R. Balasundaram and R. Gangadharan vs M. Ramalingam and Others

R.S. Ramanathan, J.—The plaintiffs in O.S. No. 131 of 1994, on the file of the Principal Sub Court, Nagapattinam, are the appellants

herein. They filed the suit for the relief of declaration, declaring them as hereditary trustees of ""Sri Mariamman Temple"", which is also called as

Mazhai Muthu Mariamman"" and for a direction, directing the defendants to put the plaintiffs in possession of the suit property and also to render

all proper accounts to the plaintiffs. The Trial Court, in and by its judgment and decree, dated 11.02.1999, dismissed the suit. Challenging the

same, this Appeal was filed.

The case of the plaintiffs/appellants, as stated in the plaint, is as follows:-

i) The suit was filed by one A. Ramalingam, the son of Ayyathurai Thevar.

During the pendency of the suit, he died and the appellants herein were brought on record as his legal heirs. i) Ramalinga Thevar, ii) Chidambara

Thevar and iii) Arumuga Thevar were brothers. Ramalinga Thevar, (hereinafter referred to as ''senior Ramalinga Thevar'') had two wives. Through

his first wife, he had a son, by name, Ayyathurai Thevar and through his second wife, he had another son by name, Muthusamy Thevar, whose

son, named M. Ramalingam, is the first defendant in the suit. Ayyathurai Thevar, born through the first wife of senior Ramalinga Thevar was given

in adoption to Chidambara Thevar, the brother of senior Ramalinga Thevar. The said Ayyathurai Thevar, (the adopted son of Chidambara Thevar)

had three sons, viz., i) Chidambaram ii) A. Ramalingam/first plaintiff (hereinafter referred to as ''junior Ramalingam'') and iii) Subramanian and

Subramanian died, when he was seven months old and Chidambaram, died without leaving any issues and his wife also died. Therefore, junior

Ramalingam/first plaintiff was the only legal representative to succeed to the estate of Ayyathurai Thevar. Muthusamy Thevar, born through the

second wife of senior

Ramalinga Thevar, died in the year 1981, leaving behind the first defendant as his legal heir.

ii) It was further stated in the plaint that Ayyathurai Thevar, founded ''''Arulmighu Mariamman Temple'''' in Velankanni Village, Nagapatinam Taluk,

which is also called as ""Mazhai Muthu Mariamman"" and he was in possession and management of the said Temple. While Ayyathurai Thevar, was

in a sound and disposing state of mind, he executed a registered Will, dated 30.03.1929 and that was his last Will and Testament. As per the Will,

he bequeathed all his properties in favour of the first defendant and appointed Muthuswamy Thevar, viz., the father of the first defendant as

guardian to look after the affairs of the Temple, till his son Chidambaram attains majority. After the death of Ayyathurai Thevar, his son

Chidambaram succeeded to the trusteeship. As Chidambaram was minor, the father of the first defendant, viz., Muthuswamy Thevar was acting as

trustee and on the death of Chidambaram, his brother junior Ramalingam/first plaintiff succeeded to the trusteeship, as he happened to be the only

legal heir of Ayyathurai Thevar, under the Hindu Law.

iii) It was further averred in the plaint that at the time of death of Chidambaram, his brother, junior Ramalingam was young and novice in the

matters of administration of the Temple and hence, he requested the first defendant''s father to look after the affairs of the Temple, and that was

taken advantage by Muthusamy Thevar and he was managing the affairs, till he died in the year, 1981. After the death of Muthusamy Thevar, the

first defendant took the management of the Temple, taking advantage of the fact that his father was in management and also clandestinely obtained

order in his favour, in O.A. No. 10 of 1972 from the Deputy Commissioner, Hindu Religious and Charitable Endowments Board, Thanjavur, and

got himself declared as hereditary trustee of the aforesaid Temple, without making junior Ramalingam or the plaintiffs as parties. That order was

obtained by practicing fraud and misrepresentation of facts and the Deputy Commissioner has no jurisdiction to decide as to who is the hereditary

trustee of the Religious Institution, and his jurisdiction is limited only to the extent to find out whether the trusteeship right is hereditary or not. The

rival claims regarding trusteeship has to be decided only by the Civil Court and therefore, the order of the Deputy Commissioner made in O.A.

