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CASE NO.:

Appeal (civil) 5093 of 1998

PETITIONER:

Commissioner, Hindu Religious,and Charitable Endowment(Admn.), Madras & Anr.

RESPONDENT:

Vedantha Sthapna Sabha

DATE OF JUDGMENT: 07/05/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

A Division Bench of the Madras High Court by the

impugned judgment held that the respondent was entitled

to hold office of trusteeship in Sri Lakshmi Hayavadhana

Perumal Temple in Nanganallur, Saidaret Taluk as

hereditary trustee. The Commissioner of Hindu Religious

and Charitable Endowment and the Deputy Commissioner,

the appellants herein question correctness of the

judgment.

Background facts giving rise to the present appeal

need to be noted in some detail.

Respondent-Sabha filed an application under Section

63(b) of the Tamil Nadu Hindu Religious and Charitable

Endowment Act, 1959 (in short 'Act'), before the Deputy

Commissioner (appellant no.2 in the present appeal) for

declaration that the Sabha is hereditary trustee of the

religious institution. The application was dismissed by

the Deputy Commissioner. Since the dismissal was upheld

by the Commissioner (the appellant no.1 herein) against

the rejection of the application, the respondent as

plaintiff filed a statutory suit OS No.257/1981 before

Subordinate Judge, Chengleput. Present appellants as

defendants took the stand that the suit temple is a

public temple constructed out of the collections

including collections from the members of the Sabha and

the grant of funds from the Government, that it is not

for the benefit of Sabha members only but for the

benefit of the Hindu public at large, and thus the

temple is one covered under Section 6(20) of the Act.

The Trial Court rejected the claim of the plaintiff by

holding that it is not entitled to be declared as

hereditary trustee of the suit temple. At the same time

since the Sabha had initiated and taken all efforts to

construct the temple and manage it in the interest of

general worshipping public, it would be appropriate to

have one or more of the representatives of the Sabha, in

the Board of Trustees as the authorities may deem fit.

Aggrieved by that the plaintiff preferred an appeal (AS

No. 240/84) which was also dismissed by a learned Single

Judge of the Madras High Court. The learned Judge also

highlighted the difference inherently inbuilt in the

definition of 'hereditary trustee' in Section 6(11) and

'trustee' in Section 6(22) of the Act. Letters Patent

Appeal was filed by the Sabha in L.P.A. No. 275/1995

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which was allowed and the judgment therein is the

subject matter of challenge in the present appeal. The

Division Bench in the High Court was of the view that

the founder being the Sabha, the entire administration

of the temple is vested in the Sabha only consisting of

its office bearers and they alone are entitled to

administer the temple and its properties.

Case of the plaintiff in a nutshell is as follows:

