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Judgment
AR. Lakshmanan, J.—The above Letters Patent Appeal has been directed against the judgment of a learned single Judge of this Court
dated 7.11.1995 in Appeal No. 240 of 1984 dismissing the appeal thereby confirming the judgment and decree of the learned Principal
Subordinate Judge, Chingleput, dated 30.11.1982 in O.S. No. 257 of 1981. The plaintiff is the appellant herein.
The case of the appellant is as under : The appellant Sabha from out of its collections from the members of the Sabha, founded Sri Lakshmi
Hayavadhana Perumal Temple. The Sabha was duly registered under the Tamil Nadu Societies Registration Act and the object of the Sabha is
both religious and secular in nature. One of the objects of the Sabha is to construct a temple for the exclusive worship of its members. In or about
1958, the temple in question was constructed on the land donated by one P.S. Srinivasan of St. Thomas Mount and the construction was
completed during 1972. The management and the day-to-day affairs of the temple are being looked after by the Secretary of the Sabha and as
such, the Sabha has got every right to manage and maintain the affairs of the temple as its founder-cum -hereditary trustee.
The appellant Sabha filed an application u/s 63(b) of the Hindu Religious and Charitable Endowments Act (hereinafter referred to as the Act)
before the 2nd respondent for a declaration that the appellant Sabha is the hereditary trustee of the institution. The 2nd respondent dismissed the
said application, which was confirmed by the 1st respondent. As against the rejection of the application u/s 63(b) of the Act, the appellant filed the
statutory suit O.S. No. 157 of 1981 on the file of the Subordinate Judge, Chengleput. The respondent defended the suit contending that the suit
temple is a public temple constructed out of public collections including collection from the members of the appellant Sabha and that the temple is
one covered u/s 6(20) of the Act. The trial court rejected the claim of the appellant by holding that the appellant is not entitled to be declared as
the hereditary trustee of the suit temple. Aggrieved by that, the appellant preferred A.S. No. 240 of 1984, which was also dismissed by a learned
single Judge of this Court. Hence the present Letters Patent Appeal by the Sabha.
According to the appellant, the suit temple is dedicated to Sri Lakshmi Hayavadhana Perumal in Naganallur, Chennai-61. The said temple has
been founded by the members of the appellant Sabha from and out of the collections made from and amongst the members of the said Sabha. 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 Societies Registration 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 Vedas,
Upanishads, Divyaprabandas and Strothrapathas relating to Vashistadvaitha 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 purposes of giving charities, etc.
The appellant submits that 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.V. Srinivasan of St. Thomas
Mount. Its total extent is 1 3/4 ground. 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 respondents as
Government grant. The construction was commenced in the year 1968 and completed in the year 1972. Kumbabishekam 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-today maintenance. It is the personal property of the Sabha consisting of over 120 members.
According to the appellant, 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. The appellant filed a petition u/s 63(b) of
the Act before the 2nd respondent for a declaration that the appellant is the hereditary trustee of the institution. That application was dismissed by
the 2nd respondent, in O.A. No. 69 of 1977. As against such dismissal, the appellant filed A.P. No. 174 of 1978 before the 1st respondent u/s
69(1) of the Act, which was also dismissed by the 1st respondent. According to the appellant, the reasonings adopted by the respondents in
coming to the conclusion that the appellant cannot be the hereditary trustee are baseless. The secretary of the Sabha is entitled to hold the office of
trusteeship in respect of the temple in question. The trusteeship is only a hereditary one. Hence the suit.
The suit was resisted by the respondents. According to them, the suit temple is a public temple constructed out of public collections including
from the members of the appellant 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 appellant 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 Kumbabishekam and the day-to-day expenses thereafter are met out of public
contributions.
According to the respondents, the allegation of the appellant that the temple does not own any property is not correct. Public at large, other than
the members of the appellant Sabha, have contributed liberally for the construction and for day-to-day expenses after the Kumbabishekam. It is
not the personal property of the members of the appellant Sabha. The appellant has no right to be declared as the hereditary trustee. There is a
hundial in the suit temple and the public contribute liberally in it. The petition filed by the appellant u/s 63(b) of the Act has been duly considered by
the 2nd respondent and was rightly dismissed by him, which was confirmed on appeal by the 1st respondent. The reasonings in both the orders are
not liable to be set aside. The appellant 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 by the appellant. The Secretary of the appellant Sabha has no right to be appointed as its
hereditary trustee. There is no cause of action to file the suit and the cause of action alleged is false. There is a provision in the bye-laws of the
appellant 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 u/s 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 is liable to be dismissed with costs.