No. 10 of 1972 was invalid and inoperative and unenforceable. Merely because, the first defendant''s father Muthusamy Thevar was entrusted

with the management of the Temple, he cannot claim trusteeship over the Temple. Hence, the plaintiffs, who claim to be the hereditary trustees of

the Temple, filed the suit to declare them as hereditary trustees of the Temple and for other relief. The father of the first defendant-Muthusamy

Thevar acted as trustee only on behalf of the junior Ramalingam/first plaintiff and on his (Muthusamy Thevar) death, the trusteeship reverted to the

Ramalingam/first plaintiff and therefore, the first defendant has to deliver possession of the suit property and render accounts for all the income, he

realized after his father''s death.

The first defendant filed a written statement, wherein, he admitted the relationship but denied the allegation that Ayyathurai Thevar was taken in

adoption by Chidambara Thevar. Even assuming that adoption was true, the plaintiffs cannot claim any right/title/interest over the suit property. The

case of the plaintiffs that Ayyathurai Thevar was managing the Temple affairs was not true, and the paternal grandfather of the first defendant

established the Temple 100 years ago, and was managing the same as trustee. The Will dated 30.03.1929, alleged to have been executed by

Ayyathurai Thevar was not true and even assuming the same as true, it was not brought into effect and Chidambaram, the son of Ayyathurai

Thevar never took possession of the suit property as trustee, even after attaining majority, and the father of the first defendant did not manage the

Temple as trustee on behalf of the first plaintiff. After the death of senior Ramalinga Thevar, Ayyathurai Thevar, the father of the first plaintiff was

not evincing any interest for more than 65 years and therefore, the first defendant''s father, Muthusamy Thevar, was managing the Temple affairs till

his death. Further, in the year, 1972, the first defendant''s father Muthusamy Thevar got declaration from the Commissioner of H.R. & C.E., that

he was the hereditary trustee of the subject Temple and the said fact was also known to the plaintiffs. Even assuming that the plaintiffs have such

right, after the death of Muthusamy Thevar, the first defendant is managing the Temple as hereditary trustee and therefore, the plaintiffs are not

entitled to the relief prayed for.

The tenth defendant filed a written statement admitting the fact that the properties in his possession belonged to ""Mazhai Muthu Mariamman

Temple"" and he is paying the rent to the trustees and he is also prepared to pay the rent to the trustees, as decided by this Court.

The first defendant also filed an additional written statement, stating that Chidambaram, son of Ayyathurai Thevar was having three sons and

therefore, the allegation made in the plaint that the Chidambaram died issueless was false.

The plaintiffs filed a reply statement stating the Chidambaram did not have any issues, as alleged by the first defendant and therefore, the suit

was not bad for non-joinder of necessary parties.

The Trial Court, on the basis of above pleadings, framed the following issues:-

i) Whether the plaintiffs are entitled to the relief of declaration?

ii) Whether the plaintiffs are entitled to the relief of recovery of possession?

iii) Whether the plaintiffs are entitled to the relief of rendition of accounts? and

iv) To what other relief, the plaintiffs are entitled to?

The Trial Court also framed Additional Issues on 17.09.1996 and they are as follows:-

i) Whether the first defendant perfected title to the post of hereditary trustee by adverse possession? and

ii) Whether the first plaintiff and his brother Chidambaram relinquished their right to the post of trustee?

One more Additional Issue was also framed on 11.10.1996, which is as follows:-

Whether Chidambaram had sons and whether the suit is bad for non-joinder of necessary parties?

Issue Nos. i) to iii) originally framed were tried together and the Trial Court held that senior Ramalinga Thevar was only the trustee and he was

not the founder trustee and his predecessor-in-title must have established the Temple and senior Ramalinga Thevar and his brother were managing

the Temple. The Trial Court further held that senior Ramalinga Thevar acted as trustee, and the Temple and its properties were treated as joint

family charitable properties and the plaintiffs failed to prove that Ayyathurai Thevar, the adopted son of Chidambara Thevar established the

Temple and managing the properties and after him, his sons, viz., Chidambaram and the deceased/first plaintiff managed the properties as trustees

and therefore, they are not entitled to the relief of declaration.

