Hatti Sitharamamma and Another vs Deputy Commissioner for Hindu Religious Charitable Endowments, Masulipajam

Bhimasankaram, J.—The petitioners who are two in number are hereditary trustees of Sri Sadasiva and Sri Ramalingeswara Swamy Temples situate in Kunchavaram village, Tenali Taluk, Guntur District. They were served by the Deputy Commissioner, Hindu Religious and Charitable Endowments, Masulipatnam with a notice dated 15-7-1955 purporting to be issued u/s 45 (2) of the Madras Hindu Religious and Charitable Endowments Act (Act XIX of 1951), hereinafter referred to as the Act, by which they were called upon to submit their explanations to certain charges framed against them. Pending enquiry, by an order dated 5-10-1955 they were placed under temporary suspension and one Pillutla Sitaramasastry was. appointed to discharge the functions of the trustees of the temples until further orders and he was asked to take charge, of the properties belonging to them.

The petitioners appeared before the Deputy Commissioner, Hindu Religious and Charitable Endowments, who is the respondent to this petition, on several dates to which the enquiry stood adjourned. The enquiry was still pending however before the Deputy Commissioner when on 24-2-1956 they filed the present petition under Article 226 of the Constitution seeking the issue of a Writ of Prohibition or any other appropriate Writ or order or direction restraining the respondent from proceeding with the enquiry. They challenge the jurisdiction of the respondent to conduct the enquiry on the following grounds:

Firstly it is submitted that the office of hereditary trusteeship is by itself property within the meaning of Article 19 (1) (f) of the Constitution as ruled in Kidangazhi Manakkal Narayanan Nambudiripad and Others Vs. State of Madras and Another, and that the provisions of Sections 45 and 46 of the Act in so far as they apply to hereditary trustees are repugnant to that provision. It is also alternatively contended that even if hereditary trusteeship is not an office, a trustee has a right to hold property within the meaning of that sub-clause of the article and is protected by it. Secondly, it is argued that there is an unjustifiable discrimination between trustees of temple property and trustees of mutts.

While Section 52of the Act enacts that the Commissioner or any two or more persons having interest and having obtained the consent in writing of the Commissioner may institute a suit in a Civil Court to obtain a decree for removing the trustee of a math or a specific endowment attached to a math u/s 45, the Commissioner is empowered to suspend, remove or dismiss any hereditary trustee of a temple and a trustee so Suspended, removed or dismissed is debarred from seeking redress in a court of law by the exclusion of the jurisdiction of a Court "except under and in conformity with the provisions of the Act". This it is said is violative of the equality rule embodied in Article 14of the Constitution.

The second of these contentions is easily composed of. In the first place, as pointed out by learned Government Pleader, this ground of objection is not mentioned in the affidavit filed in s(sic) port of the petition. It is, therefore, not open the petitioner to raise an argument of this chapter for the first time at the stage of the hearing the petition. Moreover, it is well-recognised (sic) the position of a trustee of a math is in one important particular different from the position o(sic) trustee of a temple. A trustee of a temple no beneficial interest in the property belonging the temple and of which he is the trustee. In AIR 1922 325 (Privy Council) the Privy Council, speaking of a dharmakartha (sic) temple, observed as follows:

This is in truth the legal equipollent to (sic)tee. The position of dharmakartha is not tha(sic) a shebait of a religious institution, or of the (sic) of a mutt. These functionaries have a much hi right with larger power of disposal and administration, and they have a personal interest of a bifacial character.

In the very learned judgments delivered Vidyapurna Tirtha Swami v. Vidyanidhi T Swami, ILR 27 Mad 435 (C) the distinction bet(sic) those functionaries is explained. But a dha(sic) kartha is literally and no more than the manage a charity, and his rights apart it may be in ce(sic) circumstances from the question of personal port, are never in a higher legal category that of a mere trustee.