On the above pleadings, the trial court framed the following two issues for trial:
Whether the order of the 1st defendant is liable to be set aside?
To what relief?
On the side of the plaintiff/appellant, Exs. A-1 to A-10 were marked and one Ramaswami was examined as P.W. 1. On the side of the
defendants/respondents, no evidence, either oral or documentary, was let in.
The trial court while dismissing the suit has observed as follows:
Before ever I conclude I wish to say that taking into consideration the initiative and efforts taken by the members of the plaintiff 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 suit temple. It is for the defendants to decide whether one of the members or more than one of the members of the
Sabha can be appointed as trustee of the suit temple, but atleast one of the members of the plaintiff Sabha can be appointed as trustee of the suit
temple. With this observation, I hold under this issue that the order of the 1st defendant is not liable to be set aside. I answer this point accordingly.
Aggrieved by the judgment and decree of the trial Court, the plaintiff preferred A.S. No. 240 of 1984 on the file of this Court and a learned
single Judge of this Court, having found in paragraph 7 of his judgment that the institution was founded by the appellant Sabha, which is a body of
persons, however, dismissed the appeal by holding that the prayer of the appellant for declaring it as hereditary trustee cannot be granted.
Aggrieved by the judgment and decree of the learned single Judge, the plaintiff Sabha has filed the above Letters Patent Appeal.
We have heard the arguments of Mr. G. Subramaniam, learned Senior Counsel for the appellant Sabha and Mr. K. Elango, learned
Government Advocate for the respondents/Department.
Mr. G. Subramaniam, learned Senior Counsel appearing on behalf of the appellant contended that the learned single Judge having referred to
the case in A.N. Ramaswami Iyer and Others Vs. The Commissioner, The Hindu Religious and Charitable Endowments (Administration) and
Another, , erred in holding that the appellant Sabha does not satisfy any other conditions mentioned u/s 6(11) of the H.R. & C.E. Act. He further
submitted that the learned single Judge having found in para. 9 of his judgment that ""the fact that there are no other founders in the suit institution
and no other manages the affairs of the suit institution"", which would clearly show that the position of the appellant as the founder is not in dispute
and in law as per the ruling in Gossami Sri Gridhariji v. Romanlalji Gossami ILR 17 Cal. 3 the trusteeship has not been otherwise disposed of.
Consequently the presumption is the trusteeship vest in the founder and his heirs and in this case heirs include the next set of trustees. He also
submitted that an association can be trustee and hereditary trustees. Referring to the finding of the learned single Judge who has made much of the
by-law 23 which enables the society being wound up, Mr. G. Subramaniam submitted that if only the learned single Judge had appreciated the
effect of Sections 41 and 42 of the Societies Registration Act, there would not have been any obstacle in the appellant succeeding.
The only question that arises for consideration in this appeal is whether a body of persons, viz., Sri Vedantha Sthapana Sabha, Naganallur, can
be a trustee of the temple and when there is nothing in the definition of the word trustee which would deprive a body of persons of their right of
trusteeship merely because that body is likely to fluctuate from time to time. In support of his contention, Mr. G. Subramaniam, placed strong
reliance on the judgment of the Division Bench of our High Court consisting of Venkataraman and Maharajan JJ. reported in A.N. Ramaswami
Iyer and Others Vs. The Commissioner, The Hindu Religious and Charitable Endowments (Administration) and Another, , wherein the Division
Bench held as follows:
It is clear from Section 6, Clause (2) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, that a body of persons such as
the Brahmin Community of a particular village can be a trustee of the temple, provided the administration of the temple is vested in them. There is
nothing in the definition of the word trustee which would deprive a body of persons of their right of trusteeship merely because that body is likely to
fluctuate from time to time. If the entire Brahmin community of the village are deemed to be the hereditary trustees, the mere fact that they
comprised a large body of individuals cannot take away that right from them. All of them would be joint trustees. The office will thus be a joint one,
the co-trustees forming, as it were, one collective trustee. But if they, for the purpose of convenient management, elected, one from amongst
themselves as a trustee, it must have been only to facilitate the management of the temple and its properties. Such election by itself cannot confer
any exclusive right of trusteeship much less a hereditary right to trusteeship.