The Additional Issues framed on 17.09.1996 were answered against the first defendant and it was held by the Trial Court that the plaintiffs

have not relinquished their right of trusteeship and the first defendant also cannot claim title to the post of hereditary trustee by adverse possession.

The one more Additional Issue framed on 11.10.1996 was decided as unnecessary, as the sons of Chidambaram, who was the brother of the

deceased/first plaintiff were impleaded as defendants 16 and 17 in the suit.

In the result, the Trial Court dismissed the suit. Aggrieved by the same, the present Appeal was filed.

The learned counsel appearing for the appellants submitted that the Trial Court has clearly found that the Temple and its properties were the

joint family charitable properties and were treated as such. Therefore, eventhough, the appellants claimed a larger relief that they have to be

declared as hereditary trustees, having regard to the findings of the Trial Court that they are entitled to function as trustees along with other family

members, viz., the first defendant, the Trial Court ought to have moulded the relief and ought to have held that the appellants are entitled to act as

trustees along with the first defendant.

The learned counsel for the appellants further submitted that eventhough the deceased/first plaintiff''s brother Chidambaram was given the

trusteeship under the Will-Ex. A2, executed by Ayyathurai Thevar, Chidambaram had two sons, who were impleaded as the defendants 16 and

17, and they have also executed a released deed, under Ex. A5, relinquishing their right over the trusteeship in respect of the said Temple and

therefore, as per Ex. A.5, the appellants are entitled to claim right of trusteeship along with the first defendant and this aspect ought to have been

considered by the Trial Court. The learned counsel also submitted that having regard to the findings of the Trial Court that the first defendant

cannot claim any right by adverse possession to the post of trusteeship, and the appellants have not relinquished their right to the post of

trusteeship, the Trial Court ought to have moulded the relief and granted the relief of trusteeship, which is a lesser relief and ought not to have

dismissed the suit as a whole.

Per contra, the learned counsel appearing for the respondents submitted that the relief prayed for, in the suit, viz., to declare the appellants as

hereditary trustees cannot be granted by the Civil Court by virtue of Section 108 of H.R. & C.E. Act. The learned counsel submitted that u/s 63(b)

of H.R. & C.E. Act, the Joint Commissioner or Deputy Commissioner shall have the power to enquire into and decide whether the trustee holds or

held office as a hereditary trustee and u/s 108, no suit or other legal proceeding in respect of the administration or management of a religious

institution or any other matter or dispute for determining or deciding, which provision is made in this Act shall be instituted in any Court of Law,

except under, and in conformity with, the provisions of this Act. Thus, having regard to Section 63(b) of H.R. & C.E. Act, the Joint Commissioner

or Deputy Commissioner are the authorities to decide whether a trustee holds or held office as a hereditary trustee and therefore, suit for

declaration that the appellants are to be declared as hereditary trustees cannot be granted by the Civil Court and therefore, the suit is not

maintainable.

The learned counsel for the respondents further submitted that though the plea regarding the maintainability of the suit was not taken during trial

and no issues were framed to that effect, considering the fact that the said plea is a legal plea, the same can be taken in the first Appeal. In support

of his contention, the learned counsel has relied upon the following reported judgments:-

i) State of Rajasthan Vs. Rao Raja Kalyan Singh, (Dead by his Lrs.),

ii A.V.G.P. Chettiar and Sons and Others Vs. T. Palanisamy Gounder,

and

iii) Sri Arthanareeswarar of Tiruchengode Vs. T.M. Muthuswamy Padayachi, M. Palanivelu, Smt. Dhanalakshmi Ammal, T.M. Thambiran

Padayachi, T. Kuberan and Varadayammal,

In view of the above submissions of the learned counsel appearing for the respective parties, the following points arise for consideration in this

Appeal:-

i) Whether the appellants are entitled to the lesser relief of declaration of trusteeship to the said Temple along with the first respondent?

and

ii) Whether the suit is barred by Section 108 of H.R. & C.E. Act?

It is the contention of the learned counsel for the appellants that though the appellants claimed the relief of declaration as hereditary trustees,

having regard to the findings rendered by the Trial Court that the Temple and its properties were the joint family properties of the plaintiffs and the

first defendant and therefore, the plaintiffs are entitled to act as trustees along with the first defendant, the Trial Court ought to have moulded the

relief and granted the decree of declaration that the appellants are entitled to act as trustees along with the first respondent to manage the Temple.