The Sabha itself was formulated for the purpose of

constructing a new temple for the benefit of the members

of the said Sabha and the Sabha was registered under the

Tamil Nadu Societies Registration Act, 1975 (in short

the 'Societies Act'). The objects of the Sabha are to

promote spiritual pursuits of Vashistadvaitha philosophy

as propounded by Sri Bhagavath Ramanuja and Sri Vedantha

Desika, to conduct discourses and arrange for lectures,

to conduct classes in Vadas, Upanishads, Divyaprabandas

and Stothrapathas relating to Vashishtadvaitha faith and

philosophy, to work for cordial relationship and

understanding among persons having different religions

and also among persons practising different religions to

make representations to Government and other leading

religious institutions in connection with any religious

issue of public importance, to secure representations on

committees appointed by Government and other bodies

relating to the objects of the Sabha, to construct own

and maintain temples and other places of worship,

Mantapams and the like to publish magazines, journals

and other literatures; to establish and maintain

libraries and reading rooms and to organise seminars,

group discussions and conferences and raise charities,

fund for the purpose of giving charities, etc. The

objects of the Sabha consist of both religious and

secular, its main object was to construct a temple for

the exclusive worship by its members. The land where

the institution in question is situated, was donated by

one P.S. Srinivasan of St. Thomas Mount. Its total

extent is 1-3/4 grounds. The said P.S. Srinivasan is

also an active member of the Sabha. The members of the

Sabha collected nearly Rs.2 lakhs and constructed the

institution in question. The Sabha has also received a

sum of Rs.25,000/- from the appellants as Government

grant. The construction was commenced in the year 1968

and completed in the year 1972. Kumbabishegam was

performed during 1972 from and out of the collection

made amongst the members of the Sabha. The institution

in question has no property of its own. The day-to-day

affairs of the institution are being looked after by the

Secretary of the Sabha, who is being elected by its

members from time to time. The members of the Sabha used

to donate liberally for the maintenance of the

institution. The institution has not received any

contribution from outsiders either for its construction

or for its day-to-day maintenance. It is the personal

property of the Sabha consisting of over 120 members.

Since the institution is the personal property of the

Sabha, the Sabha has every right to manage and maintain

the affairs of the institution as its founder-cum-

hereditary trustee. The Sabha is represented by its

Secretary. A petition was filed under Section 63(b) of

the Act before the 2nd appellant for a declaration that

the respondent is the hereditary trustee of the

institution. That application was dismissed by the 2nd

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appellant, in O.A. No.69 of 1977. The evidence let in

and the materials placed before the 2nd appellant have

been analysed and considered elaborately to arrive at

the finding that the temple has been constructed and is

maintained thereafter also from funds mobilised from

public and, therefore, it is meant for Hindu worshipping

public as well. As against such dismissal, the

respondent filed A.P. No. 174 of 1978 before the 1st

appellant under Section 69(1) of the Act, which was also

dismissed by the 1st appellant. The reasonings

contained in those orders which are adopted by the

appellants for coming to the conclusion that the

respondent cannot be the hereditary trustee are said to

be baseless. The Secretary of the Sabha elected

periodically, it is asserted, is entitled to hold the

office of trusteeship in respect of the temple in

question. The trusteeship accordingly is claimed to be

only a hereditary one. Hence the suit.

The suit was resisted by the appellants as

defendants. According to them, the suit temple is a

public temple constructed out of public collections

including from the members of the respondent Sabha who

are members of the public. The institution is for the

purpose of Hindu public at large. It is not relevant to

consider the objects of the Sabha. The suit temple is

not for the exclusive worship of the members of the

respondent only. It is a temple as defined in Section

6(20) of the Act. In any event, the suit temple has been

dedicated to public for the benefit of the public. The

public used this temple as of right. The site has also

been taken on lease. Government grant of Rs.25,000/- was

also sanctioned for the construction of the temple. All

expenses for the construction of the temple and for

Kumbabishegam and the day-to-day expenses thereafter are

met out of public contributions as well as receipts from

Hundial installed in the temple.

According to the appellants, the allegation of the

respondent that the temple does not own any property is

not correct. Public at large, other than the members of

the respondent Sabha, have contributed liberally for the

construction and for day-to-day expenses after the

Kumbahishegam. It is not the personal property of the

members of the Sabha. The respondent has no right to be

declared as the hereditary trustee. There is a Hundial

in the suit temple and the public contributes liberally

in it. The petition filed by the respondent under

Section 63(b) of the Act has been duly considered by the

2nd appellant and was rightly dismissed by him, which

was confirmed on appeal by the 1st appellant. The

reasonings in both the orders are not liable to be set

aside. The respondent Sabha was never the hereditary

trustee of the temple in question and it cannot hold the

hereditary trusteeship. The temple is a public temple

and not owned exclusively by the respondent. The

Secretary of the respondent Sabha has no right to be

appointed as its hereditary trustee and the office of

trusteeship cannot be claimed to be an hereditary one.

There is no cause of action to file the suit and the

cause of action claimed is false. There is a provision

in the bye-laws of the respondent Sabha that they can

wind up the Sabha, which clause in the bye-laws will

clearly show that the trusteeship is not at all

hereditary. "Hereditary trustee" has been defined under

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Section 6(11) of the Act as trustee of the religious

institution, succession to whose office devolves by

hereditary right or is regulated by usage or is

specifically provided for by the founder so long as such

scheme of succession is in force. None of the

requirements of this provision is satisfied in the

present case and hence the suit was liable to be

dismissed with costs.