In that case, the suit was filed by the plaintiffs for themselves and as members of the Committee of the Agraharam Rothu Dharma alias Dharmam
Paripalana Sabha of Vadakku Ariyanyagipuram against the Commissioner of the Hindu Religious and Charitable Endowments (Administration),
Madras and others for setting aside the order of the first defendant therein. Their case was that there are two temples in the village
Ariyanyagipuram viz., one Siva Temple and one Vishuu temple and the said Siva Temple is possessed of considerable endowments and has been
under the management of the trustees appointed from time to time, while the Vishnu Temple has been customarily and from time immemorial under
the continuous and exclusive management and control of the resident Brahmin Community of the village. The plaintiffs being the present member of
the managing commit-ting of the Agraharam Pothu Dharmam known as Dharmam Paripalana Sabha, having been selected thereto by the Brahmin
residents of the village. The village Brahmin community has been from time immemorial in exclusive control and management of Sri
Venkatachalapathi Devasthanam (the Vishnu Temple) and has been functioning through a managing committee selected by the said community
from year to year. The claim of the hereditary trusteeship made by the Brahmin community was rejected as untenable. On appeal, the
Commissioner, H.R. & C.E., dismissed the same. Suit was filed in the lower court for setting aside the order of the commissioner. The suit was
resisted by the defendants that the plaintiffs have failed to establish that they were the hereditary trustees of the suit temple and that consequently,
the order of the Deputy Commissioner was not liable to be set aside. The main question that arose for consideration in the appeal filed before the
High Court was, ""Whether the resident Brahmin community of Ariyanayagapuram are the hereditary trustees of Sri Venkatachalapathi
Devasthanam."" The Bench held that since 1906, the members of the Brahmin community of the village have been exercising their right of
management up-to-date, it is but reasonable to presume in the absence of any contrary evidence, that they have been in management of the temple
from time immemorial. The Bench observed as follows:
It is a sound principle of law that where there has been a well-established user, extending over a long series of year, it is the duty of the court, if
possible, to find a legal origin for the existing facts. It is not improbable that the members of the Brahmin community of the village actually founded
the temple at some point of time, which is lost in the mists of antiquity, and that is why they have been hereditarily managing the affairs of the
temple."" u/s 6, Clause (22) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959,
''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.
In the instant case, the evidence let in by the appellant/plaintiff would clearly show that the temple was founded by the members of the Sabha
which is a body of persons and that the Sabha has constructed the temple and it is the founder. It is managed by the Sabha only and therefore, they
should be declared as the hereditary trustees of the said institution and that they do not want any individual to be declared as hereditary trustee.
The trial court has given a finding that the Sabha is the founder of the temple. There is no cross-objection filed by the defendants. u/s 6, Clause
(22) of the Act, the term ''trustee'' has been described. It is clear from the said definition that a body of persons, can be a trustee of the temple,
provided the administration of the temple is vested in them. In our opinion, there is nothing in the definition of the word ''trustee'' which would
deprive a body of persons of their right of trusteeship merely because that body is likely to fluctuate from time to time. There can be no doubt that
the law of the country recognised fluctuating communities as legal personae capable of owning property, as for instance the caste and the village.
The above statement represents the correct position of law. If a whole village is capable of owning property notwithstanding the fact that the
collectivity called the village is necessarily a fluctuating body, we see little reason why such a fluctuating body cannot hold the right of administering
and managing the temple and being the trustee thereof. If the right of superintendence or administration of the suit temple validly vests in a body,
there can be little doubt chat this community is the body which will be regarded as a trustee of the temple within the meaning of Section 6, Clause
(22) of the Tamil Nadu Act XXII of 1959. Clause (11) of the said section defines hereditary trustee 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 that founder, so long as such scheme of succession is in force.
There are three limbs to this definition. A trustee will be regarded as hereditary, if the succession to his office;
(1) devolves by hereditary right, or
(2) is regulated by usage, or
(3) is specifically provided for by the founder.
Learned Counsel for the respondent has not cited any decision wherein it has been held that a body of trustee such as a particular village or
caste is disentitled to be a hereditary trustee. As we have already observed, the Law of the country has always recognised the fluctuating
communities as legal personae capable of owning property, a therefore it was wrong for the authorities concerned in the trial court to have held
otherwise depriving the legal rights of the members of the appellant sabha. It is the sound principle of law that where there has been a well-
established user, extending over a long series of years, it is the duty of the court, to find a legal origin for the existing facts.
According to Mr. G. Subramaniam, learned Senior Counsel, the trusteeship is hereditary if
(1) devolves by hereditary right, or
(2) is regulated by usage, or
(3) is specifically provided for by the founder.
According to him, the Sabha comes under the third category of Section 6(11) which relates to cases where the founder of the religious institution
lays down a scheme of succession of hereditary right and such claim of succession is in force. For the trusteeship to be characterised as hereditary
trusteeship it is not necessary that the trusteeship should devolve from father to son and so on. It is enough by long usage the trusteeship remained
with a particular family. As regards the person to act as trustee at any particular point of time, it would be open to the family to decide the matter
as and when the question arises.
