Sastri Ammal and Another vs Pravalavarna Naicker and Another

Rajagopalan, J.—In Original Application No. 99 of 1939, proceedings instituted u/s 84 of Madras Act II of 1927, the Board of Hindu

Religious Endowments held that Sri Kanni Amman Temple, Manapakkam, Chingleput district, was an ''excepted'' temple as that was defined by

Act II of 1927; that finding naturally implied that the trustee ship in that temple was hereditary.

It was common ground that Venkatachala was the founder of the temple. The Petitioners'' case was that after the death of Venkatachala, his

son-in-law Kolaindavelu succeeded to the office of trustee. Kolaindavelu had three sons. The first Petitioner claimed she was the heir to

Kanniappa, one of the sons of Kolaindavelu, and that the second Petitioner was the widow and heir of Rajamanicka, another son of Kolaindavelu.

The Petitioners claimed to have succeeded to the office of trustee on the death of Kolaindavelu''s sons.

The first Respondent in his turn claimed that he was entitled to succeed to the office of trustee as he was the reversioner to the estate of

Venkatachala. The first Respondent filed an application, which was numbered as Original Application No. 17 of 1953, u/s 57(b) of Madras. Act

XIX of 1951. The Deputy Commissioner eventually decided that application ex parte the Petitioners on 27th January 1955. The Deputy

Commissioner upheld the claim of the first Respondent, that it was he and not the Petitioners that was entitled to succeed to the office of hereditary

trustee of the temple. The Petitioners appealed to the Commissioner, who dismissed that appeal on 15th April 1955.

The Petitioners thereupon applied to this Court under Article 226 of the Constitution for the issue of a writ of certiorari to set aside the order of

the Deputy Commissioner, dated 27th January 1955. The two main grounds put for ward by the learned Counsel for the Petitioners in support of

the application were : (i) that the Deputy Commissioner had no jurisdiction u/s 57(b) of Act XIX of 1951, to decide who was entitled to succeed

to the office of the hereditary trustee of the temple, when there was no dispute at all over the question, whether the office of trustee in this temple''

was hereditary, and (ii) even if the Deputy Commissioner '' had jurisdiction to decide this question, its exercise was vitiated in this case; the

decision on 27th January 1955, which was ex parte the Petitioners, amounted to a denial of reasonable opportunity to the Petitioners to pre sent

their defence to the claim of the first Respondent before the Deputy Commissioner.

Section 57(b) of Act XIX of 1951 runs :

Subject to the rights of suit or appeal hereinafter provided, the Deputy Commissioner shall have power to inquire into and decide the following

disputes and matters: --

* * *

(b) Whether a -trustee holds or held office as a hereditary trustee;

The question for determination now is, when there was no dispute that the trusteeship of the temple was hereditary, and when the only dispute

between the first Respondent on the one hand and. the Petitioners on the other was who was entitled to succeed to that office, did that dispute

come within the scope of Section 57(b) ? If it did not, the Deputy Commissioner could have had no jurisdiction to decide that dispute.

It can be taken as settled law that a right to succeed to a hereditary office is a right to property. A claim to such a right is normally cognizable by

a civil Court, unless that jurisdiction is ousted by statute either expressly or by necessary intendment. Section 93 of Act XIX of 1951 runs :

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.

The bar imposed by Section 93 would thus apply to determination by a civil Court of any dispute for determining or deciding which a provision

has been made in the Act, that is, Act XIX of 1951. So we come back to Section 57(b) of the Act. Does it expressly or by necessary intendment

provide for the determination of a dispute of the kind I have specified above, that is, a claim to succeed to the office of hereditary trustee?

If the dispute is, whether the office of trustee of a given religious institution is hereditary, it would certainly come within the scope of Section

57(b). In my opinion, that is all that Section 57(b) provides for. A dispute between the claimants to succeed to an office, which it is admitted on all

Hands is hereditary, is, in my opinion, not within the scope of Section 57(b) of Act XIX of 1951.