The Trial Court framed the following issues:

"1. Whether the order of the Ist

defendant is liable to be set aside?

2. To what relief?"

It dismissed the suit observing that taking into

consideration the efforts taken by the members of the

Sabha in constructing the temple by contributing and

also by collecting donations from the public at least

one of the members of the plaintiff-Sabha can be

appointed as trustee of the said temple. It is for the

defendants to decide as to which one or more of the

members of the Sabha can be appointed as trustee of the

said temple.

Aggrieved by the judgment and decree of the trial

Court, plaintiff (respondent No. 1 herein) preferred an

appeal before the High Court and learned Single Judge

dismissed the appeal holding that though the institution

was founded by the appellant-Sabha which is a body of

persons, it was from collections and contributions from

public also and that the same is meant for all Hindu

worshipping public, and that there was no acceptable

ground for declaring it as hereditary trustee. The

Division Bench of the High Court by the impugned

judgment held in view of the admitted position that

Sabha was founder of the Temple, the only other question

which needed to be answered was whether a body of

persons/society or office bearers of the Sabha can be

recognised as hereditary trustee or a trustee of the

temple. The aforesaid question was answered in the

affirmative with reference to the fact that the entire

administration of the temple vis-`-vis of the Sabha

which consists of office bearers and members of the

Sabha/society alone are entitled to administer the

temple and properties which are also vested with them

either jointly as trustees or co-trustees. Setting aside

the judgment of the present appellant No.2 as confirmed

of the present appellant No.1, it was declared that the

respondent-plaintiff was entitled to hold office of

trusteeship as its hereditary trustee.

In support of the appeal, Mr. K. Ramamoorthy,

learned senior counsel submitted that the principles

governing the appointment of hereditary trustee were not

kept in view. Office of the hereditary trustee is in the

nature of property and where by efflux of time vacancy

arose there can be no succession and that the principle

of heredity will not arise. The common feature in

hereditary trusteeship is succession by hereditary right

or where the succession is regulated by usage or is

specifically provided for by the founder, as long as

such provision of scheme is in force. Undisputed

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position is that members of the public also contributed

for construction of the temple besides Government grant

and there being no details as to how much was

contributed by the founder and how much by the public it

was not permissible to hold that there was scope for the

Sabha being the hereditary trustee. The finding recorded

that money was collected for construction of the temple

and that it was a public temple was not disturbed.

Whether a corporate body or a group of persons can be

appointed as hereditary trustee is really of no

consequence in the factual background of the present

case, and that, therefore, the Division Bench was not

right in allowing the claim of the respondent, as prayed

for.

Clause (11) of Section 6 of the Act defining

"hereditary trustee" has three limbs. Sections 41 and

42 of the Societies Act have great relevance on the

question of hereditary trusteeship. Bye-law (23) also

throws considerable light on the controversy. There is

no question of any usage being pressed into service,

when the temple is constructed first. The society itself

was formed in 1967 and therefore the question of any

long usage being in existence does not arise.

In response, learned counsel for the respondent

submitted that merely because contributions had been

received from the public, that does not make

contributors co-founders. Unnecessary stress was laid by

learned Single Judge on the consequences of winding up

of the Sabha. The founder is known as a Sabha and the

management is with the Sabha's members themselves. There

is no dispute about this aspect. There was also no

hindrance or interference by the public in the

management and administration of the temple. The length

of management commensurate from the time of its

construction is itself suggestive of long usage.

Trusteeship is linked with management and there being no

legal bar on a body becoming a trustee the Division

Bench was correct in holding that the Sabha was a

hereditary trustee. If one looks at Clause (22) of

Section 6, the Sabha as a whole is a trustee and with

reference to Clause (11) of Section 6 it can be said

that the Sabha is a hereditary trustee. The founders

automatically were vested with trusteeship. It is

nobody's case that it was an elected body, and

therefore, the contributors and the Government cannot be

said to have status as its founders. Sabha is not a

corporate body but is a compendium of names. It is not

the case of the respondent that any particular member

was a trustee. It was the compendium which was the

trustee acting through its Secretary and, therefore,

rightly the Division Bench held that present respondent

No.1 was a hereditary trustee.