In the recent case of The The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., their Lord of the Supreme Court, noticing this difference. the following observations:

As regards the property rights of a Math(sic) pati, it may not be possible to say in view c(sic) pronouncements of the Judicial Committee, (sic) have been accepted as good law in this c(sic) ever since 1921, that a Matadhipati holds the property as a life-tenant or that his position is (sic)lar to that of a Hindu widow in respect to her husband''s estate or of an English Bishop hoiding benefice. He is certainly not a trustee in the sense. He may be, as the Privy Council says, manager or custodian of the institution who has (sic) charge the duties of a trustee and is answer such; but he is not a mere manager and it not be right to describe Mahanitship as a mere A superior of a math has not only duties t(sic) charge in connection with the endowment b(sic) has a personal interest of a beneficial ch(sic) which is sanctioned by custom and is much than that of a shebait in the de-butter property, held by a Full Bench of the Calcutta High Vide Manohar v. Bhupendra, ILR 60 Cal 452: 1932 Cal 791 (FB) (E) that shebaitship its property, and this decision was approved of Judicial Committee in AIR 1936 318 (Privy Council) and a(sic) AIR 1943 89 (Privy Council) . The effect of the (sic) decisions, as the Privy Council pointed out last case, was to emphasise the proprietary (sic) in the shebaiti right and to show that though (sic) respects an anomaly, it was an anomaly to be (sic) having been admitted into Hindu Law from an ear(sic) date. This view was adopted in its entirety by this Court in Angurbala Mullick Vs. Debabrata Mullick, and what was said in that case respect to shebaiti right could, with equal propriety, applied to the office of a Mahant. Thus in the con(sic)tion of Mahantship, as in Shebaitship, both the (sic)ments of office and property, of duties and personal (sic)arest are blended together and neither can be de(sic)aed from the other. The personal or beneficial (sic)rest of the Mahant in the endowments attached an institution is manifested in his large powers disposal and administration and his right to create (sic)vative tenures in respect of a similar character (sic)st the office of the Mahant with the character proprietary right which, though anomalous to the extent, is still a genuine legal right.

(sic)n they proceeded to make an observation which particularly relevant to both the points now (sic)ht to be made for the petitioners. They ob(sic)e:

There is no reason why the word "Property'''' (sic)sed in Article 19 (1) (f)of the Constitution, could not be given a liberal and wide connotation should not be extended to those well-recognise types of interest which have the insignia or characteristics of proprietary right. As said above, ingredients of both office and property, of duties personal interest are blended together in the (sic)s of a Mahant and the Mahant has the right (sic)joy this property or beneficial interest so long (sic)e is entitled to hold his office. To take away beneficial interest and leave him merely to the (sic)arge of his duties would be to destroy his character as a Mahant altogether. It is true that beneficial interest which he enjoys is appurte(sic) to his duties and as he is in charge of a pub(sic) constitution, reasonable restrictions can always be (sic)d upon his rights in the interest of the public, the restrictions would cease to be reasonable if are calculated to make him unfit to discharge duties which he is called upon to discharge. A (sic)nt''s duty is not simply to manage die tempo(sic) (sic)s of a math."

(sic) deal with the relevancy of these passages to first point later. So far as the 2nd point is (sic)rned, it may be noted that a clear lin(c) of (sic)tion between the office of a mere trustee, such dhannakartha, and that of a mahant or a she(sic)s brought out in these passages. A temple (sic) it may be said, has only duties while the (sic) of a math has both duties, an? rights. The (sic) excerpt makes it also clear that although he a beneficial interest in the properties belong(sic) the institution being a trustee in charge of (sic)lic institution, a matadhipati can be subject(sic) restrictions placed upon his rights in the pub(sic) (sic)erest. It is thus clear first, that the Legislature could be right in dealing with persons falling (sic)h of these categories on a different foot(sic) (sic)d secondly that what may well be consider(sic) be unreasonable restrictions in the case of a (sic)pathi may well be considered reasonable in (sic)e of a mere trustee. I observed in a recent (sic)nt in W. P. No. 765 of 1955 Andhra (I) as my opinion, the standards of reasonableness (sic)rd to restrictions must vary with the nature property held and the nature of the right by it is held and that in cases where a per(sic) 3 Andh. Pra. D.F./21 son holds property for the benefit, so to say, of the public, (that is, as a trustee), interference with, it in the public interest may be held justifiable and therefore, reasonable, on grounds which may not be considered reasonable where interference is sought with property in which the person holding it has a beneficial interest. In other words, what may be unreasonable interference when such interference concerns purely private property may be reasonable when it relates to property which in one sense belongs to the public''''.

I, therefore, think that the Legislature cannot be charged with discrimination in dealing differently with a hereditary trustee of a temple and the trustee of a mutt. On this reasoning also, apart from the fact that it is not open to the petitioner to raise this point, the petitioner''s second contention must fail.