The learned Counsel for the first Respondent urged that the dispute between the first Respondent and the Petitioners came within the purview of

Section 57(b). The learned Counsel contended that one of the questions he asked the Deputy Commissioner to decide was whether the first

Respondent held the office of hereditary trustee of the temple and whether he was dispossessed of that office. That, he argued, came within the

scope of the expression ''whether a trustee held office as hereditary trustee'' within the meaning of Section 57(b). The learned Counsel also

contended that the question, whether the Petitioners, who are now in possession of the office, are entitled to remain in possession, would come

within the scope of the expression whether the Petitioners held office as hereditary trustees in Section 57(b). These contentions, however, do not

alter the nature of the claim that the first Respondent presented to the Deputy Commissioner for determination, whether the first Respondent was

entitled to succeed to the office of hereditary trustee of the temple and to recover possession of that office from the Petitioners who are now in

possession. Since it is accepted that the office itself is hereditary, the real dispute between the parties is, who is entitled to hold that office, is it the

first Respondent or the Petitioners?

In determining the scope of Section 57(b) of the Act, it should be useful to compare the language of Section 57(b) with that employed in

Section 47 of the Act. The only dispute that falls within the scope of Section 57(b) is the dispute whether a trustee holds or held office as

hereditary trustee? That, in my opinion, does not include within its ambit a dispute respecting a right to succession to a hereditary office. Section

47(1) provides :

When a permanent vacancy occurs in the office of the hereditary trustee of a religious institution the nest in the line of succession shall be entitled to

succeed to the office.

That is only declaratory of the hereditary right. Admittedly the vacancy that arose in this case was a permanent one. The relevant portion of

Section 47(3), runs :

When a permanent or temporary vacancy occurs in such an office and there is a. dispute respecting the right of succession to the office .....the

Deputy Commissioner may appoint a fit person to discharge the functions of the trustee of the institution until the disability of the hereditary trustee

ceases or another hereditary trustee succeeds to the office or for such shorter term as the Deputy Commissioner may direct.

The language of -Section 47(3), which refers to a dispute respecting the right of succession to the office, is significant, when it is compared with

the language of Section 57(b)-, whether the trustee holds or held office as hereditary trustee. If Section 57(b) had been meant by the Legislature to

include such'' a dispute also, that is, a dispute respecting the right of succession to the office, the language of Section 57(b) should have been

different. It should be noticed that Section 47(3) and Section 57(b) confer jurisdiction on the same Deputy Commissioner. Section 47(3) of the

Act certainly contemplates determination of the dispute respecting the right of succession to the office. Section 47, however, does not vest in the

Deputy Commissioner the jurisdiction to determine that dispute. Nor does Section 47(3) imply that the determination of such a question should be

under the provisions of this Act, that is, u/s 57(b).

If the position for which Section 47(3) of the Act provides has arisen, that is, if after the death of the last holder of the office there is a scramble

for succession, and none of the claimants gets possession, and a temporary appointment is made u/s 47(3) and a person is appointed by the

Deputy Commissioner to discharge the functions of the trustee until the person entitled to the office succeeds to that office, can the claim of any of

the persons to succeed to that office come within the scope of Section 57(b) ? The claimant in such a case cannot claim either that he held the

office or that he holds office as hereditary trustee. His claim can only be that he is entitled to hold office as hereditary trustee. That will not fall

within the scope of Section 57(b). It is not enough to show that the last holder held the office as hereditary trustee. There can be no dispute about

that; and there can be no need to determine that, because the dispute is only who is entitled to succeed to the hereditary office. Obviously a claim

to succeed to the office under such circumstances would fall outside the scope of Section 57(b).

It should be difficult to interpret Section 57(b) to mean that while one class of claimants to succeed to the office of hereditary trustee of a

temple is excluded by the language of Section 57(b), other classes of such claimants could be brought within the scope of Section 57(b). So the

contention of the first Respondent in this case, that he held office for a time until he was dispossessed as hereditary trustee ,would not make his

claim to succeed to the office a dispute within the meaning of Section 57(b). All classes of claims to succession to a hereditary trusteeship would

appear to be outside the scope of Section 57(b).