Section 6 of the Act which is the pivotal provision

so far as relevant reads as follows:

"Section 6(11)- 'hereditary trustee'

means the trustee of a religious

institution, the succession to whose

office devolves by hereditary right or

is regulated by usage or is

specifically provided for by the

founder, so long as such scheme of

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succession is in force.

6(20)-'temple' means a place by whatever

designation known used as a place of

public religious worship, and dedicated

to, or for the benefit of, or used as of

right by, the Hindu community or of any

section thereof, as a place of public

religious worship.

6(22) 'Trustee' means any person or body

by whatever designation known in whom or

in which the administration of a

religious institution is vested, and

includes any person or body who or which

is liable as if such person or body were

a trustee."

On consideration of the rival submissions, we feel

that the approach of the Division Bench of the High

Court was on erroneous premises and the conclusions

appear to have been arrived at overlooking certain vital

and basic underlying factors, the character of the

temple as well as operation and impact of the provisions

of the Act on the temple and the claims made in relation

thereto. The basic question that arose was not whether a

body of persons or society or office bearers of a Sabha

can be recognised as hereditary trustee or a trustee of

the temple. What was needed to be adjudicated was

whether on the facts as also the prevailing and

governing position of law, particularly the Act in

question, the claim for 'hereditary trustee' was

established or could be sustained.

A bare reading of definition of "hereditary

trustee" brings into focus three important aspects; i.e.

first, a trustee of a religious institution the

succession to which is devolved by hereditary right; the

second category is that succession can be regulated by

usage and the third category is where succession

relating to the office of trustee is specifically

provided for by the founder and that too so long as the

scheme of such succession is in force. In contrast to

the criteria engrafted in Section 6(22), the definition

in Section 6(11) lays special and specific emphasis on

the succession to the office of trustee of a religious

institution devolving by anyone of the three methods or

manner envisaged therein. So far as the case on hand is

concerned, the statutory authorities specially

constituted under the Act have held the temple to be for

all the worshipping Hindu public and not confined to the

members of the Sabha only having regard to the manner in

which funds were collected and the manner in which the

public invitations and declarations have been made and

day-to-day administration of the temple is being carried

on from inception. Though there has been an application

for declaration of the office of trustee of the

religious institution to be an hereditary one, no

application under Section 63(a) for a declaration as to

whether the temple in question is a religious

institution used as a place of public religious worship

and dedicated to or for the benefit of or used as of

right by the Hindu community or section thereof was

filed. Even after, specific findings by the statutory

authorities as to the character of the institution

conspicuous omission in this regard disentitled the

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respondent-Sabha to incidentally or vaguely project that

it is for the members of the Sabha only. Once it is a

religious institution within the meaning of the Act, the

provisions of the Act have full force and effect and the

claim of the nature, unless substantiated as provided

for under the statute cannot be countenanced on certain

assertions made which was besides such statutory

provisions. This Court highlighted this aspect of the

matter in the decision reported in D. Srinivasan v.

Commissioner and Ors. (2000 (3) SCC 548).

The Act applies to all Hindu Public Religious

Institutions and Endowments. 'Religious Institution',

as defined at the relevant point of time meant a math,

temple or specific endowment and 'temple' meant a place

by whatever designation known, used as a place of public

religious worship and dedicated to or for the benefit of

or used as of right by the Hindu community or of any

section thereof, as a place of public religious worship.

'Trustee' meant any person or body by whatever

designation known in whom or in which the administration

of a religious institution is vested and includes any

person or body who or which is liable as if such person

or body were a trustee. In respect of a religious

institution, which has no hereditary trustee, the

competent authority concerned depending upon the class

of temple has been empowered under the provisions of the

Act to constitute also a Board of Trustees. 'Hereditary

trustee' has been defined to mean, the trustee of a

religious institution, the succession to whose office

devolves by hereditary right or is regulated by usage or

is specifically provided for by the founder, so long

such schemes of succession is in force. 'Non-hereditary

trustee' has also been defined to mean a trustee who is

not a hereditary trustee. Consequently, the office of

trustee, hereditary or non-hereditary though may have an

incumbent who occupies or holds the office of

trusteeship at a particular point of time or for a

period of duration it is only the manner or method by

which the incumbent concerned comes to occupy it that it

is decisive of the nature and character of it as to

whether it is hereditary or non-hereditary.

