Kalyanaraghavan and Another vs Deputy Commissioner Hindu Religious and Charitable Endowments (Admn.) Dept. and Another

Srinivasan, J.—One Rajabathar Mudaliar was previously the hereditary trustee of Sri Agastheeswarar and Sri prasarnnavenkatesaperumal

temples. His father had been the hereditary trustee before him. On certain charges framed against him, this Rajabathar Mudaliar was dismissed.

After his dismissal his wife Valli Animal sought to be appointed as the hereditary trustee as the next in line of succession, and as her claims were

not recognised, she moved this Court in Writ Petition No.'' 855 of 1958. This Court issued a writ of mandamus directing the commissioner to

recognise Valli Animal as the trustee in place of her husband Rajabathar. This Valli Ammal assumed office on 13-12-1960. The commissioner

thereafter purported to appoint an executive officer. One was so appointed on 15-''3 1961. The appointment of the executive officer was

questioned by a writ petition before this Court. But, finally, it appears that the proceeding for the appointment of an executive officer was dropped.

In April 1961, a series of charges were trained against Valli Annual herself notwithstanding that she had hardly been in Office as hereditary trustee

for four months. She was also placed under suspension and finally by order of the commissioner dated 19-4-62 she was dismissed from office.

Even after her dismissal, no. steps were taken by the: commissioner for appointing a person next in line to succeed to the office of hereditary

trustee. When the matter was accordingly brought before this Court in writ petition No. 668 of 1862, this Court directed that the commissioner

should give effect to Section 54(1) and consistent with its terms to take steps for proper administration of the institution.

It is stated that the present petitioner Kalyanaraghavan, the minor son of Rajabathar, is the next person entitled to succeed to the office of

hereditary trustee. After the dismissal of Valli Animal this minor through his father and natural guardian sought to get himself appointed. The Deputy

Commissioner however rejected the petition of the minor petitioner and proceeded to appoint a fit person to discharge the functions of a trustee u/s

54 (3) of the Act. It is this order of the Deputy Commissioner that is impugned in this present proceeding and it is contended that the appointment

of a person is not in conformity with the provisions of the Act as well as with the directions that were given by this Court in an earlier writ petition.

On behalf of the Deputy Commissioner, the earlier proceedings that have been set out, are admitted. It is stated in the counter affidavit that one

Jayalakshmi Animal has filed a petition before the commissioner for recognition of her claims to the hereditary trusteeship of the suit temples, and

that one Krishnamurthy has also filed a petition as the maternal uncle of the minor petitioner for being appointed as the fit person. It is stated that

the Deputy Commissioner on enquiring into the petition of the minor petitioner found that it was not feasible to appoint dismissed trustees as

guardians of the minor. It is also slated that since there is a dispute regarding the hereditary trusteeship of the temples, the Deputy Commissioner

thought it fit to appoint a fit person. It is claimed that the petitioner has filed an appeal before the Commissioner and that such appeal is pending.

The contention of the respondent Deputy Commissioner is that it is not safe to entrust the management of the temples in the hands of the father of

the minor, who is a dismissed trustee. Reliance is placed upon the fact that there is some dispute regarding succession to the office in supporting the

order of the Deputy Commissioner appointing a fit person.

The second respondent is the fit person appointed by the Deputy Commissioner. The contents of his counter-affidavit are not necessary to be

extracted.

It may be mentioned that during the earlier stages of the hearing, since the department purported to object to Rajabathar, or his wife Valli

Ammal, the parents of the minor, to function as guardians of the minor in the discharge of the duties of hereditary trustee as they are dismissed

trustees, a petition was filed by the grandfather of the minor, who himself had previously functioned as a trustee, to bring himself on record as the

guardian of the minor in order that the requirements of Section 54 might be fulfilled. This person has been brought on record in that capacity.

The short question that I have to consider is whether the Deputy Commissioner has the jurisdiction to appoint a fit person in the circumstances

of this case. Section 54 deals with the filling up of vacancies in the office of hereditary trusteeship. In the case of a permanent vacancy, sub-section

(1) lays down that the next in line of succession shall be entitled to succeed to the office. Sub-section (2) refers to a temporary vacancy in the

office caused by reason of the suspension of the hereditary trustee. Even in such a case, the section states that the next in line of succession shall be

entitled to succeed until the temporary disability ceases. Under sub-section (3) the Deputy Commissioner is competent to appoint a fit person to

perform the functions of the trustee in the following contingencies, (1) when a temporary or a permanent vacancy arises and there is a dispute

respecting the right to succession, (2) when such vacancy cannot be filled up immediately, (3) when the hereditary trustee is a minor and has no

guardian fit and willing to act as such or there is a dispute respecting the guardianship and (4) where the hereditary trustee is afflicted by

unsoundness of mind, or other mental or physical defect or infirmity unfitting him for the performance of the functions of the trustee. It is only in

these four classes or cases that the Deputy Commissioner can appoint a fit person. In the present case, that a permanent vacancy has arisen by the

dismissal of the last hereditary trustee is not denied, Tracing the succession from the last such dismissed trustee, it is not also in dispute that the

present petitioner, the minor, is entitled to succeed to the office. The claims put forward by certain other persons with regard to their rights to