If we examine the scheme underlying Act XIX of 1951, the scope of Section 57(b) becomes clearer. The Act pro- : vides for determination of

certain disputes in the first instance by the Deputy Commissioner, and they are mainly disputes that affect directly the day-to-day administration of

a religious institution. If, for example, there are no here hereditary trustees in a given religious institution, the appointments of trustees have to be

made u/s 39 of the Act to carry on the administration of the temple. If a dispute arises whether the office of trustee in the institution is hereditary or

not, for on that would depend the answer to the question whether there are no hereditary trustees within the meaning of Section 39, such a dispute

is specifically brought within the jurisdiction of the Deputy Commissioner u/s 57(b) of the Act. If there is no dispute that the. office is hereditary, but

the dispute is who should succeed to that hereditary office, Section 47(3) of the Act provides for interim arrangements being made by the Deputy

Commissioner till the dispute over succession is decided. In either event, whether the appointment is u/s 39 or u/s 47(3), that. appointment safe

guards the interests of the institution. A dispute whether the office is hereditary affects the administration of the temple, and that explains. the

provision for the determination of that question by the Deputy Commissioner u/s 57(b) of the Act. It should be remembered that the powers

conferred upon the Deputy Commissioner by Section 57 of the Act could be exercised suo motu. Taking for example the determination of the

question, whether the office of a given religious institution is hereditary, the Deputy Commissioner can take up the question suo motu without any

need for any applicant to bring up such a question before him. That, again is consistent with the scheme underlying the Act, that the administration

of the temple is the primary concern of the statutory authorities including the Deputy Commissioner. A dispute over succession to the office of a

hereditary trustee cannot obviously affect the temple or its administration to the same extent as a dispute whether the office itself is hereditary. To

the extent such a dispute can affect the administration of the temple, provision is made in Section 47(3) of the Act, That power also can be

exercised suo motu by the Deputy Commissioner. In deciding the scope of Section 57(b) a relevant consideration could be whether the Legislature

intended to clothe the Deputy Commissioner to decide also disputes respecting the right of succession to the office in proceedings initiated suo

motu, that is, without any need for any claim ant to the office coming up before the Deputy Commissioner with a request to adjudge the dispute.

A trustee appointed u/s 39 or Section 47(3) of the Act could avail himself of the provisions of Section 57 of the Act.. That again is a provision

for safeguarding the interests of the institution and its administration. Section 87 is also helpful in determining the scope of Section 57(b) of, the Act.

A person who succeeds to the office of hereditary trustee, for which Section 47(1) provides, is not a person '' appointed '' within the meaning

of Section 87 of the Act. Succession in such a case is based upon the hereditary right and not upon the recognition of that right by the Deputy

Commissioner; and certainly it does not depend upon any appointment by the Deputy Commissioner. If succession to the office of a hereditary

trustee is without any dispute from rival claimants, there should normally be no further difficulty. There should normally be no occasion for a person

succeeding to the office without any dispute to ask for possession of that office. If, however, succession to the here hereditary office is after the

determination of a claim to succeed to the office, still it would be a case of succession u/s 47(1) of the Act, and in that case also no question of

appointment as such could arise. And as he would not be a person appointed within the meaning of Section 87, a person who succeeds to the

office of hereditary trustee after disputes between the rival claimants have been settled by a competent Tribunal, he could not apply either to the

Deputy Commissioner u/s 87. Thus, if the determination of a dispute respecting a right of succession to the office is to. be brought within the scope

of Section 57(b) of the Act, the successful claimant would still have to go to the civil Court to recover possession of the office and whatever goes

with it. It is not possible to accept the construction of the language of Section 57(b) which involves so anomalous a position, that it takes away the

jurisdiction of the civil Courts to determine the right to office but leaves the civil Courts with the jurisdiction to determine whether the claimant

whose right is established should be given possession.

The learned Counsel for the first Respondent referred to Gopalaswami Mudaliar v. Thyagaraja Mudaliar (1951) 1 M.L.J. 248. That may not

be helpful in deciding the question at issue before me, the scope of Section 57(b) of Act XIX of 1951. The language of Section 84(b) of Act II of

1927, as it was finally amended by Act X of 1946, was, whether a trustee is a hereditary trustee as defined by this Act. That is net quite the same

as Section 57(b) of Act XIX of 1951. Besides, there are other provisions of Act XIX of 1951, to some of which I have referred above which are

not quite the same as those in Act II of 1927. Further, as I have already pointed out, the only question that arose for determination in the

proceedings before the Deputy Commissioner in this case was whether it was the first Respondent or the petitioners that were entitled to succeed

to the office of hereditary trustee, and that was not the position in Gopalaswami Mudaliar v. Thyagaraja Mudaliar (1951) 1 M.L.J. 248.