Prior to the 1959 Act, The Madras Hindu Religious

and Charitable Endowments Act 1951, occupied the field

from 1.10.1951 and came to be replaced by the 1959 Act.

The scope of meaning of the terminology 'hereditary

trustee' under the 1951 Act came up for consideration of

the Madras High Court as well as this Court. In ILR

1957 Mad. 1084=AIR 1957 Mad. 758 State of Madras v.

Ramakrishna Naidu, a Division Bench of the Madras High

Court had an occasion to exhaustively deal with the

position in the context of an ancient temple known as

Sri Parthasarathy Swami Temple, in Triplicame in Madras

city. The administration of the temple at the relevant

point of time was in accordance with a scheme framed by

the Madras High Court, which inter alia provided that

the management and affairs of the temple shall be

carried on by a body of dharmakartas under the

supervision and control of a Board of Supervision. The

dharmakartas were to be three in number, of whom one

shall be a Brahmin, one an Arya Vysia (Komatti) and one

a non-brahmin not Arya Vysia and the dharmakartas shall

hold office for a period of five years from the date of

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his appointment, the retiring dharmakartas being also

eligible for re-appointment, otherwise if so qualified.

The said dharmakartas shall be elected by person whose

names are included on the date of election in the list

of voters maintained at the temple, in terms of the

qualifications prescribed for being so enrolled as

voters and elaborate rules for the conduct of elections

have been also laid down in the scheme. When the period

of office of one of the dharmakartas by name Rao Bahadur

v. Ranganathan Chetty expired by efflux of time after

the commencement of the 1951 Act, though the vacancy had

to be under the scheme, filled up by election, the

Commissioner, Hindu Religious And Charitable Endowments,

passed an order in exercise of his powers under Section

39(i) of the 1951 Act, appointing one C. Subramaniam

Chetty as Trustee in the vacancy caused by the expiry of

the term of trustee of Sri V. Ranganathan Chetty. This

order came to be challenged in the High Court and a

learned Single Judge sustained the claim of challenge on

the ground that Sections 39 and 42 had no application,

as the trustees of the temple were hereditary trustees.

Those who challenged the appointment were not either the

outgoing trustee- V. Ranaganathan Chetty or his heirs or

successors but two thengalai worshippers interested in

the said temple. If the trustees of the temple are

hereditary trustees, Sections 39 and 42 had no

application and it is in that context the question that

was adverted to for consideration was \026 whether it is an

institution, which has a hereditary trustee or

hereditary trustees. After adverting to the definition

of 'hereditary trustee' in Section 6(9) of the 1951 Act,

which defined the same to mean the trustee of a

religious institution, succession to whose office

devolves by hereditary right or is regulated by usage or

is specifically provided for by the founder, so long as

such scheme of succession is in force. The Division

Bench specifically noticed the fact that the claim of

those who challenged the order of Commissioner was on

the ground that the office of dharmakartas was a

'hereditary' one and it was not on the basis that their

office devolved by succession or because succession to

their office has been specifically provided for by the

founder, but that the succession to the office "is

regulated by usage', which found favour of acceptance

with the learned Single Judge. The stand taken for the

State before the Division Bench was that, the phrase

'regulated by usage' must be read with the expression,

"succession to whose office" and when so read 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. It was observed that though

several schemes framed took notice of the usage and

embodied it in the scheme framed with such modifications

as the court deemed fit, it cannot be said that the

succession continued to be governed by usage when as a

matter of fact it was governed by the provisions of the

scheme and not by usage any longer.

Proceeding further, the Division Bench construed

the scope and purport of the definition 'hereditary

trustee', placing strong reliance upon the decision of

this Court reported in 1951 SCR 1125 (Angurbala Mullick

v. Debabrata Mullick) and AIR 1954 SC 606 (Sital Das v.

Sant Ram), and held therein as follows:

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"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 vs Sant Ram, the law is

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 the sense that

on the death of an existing mahant, his chela

succeeds 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 vs Radhakrishna Das a Division Bench

took the view that where succession to the

mahantship is by nomination by the holder in

office, it is not a hereditary succession.