I shall now turn to the first submission. It (sic)is true that in 1953-2 Mad. LJ 699: Kidangazhi Manakkal Narayanan Nambudiripad and Others Vs. State of Madras and Another, Ayyar J. (with the concurrence of the learned Chief Justice) held as a Judge of the. Madras High Court that "trusteeship, where hereditary is in the nature of property". He also pointed out that the word ''hold'' in Article 19 (1) (f) of the Constitution is wider in its significance than the word ''enjoy'' and trustees who are in management of religious endowments can be said to hold ''office'', - an obvious misprint, it seems to me, for the word ''property'' - though they may have no beneficial interest to enjoy.

In that case, the learned Judges were dealing with two contentions firstly that the whole Act was void as it vested the administration of religious endowments in a mere department of a State and secondly that the provisions of certain schemes framed under the Act inasmuch as they deprived hereditary trustees of substantive rights were repugnant to Article 19(1) (f) of the Constitution. They held that the impugned Act was not void on any ground and that the schemes framed under the Act would be valid "except in so far as they operated to abridge the rights of the hereditary trustees in a manner obnoxious to Article 19 (1) (f)".

They directed that the various petitions under Article 226 of the Constitution with which they have dealing should be posted for further hearing on the merits in order to examine how far the several schemes required to be suitably modified in order that they may not be obnoxious to Article 19(1)(f). Sections 45 and 46 of the Act, the validity of which is now in question before me were not dealt with by the harried Judges separately.

Nor they were dealt with by the Supreme Court in the decision cited above because their Lordships were there concerned with a mutt and not a temple. But it is argued that die decision of the Supreme Court in Mahant Sri Jagannath Ramanuj Das and Another Vs. The State of Orissa and Another, supports the contention of the petitioner on this point. In that case, the Supreme Court were dealing with the Orissa Hindu Religious Endowments Act (IV of 1939) which was very much on the same lines as the Madras Hindu Religious Endowments Act, 1927 subsequently replaced by the Madras Act, XIX of 1951. Even there they did not deal with any provision similar to those of Sections 45 and 40 of the Act, now in question. However in dealing with sections 38and 39 of the Orissa Hindu Religious Endowments Act of 1939 relating to the framing of a scheme, they made the following observations upon which considerable reliance has been placed by the learned counsel for the petitioner:

''A scheme can certainly be settled to ensure due administration of the endowed property but the objection seems to be that the Act provides for the framing of a scheme not by a Civil Court or under its supervision but by the Commr. who is a mere administrative or executive officer. There is also no provision for appeal against his order to the Court. u/s 58of the Madras Act, although the scheme is to be framed by the Deputy Commissioner, an appeal lies against his order to the Commissioner in the first place. A party aggrieved by the order of the Commissioner again has a right or suit in the ordinary civil Court, with a further right of appeal to the High Court... We think that the settling of a scheme in regard to a religious institution by an executive officer without the intervention of any Judicial Tribunal amounts to an unreasonable restrictions upon the right of property of the superior of the religious institutions which is blended with his office. Sections 38 and 39 of the Act must, therefore, be held to be invalid.

In these observations, it is contended, the Supreme Court had laid down a test which should be applied to all cases of interference with religious institutions viz., that mere executive officers should not be allowed to interfere with religious institutions without resort being permitted to aggrieved persons to courts of law and that a statutory provision authorising such an interference must be struck down as an unreasonable restriction upon the lights of property. E do not, however, read this judgment in the way in which the learned counsel for the petitioner would read it. In that case the observations that the particular provisions in the Act amounted to an unreasonable restriction upon the right of property of the superior of the religious institution which is blended with his office shows clearly that their Lordships were dealing with a Mahant and his right of property.in the endowments belonging to the institution I may add that the decision in Kidangazhi Manakkal Narayanan Nambudiripad and Others Vs. State of Madras and Another, has not considered the difference noticed by the Privy Council in AIR 1922 325 (Privy Council) . It would be a question whether in view of that decision, the view that hereditary trusteeship by itself without any right of enjoyment in any property could be held to be ''property'' within the meaning of Article 19(l)(f) of the Constitution. One may also venture to doubt whether if the word ''hold'' is wide enough to include holding without the power of enjoyment. Every trustee who holds property whether he is a hereditary trustee or not - should then be held to be equally protected. I ventured to express these doubts in my earlier decision already referred to. But even proceeding on the footing that the observations of the learned Judges in that case are correct, I am prepared to hold that the power vested in the Deputy Commissioner and the Commissioner under Sections 45and 46 of the impugned Act is a reasonable restriction within the meaning of Article 19 (5)of the Constitution.

For these reasons, the writ petition fails and is dismissed with costs. Advocate''s fee Rs. 100/-.