Neither by express terms nor by. necessary internment does Section 57(b) of Act XIX of 1951, divest the civil Court of its jurisdiction to take

cognisance of a claim to succeed to the office of hereditary trustee, which, as I said, is a claim, to property. I, therefore, hold that Section 57(b)

does not vest that jurisdiction in the Deputy Commissioner.

Since the Deputy Commissioner had no jurisdiction at all to take cognisance of or to decide the dispute respecting the right of succession to the

office of hereditary trustee, the order of the Deputy Commissioner, deciding that dispute in favour of the first Respondent, must be set aside.

Learned Counsel for the first Respondent urged that, even if the Deputy Commissioner acted without jurisdiction, this is not a case where the

Petitioners should be granted the discretionary relief of a writ of certiorari.

The learned Counsel for the first Respondent pointed out that what in form the Petitioners asked for was to set aside the order of the Deputy

Commissioner, dated 27th January 1955; but that order was confirmed on appeal by the Commissioner, and there was no prayer to set aside the

order of the Commissioner. That may not be a bar to the exercise of the jurisdiction vested in this Court under Article 226 of the Constitution. If

the order of the Deputy Commissioner is set aside as one passed by a Tribunal wholly devoid of jurisdiction, the order of the Commissioner, which

confirmed that order, would have no basis by itself.

The next contention of the learned Counsel for the first Respondent was that, since Section 62 of the Act provided an alternative remedy, this

Court is not called upon to exercise its jurisdiction under Article 226 of the Constitution"". No doubt the Petitioners could file a suit u/s 62, and in

that suit the question of the jurisdiction of the Deputy Commissioner to decide the dispute could also be gone into. The existence of an alternative

remedy is not a statutory bar to the exercise of jurisdiction under Article 226 of the Constitution, though it is well settled that the Court would be

slow to exercise its discretion in favour of the issue of a writ if there is -an alternative remedy open to the Petitioners. One of the factors that could

be taken into account in this case is that the Deputy Commissioner, who had no jurisdiction at all to decide the dispute, decided it ex parte.

Though, of course, the Petitioners were mainly responsible for that position, in the circumstances of this case, I do not think the existence of an

alternative remedy should result in my maintaining the order of the Deputy Commissioner.

The third contention of the learned Counsel for the first Respondent was that the Petitioners were disentitled to the discretionary relief under

Article 226 of the Constitution, because they submitted to the jurisdiction of the Deputy Commissioner, and further they themselves invoked., the

jurisdiction of the Commissioner by preferring an appeal to him. Here again, normally, when a party voluntarily sub mitted to the jurisdiction of a

Tribunal which had no jurisdiction, he would not be heard in proceedings under Article 226 of the Constitution to say that the Tribunal had no

jurisdiction, merely because the decision of the Tribunal went against him. Of course, it is not that submission to jurisdiction that confers jurisdiction

on the Tribunal. It is merely a case of a factor being taken into account before the Court decides whether it should exercise its discretion in favour

of the applicant before it. In this case, however, it could not be said there was real submission to the jurisdiction of the Deputy Commissioner to

adjudge the dispute. Though in the counter statement filed by the Petitioners before the Deputy Commissioner the question of jurisdiction was not

raised in the specific form in which it has been raised in the proceedings before me, it should have been open to the Petitioners to raise that

question before the Deputy Commissioner. The parties were not bound by the strict rule of pleadings that could be enforced by a civil Court. The

case, as I have already pointed out, was decided ex parte. In the appeal to the Commissioner, the main point urged was that the Deputy

Commissioner should have granted the adjournment asked for by the Petitioners and that he should not have decided the case ex parte. Under

such circumstances, neither the fact that the Petitioners participated up to a stage in the enquiry before the Deputy Commissioner, nor the fact that

they appealed to the Commissioner to set aside the order of the Deputy Commissioner, is enough to disentitle the Petitioners to the grant of relief

under Article 226 based on the finding, that the Deputy Commissioner acted wholly without jurisdiction.

In the view I have taken on the question, whether the Deputy Commissioner had jurisdiction, it is not necessary to go into the other contentions

put forward by the learned Counsel for the Petitioners, that the Deputy Commissioner did not give a real and effective opportunity to the

Petitioners to be heard in their defence.

This petition is allowed. The rule is made absolute, The order of the Deputy Commissioner, dated 27th January 1955, is set aside as one

passed wholly without jurisdiction No order as to costs.