Venkatasubba Rao, J., as 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., the other learned Judge, came to

the same conclusion on the following

reasoning:

"Where succession is by nomination by

the holder in office of his successor it

seems to me 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".

The present definition in Section 6, clause

(9), would, however, comprise even such cases.

It appears to us to be singularly

inappropriate to say that there is a

succession of A's office to another when on

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the efflux of the period for which A was

appointed there is a vacancy and B is elected

to that vacancy."

In AIR 1971 SC 2363 = 1970(1) SCC 4 (Sambudamurthi

Mudaliar vs. The State of Madras and another), this

Court had an occasion to construe Section 6 (9) and the

scope of the terminology 'hereditary trustee' and held

as follows:

"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 the 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 Sengunatha Mudaliar Community and so

the appellant must be held to be a trustee

within the meaning of Section 6(9) of the Act

19 of 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 Property Act, 1937, (1941 FCR 12) =

(AIR 1941 FC 72). 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

Behari, 63 Ind App 448 = (AIR 1936 PC 318) and

Bhabatatini v. Ashalata, 70 Ind App 57 = (AIR

1943 PC 89). Ordinarily a shebaitship or the

office of dharamakarta 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. Mukherjea J., in Angurbala Mullick

v Debabrata Mullick, 1951 SCR 1125 = (AIR 1951

SC 293) delivering the judgment of this Court

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observed:

"Unless, therefore the founder

has disposed of the shebaitship in

any particular manner \026 and this

right of disposition is inherent in

the founder \026 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 Ram, AIR 1954 SC

606 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 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. Radha Krishna Das, 51 MLJ 258 =

(AIR 1926 Mad 1012), 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.

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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.

4. But the election to the office of trustee

in the present case is for a fixed period of

one year and not for life. It is, therefore,

difficult to hold that the office of the

appellant is hereditary within the meaning of

Section 6 (9) of the Act. It is not possible

to say that there is a succession of A's

office to another when on the efflux of the

period for which A was appointed, there is a

vacancy and B is elected to that vacancy. It

is quite possible that for that vacancy A

himself might be re-elected because a retiring

trustee is eligible for re-election. The

possibility of A being the successor of A

himself is not merely an anomaly, it is an

impossible legal position. No man can succeed

to his own office. In Black's Law Dictionary

the word 'succession' is defined as follows:

"The devolution of title to

property under the law of descent

and distribution.

The right by which one set of

men may, by succeeding another set,

acquire a property in all the goods,

movables, and other chattels of a

corporation.

The fact of the transmission of

the rights, estates, obligations,

and charges of a deceased person to

his heir or heirs."

The view we have taken is borne out by the

reasoning of the Madras High Court in State of

Madras v. Ramakrishna, ILR (1957) Mad 1084 =

(AIR 1957 Mad 758)."

Thus, it could be seen that even in S. Mudaliar's

case (supra), the challenge was by a person who was

appointed only for one year and not for life and that

his claim before the Court, which fell for consideration

is not that he himself was a hereditary trustee but that

the trusteeship of the temple was 'hereditary' in

nature. This Court also approved the ratio of the

decision of the Division Bench of the Madras High Court

in Ramakrishna Naidu's case (supra). Consequently, the

distinction sought to be made of the decision of this

Court by a Division Bench of the Madras High Court which

decided the case in 1975(2) M.L.J. 178 - A.N. Ramaswamy

Iyer and Ors. v. The Commissioner H.R.& C.E. and

another, particularly para 11 is without any substance

or really any difference to so distinguish. The said

decision cannot be considered to lay down a correct

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proposition of law, in the teeth of the specific

declaration of the legal position made by this Court in

S. Mudaliar's case (supra). As long as there is no

provision by any founder for devolution of the office of

trusteeship by succession hereditarily, in or by anyone

of the mode or method envisaged it is futile to claim

that the temple has hereditary trustee or that the

management or administration of the affairs of the

temple is carried on by a hereditary trustee or that the

respondent is entitled for a declaration that it is the

hereditary trustee of the temple in question. In this

case no such provision has shown or found to exist, and

as a matter of fact the learned Single Judge in the High

Court found such provision to be conspicuously absent.