trusteeship have not been adjudicated upon and as far as I can understand the position, they do not claim through the last holder of that office. The

maternal uncle of the minor who seeks appointment as a fit person can certainly have no claim unless it is a case where a fit person has necessarily

to be appointed, in which event the claim of the members of the family might have to be considered. Even so, it is doubtful whether the maternal

uncle of the minor will come within the scope of the expression ''members of the family'' of the trustee. Here is a case where there is a person

entitled to succeed to the office and the fact that he is a minor does not, as far as I can see from the section, deny him that right. A minor who is the

next in line of succession can accordingly be appointed as the hereditary trustee and quite obviously by reason of the fact that he is a minor, the

duties of the office will have to be discharged through his guardian. Minority is not placed in the same category as a disability that is referred to in

other parts of the section, which call for the appointment of a fit person. The fact that the person next in line of succession is a minor will not for

that reason alone empower the Deputy Commissioner to appoint a fit person. A fit person can be appointed only when the minor has no guardian

fit and willing to act as such.

A plain reading of the section will accordingly mean that there should be no person who is willing to come forward to act as guardian of the

minor. It may also be within the jurisdiction of the Deputy Commissioner to consider whether the guardian who comes forward is a fit person to be

such guardian. The expression ""as such"" in the context can only refer to the capacity of the person to function as a guardian.

Mr. Rajagopalachari, learned counsel for the second respondent, however attempted to argue that ''as such'' in the context must be taken to

indicate the fitness and willingness of the person to act as trustee. Grammatical construction of the section will not lead to that result. Nevertheless,

it is suggested that since the interest of the institution has to be safeguarded and that since in other parts of the section the performance of the

functions of the trustee is referred to, fitness in the context should also indicate fitness to perform the functions of the trustee. In the third and fourth

paragraphs of sub-section (3) fitness for performing the functions of a trustee is referred to in the context of a physical or mental infirmity of the

hereditary trustee, and where the disability of the hereditary trustee unfits him for the performance of those functions. Where a minor is concerned

when the law confers upon him the right to succeed to the office he is entitled to have the services or the functions of the trustee performed through

his guardian. To all intents and purposes, it is the minor that is performing the functions of the trustee though the agency through which the functions

are performed is that of a guardian. It would not be a proper construction of this phrase ""has no guardian fit and willing to act as such"" to fake to

mean ""has no guardian fit and willing to act as hereditary trustee"". The hereditary trustee is the minor himself and not the guardian. It follows

therefore that so long as there is a guardian fit and willing to act on behalf of the minor, it is not open to the Deputy Commissioner to appoint a fit

person under the last part of Section 54(3).

Mr. Rajagopalachari next argued that in the present case the guardians of the minor are his natural parents, both of whom had filled the office of

hereditary trustee at one time or other, but had been dismissed. It is contended that these persons would not be proper persons into whose hands

the performance of the functions of a trustee could be placed, It is suggested therefore that in order to give effect to the underlying intent of the

section fitness of the guardian to perform the functions of a trustee should also be had regard to. I am willing to accept this argument but not to the

extent of taking that interpretation as the proper one for the provision that I have referred to. It is in this context that the petition filed by the

grandfather of the minor who sought to be brought on record to protect the interest of the minor that required to be considered. In so far as he is

concerned, he is not a dismissed trustee and even Mr. Mohan for the Deputy Commissioner respondent was not able to state that he would not be

a proper person to function as the guardian of the minor in so far as the performance of the functions of the trustee is concerned. For the second

respondent however it was claimed that since the grand-father is not a natural guardian under the law, he cannot be recognised. It is true that

strictly speaking the grand-father may not be a guardian either under the Hindu Minority and Guardianship Act, or under the Guardians and Wards

Act. But if the expression fit and willing to act is even according to the arguments addressed before me intended to take in the fitness of the person

who appears as guardian to perform the functions of a trustee and such fitness is within the jurisdiction of the Deputy Commissioner to examine,

then this objection cannot possibly prevail. If the natural parents of the minor who are also on record as parties consent to the grandfather of the

minor functioning as the guardian of the minor, a third party cannot possibly have any objection and cannot be heard to have any objections to the

representation of the minor by his grand-father. As already stated no objection has been put forward on behalf of the commissioner against the

representation of the minor by his grandfather.

It follows that this is not a case where the petitioner minor has no guardian fit and willing to act as such. I may point out that the grandfather of

the minor himself presented a petition before the Deputy Commissioner. Apparently at that stage he put forward his claim to be appointed as a fit

person and that petition was dismissed by the Deputy Commissioner.

In the light of the facts as presented before me, I have no hesitation in holding that the order of the Deputy Commissioner in ignoring the claims

of the minor for hereditary trusteeship and in appointing a fit person cannot be supported. It is accordingly quashed. The Deputy Commissioner will

no doubt take proper steps to fill the post of the hereditary trustee by the appointment of the minor whose right to succeed to the office has not

been challenged in any way. There will be no order as to costs in this petition. The second respondent who has been appointed as the fit person

will continue to be in charge as such pending the early appointment of the minor through the proper guardian as the hereditary trustee.