The learned counsel further submitted that the provisions contemplated in Section 108, H.R. &. C.E. Act is not bar to the maintainability of the

suit. As per Section 108, the Authorities under the act has got jurisdiction to find out whether the trusteeship right is hereditary or not and the rival

claims to trusteeship can be decided only by the Civil Court and the authorities under H.R. & C.E. Act has no jurisdiction to find out, who is the

hereditary trustees of the Religious Institution. In this case, the first respondent claims to be the hereditary trustee and the appellants also claimed to

be the hereditary trustees and therefore, as against the rival claims, the same can be decided only by the Civil Court and therefore, Section 108 of

H.R. & C.E. Act is not bar to the maintainability of the suit.

To appreciate the contentions of the learned counsel for the appellants, we will have to see the pleadings as well as the prayer sought for in the

suit. The specific case of the appellants was that the deceased first plaintiff''s father Ayyathurai Thevar, who became the adopted son of

Chidambara Thevar, established the Temple and was acting as trustee and was managing the properties. As rightly held by the Trial Court, no

acceptable evidence was let in by the appellants to prove that the Temple was established by Ayyathurai Thevar. On the other hand, Ayyathurai

Thevar himself admitted in Ex. A2, that the Temple belonged to him ancestrally and therefore, the Trial Court has rightly held that the Temple and

its properties are the joint family properties and the plaintiffs are not entitled to the declaratory relief of hereditary trustees.

In this Appeal, the submissions of the learned counsel for the appellants is that having found that the Temple and its properties are the joint

family properties, the appellants are also entitled to manage the properties along with the first respondent and this lesser relief ought to have been

granted by the Trial Court. To consider this point, we will have to look into the provisions of H.R. & C.E. Act.

Admittedly, the first respondent applied to the Deputy Commissioner, H.R. & C.E., Thanjavur, in O.A. No. 10 of 1972 and got himself

appointed as hereditary trustee and that was also admitted by the appellants/plaintiffs in the plaint and the only contention put forth by the

appellants was that H.R. & C.E. Authorities have no jurisdiction to decide the rival claims and their jurisdiction is limited only to the extent of

finding out whether the trusteeship claim is hereditary or not and therefore, the order passed in O.A. No. 10 of 1972 in favour of the first

respondent is invalid and inoperative. Eventhough in O.A. No. 10 of 1972, the appellants were not parties, the Deputy Commissioner passed an

order, recognizing the first respondents as hereditary trustee to the suit Temple and that was also known to the appellants.

Further, as per Section 63(b) of the Act, the Joint Commissioner or Deputy Commissioner are the authorities to decide whether a trustee holds

or held office as a hereditary trustee. Therefore, to decide whether the person is holding the office as hereditary trustee, the same can be decided

only by the authorities constituted under the H.R. & C.E. Act and the Civil Court has no jurisdiction to decide the issue. Therefore, u/s 108 of

H.R. & C.E. Act, the suit filed by the appellants is not maintainable. As rightly submitted by the learned counsel for the respondents, having regard

to the legal plea taken by the first respondent regarding the maintainability of the suit and also as per the judgments reported in State of Rajasthan

Vs. Rao Raja Kalyan Singh, (Dead by his Lrs.), I hold that such a legal plea can be raised in the Appeal, though there was no pleading to the

effect during trial. As per the provisions of Section 108 of H.R. & C.E. Act, the suit filed by the appellants seeking for declaration to declare

themselves as hereditary trustees was not maintainable, and therefore, the suit was rightly dismissed by the Trial Court and hence, the lesser relief

of granting trusteeship to the appellants also cannot be granted by the Civil Court and the same has to be considered/granted only by the

Authorities constituted under H.R. & C.E. Act. In the result, the Points for consideration in this Appeal are answered against the appellants and the

Appeal is dismissed by confirming the judgment and decree of the Trial Court. It is needless to state that, as I have held that the appellants are not

entitled to file the suit for declaration that they are the hereditary trustees of the Temple and the same has to be declared only by the Authorities

constituted under H.R. & C.E. Act, it is open to the appellants/plaintiffs to approach the Authorities of H.R. & C.E. to get suitable relief. No costs.