In Dr. Srinivasan's case (supra), this court

adverted to the definition of 'hereditary trustee' under

Section 9 (6) of the Madras Hindu Religious Endowments

Act, 1926 (Act 2 of 1927) as also Section 6 (9) of the

1951 Act and Section 6 (11) of the 1959 Act and taking

note of the change brought about by the 1951 and 1959

Acts respectively, it was held that, after the

commencement of the 1951 Act itself the definition of

'hereditary trustee' contained in Section 6 (9) therein

did not recognize a person who was nominated by other

trustees as hereditary trustees and that the same

position prevails under Section 6 (11) of the 1959 Act,

which also does not describe a person nominated by the

existing board to be called a hereditary trustee. It is

useful to refer to the observation made therein, as

hereunder:

"24. We, therefore, hold that if any trustee

has been nominated subsequent to the

commencement of the 1951 Act by the Board of

Trustees who were in office prior to the 1951

Act or by their nominees then such persons

could not be called "hereditary trustees"

within the meaning of sub-section (6) of

Section 9 of the 1951 Act. Similarly, if the

persons who were themselves not hereditary

trustees after the 1951 Act, either by

themselves or along with other hereditary

trustees after 1951, nominated trustees, then

such trustees would not be hereditary

trustees. The position is no different after

the 1959 Act.

26. This does not, however, mean that the

right conferred on the Board of Trustees,

whenever a vacancy occurs in the five places

created by Venkatarangaiah, is done away with

altogether by the 1951 Act or by the post-1951

Acts. It will be open to the nominated five

trustees in office, from time to time to

nominate fresh trustees whenever there is any

vacancy in these five offices of trustees.

Such persons can be trustees but cannot be

called "hereditary trustees". They will have

to be described as "non-hereditary trustees".

What their rights are will necessarily have to

be governed by the provisions of the statute.

We need not go into the question as to their

rights. Suffice to say that they are not

"hereditary trustees"."

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The authority to nominate or appoint or specify

periodically for a specified period even by a body which

had authority to do so would not make such office a

hereditary one so as to call such trustees 'hereditary

trustees' as defined under the 1951 or 1959 Acts. It is

the definite rules of succession and devolution by any

one of the three modes of succession envisaged in

Section 6(11) that could alone enable a claim of

hereditary trustee to be legitimately made.

Having regard to the conclusions arrived at supra,

the submissions made on the basis of the finding

recorded that the Sabha was the founder of the temple in

question or that as founder it had every right to

provide for the administration of the affairs and

management of the temple and its property, if any, and

for future management as well, pales into insignificance

and really does not call for our decision to determine

the question as to whether the Sabha could get itself

declared as `Hereditary Trustee' under the provisions of

the Act. Similarly, the question as to whether a body

could be a Trustee or constitute Board of Trustees also

is beside the point. Even, as a body \026 whether it could

claim to be a trustee or not, so far as in the case on

hand is concerned, it cannot, as held by us, claim to be

hereditary trustee.

No doubt, normally every donor contributing at the

time of foundation of a Trust cannot claim to become a

founder of the Trust, except in cases where all the

contributors of the Trust Fund become the founders of

the Trust itself inasmuch as a decision on the question

as to whether a person can be a joint founder, cannot be

made to rest merely upon the factum of contribution

alone unless the surrounding and attendant circumstances

proved in the case and subsequent conduct of parties

warrant such a finding. All these issues also seem to

be beside the real issue as to the hereditary nature of

the office claimed \026 which by no means could be

countenanced in law, in favour of the respondent-Sabha.

The analysis undertaken by learned Single Judge

seems to be correct. As noted above, Sabha itself came

into existence a few years before the declaration was

sought for by filing a suit by the present respondent.

The concept of long continuance and passage of time is

inbuilt in the expression 'usage' and the factual

position also in the present case does not enable the

Sabha to establish application of the usage concept.

That being so, the judgment of Division Bench of the

High Court is set aside and that of the learned Single

Judge is restored. The appeal is allowed with no order

as to costs.