appointed by the Commissioner, HR & CE. He has further admitted in his evidence that even in the year 1962, as per the invitation of "Bramorchavam" it has been made clear that various community people viz., Naidu, Chettiar, Josier and others had been contributed funds for the construction of the temple. Ex.A20, marked through P.W.1, would also show that one Natesa Chettiar, Kuppusamy Chettiar, Subramania Josier, Ragavan Mastri were also stated as 'Uppayatharagal'. It has been admitted that the writ petition filed by the appellant in W.P.No.1783 of 1985 challenging the appointment of the first respondent herein Executive Officer, was dismissed by this Court. According to the learned counsel for the respondents, subsequently another writ petition was also filed in W.P.No.3626 of 2005 and that was also dismissed. P.W.2 has admitted in his cross examination that the villagers used to worship the deity in the temple. As per the evidence of P.W.3, for worshiping the deity in the Temple, there is no need for the general public to get permission from the appellants. Therefore, Public worship is a matter of right in the Temple. 17. Therefore, in the light of the ruling of the Honourable Apex Court, in the aforesaid decision reported in AIR 1981 SC 798 and the evidence of the appellants' witnesses, it is clear that the temple buildings were constructed and 'Brammorchavam' was performed with the contribution of the public. Further, against the order passed in the writ petition, no appeal has been preferred by the appellants. Therefore, the suit temple cannot be construed as a private temple belongs to the appellant. On the facts and circumstances, of this case, the plaintiffs were appointed by The Commissioner, H.R.& C.E. only as non-herediatary trustee. https://hcservices.ecourts.gov.in/hcservices/ 18.It is also not in dispute that show cause notices were issued by the Assistant Commissioner, H.R. & C.E., on the allegation of misappropriation and mis-management of the temple. But, admittedly, no reply was submitted by the appellants within the time limit stipulated as there is no dedication of property to manage and maintain the temple. It has been admitted that the temple is mainly based on public contribution. However, the trustees who were appointed by the Commissioner, H.R.& C.E. had deposited only a portion of the collected amount in the Bank account. In the cross examination, it was put to P.W.1, that Ramachandra Naidu who was appointed as trustee had collected Rs.31,379.10ps, from the public as contribution. However, he had deposited only Rs.7,637/- in the temple account. Similarly the other appellants have also not deposited the entire money collected from the public, into the Bank account of the temple. All these facts were raised even in the written statement by the respondents. However, there is no justifiable defence from the appellants for the misappropriation of public money or mismanagement of the temple. Under such circumstances, the appellants are not entitled to claim to be herediatary trustees of the suit temple. 19. On the facts and circumstances, this Court is of the view that there is no error or infirmity in the impugned Judgment and Decree to be interfered with. In the result, confirming the judgment and decree rendered by the Court below, the appeal is dismissed. However, there is no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Smi To, 1.The Subordinate Judge, Tiruvallur. 2.The Record Keeper, V.R.Section, High Court, Madras. 1 cc To Mr.N.R.Anantharamakrishnan, Advocate, SR.4826. 1 cc To Mr.V.Nicholas, Advocate, SR.8745. 1 cc To The Government Pleader, SR.8720. A.S.No.302 of 1997 NG(CO) RVL 24.03.2008 https://hcservices.ecourts.gov.in/hcservices/