In the decision reported in Khaji Mohammed Hussain Sahib v. The Masjiday Mohammed Jamait Managing Committee of Pudupet ILR 1940
Mad. 671 : AIR 1940 Mad. 167 it has been held as follows:
Where a society is formed for certain purposes whose paramount object is charitable, the fact that some of the objects may not be strictly
charitable but religious would not render the society any the less a charitable to benefit the public or a considerable portion of the public. Such a
society could be lawfully incorporated under the Societies Registration Act. Such a society incorporated under the Act could validly acquire by
prescription the office of Muthavalli of a mosque. Whether a society formed for an exclusively religious purpose could be construed as a society
for a charitable purpose within the meaning of the Act, left open.
In the decision reported in Muthia Asari v. Madasami Asari (1965) 2 M.L.J. 220, a Division Bench of this Court consisting of M.
Anantanarayanan and M. Natesan JJ., held as follows:
We think it is sufficient to point out the position at law for the fact of the present case make it abundantly clear that there is no need, in the
immediate context, to strike down any provision of law in the 1959 Act as ultra vires in view of rights guaranteed under Article 26 of the
Constitution. Certainly, the fact that the Area Committee purported to nominate members of the particular religious denominations will not be
enough to cure the vice or infirmity, if otherwise the rights guaranteed to this body under Article 26(d) are effectively taken away by the
nomination. But the matter seems to be academic at the moment, since the terms of the members who were previously functioning as trustees, we
shall assume as de facto trustees have come to an end. The temple, we must reiterate, belongs to the entire body of the Viswa Karma Brahmin
community of the district, and not merely to members of the five named villages or certain villages. The interim powers of the Commissioner or the
Area Committee to make arrangements for the day-to-day administration of the temple and its endowments are not in dispute. Hence, we direct
that such arrangements be made, as appear feasible and expedient. In the meantime, it is obvious that an electoral roll has to be prepared of the
members of this community in the district, which from a corporate body in whom are vested relevant rights under Article 26 of the Constitution. If
such a roll is prepared, some kind of an electoral meeting has to be convened, or an electoral college has to be formed and two or three trustees,
as convenient, will have to be elected by the electorate. Certainly, the Area Committee and the Commissioner will have discretion to decline to
accept the elected candidates who suffer from any specific unsuitability or infirmity unfitting them from office; in that case, election may have to be
held again in that particular respect. But subject to this restriction, it is the corporate body that has to elect trustees for the administration and
management of the temple and its properties. Such arrangement may be carried out by the authorities under the directions of the Commissioner
(first defendant) after the proper interval of time; in the mean time, the interim arrangements will continue to be enforced.
In the decision reported in Kesava Panicker Vs. Damodara Panicker and Others, , it has been held as follows:
If there was a trust created by the public for a public charitable purpose namely establishing, maintaining and running a school the fact of the
registration of a society could not change the character of the properties which had already been constituted as trust properties and impressed with
the trust and addition to those properties must also have the same character.
In the decision reported in Gossami Sri Gridhariji v. Romanlalji Gossami ILR 17 Cal. 3 it has been held as follows: (at page 20)
According to Hindu Law, when the worship of a Thakur has been founded, the shebaitship is held to be vested in the heirs of the founder, in
default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a
different mode of devolution. This principle is illustrated by the decision in the case of Peet Koonuwur v. Chutter Dharee Singh and in the present
case some of the learned Judges of the High Court have affirmed it, while none has expressed dissent from it. One learned Judge though that the
principle does not apply to this case, because Daoji was not the founder of the Calcutta worship. But their Lordship adopted the view of the other
Judges, and holding that the mortal Daoji was the founder, they must also hold that the plaintiff is, by general law, the shebait of that worship.
In the decision reported in Commissioner for H.R. & C.E. Madras v. Sethurama Pillai 73 L.W. 32 a Division Bench of this Court observed as
follows:
It is well settled that where there are more trustees or managers than one, all would be entitled to act jointly, they would be in the position of joint
trustees, and form a corporate body. The office is a joint one, and the co-trustees all form, as it were, one collective trustee, and therefore must
execute the duties of the office in their joint capacity. A scheme providing for the management by turns amongst the members of family would be
only an arrangement inter se, but outside the family, the co-trustees would form a corporate entity. The representation of the institution could be
valid or effective only if all the trustees jointly act, a portion the institution or the body of trustees can be bound only if they are all impleaded. No
one of the co-trustees derives title under any one of them, no one of them could be represented by another in legal or quasi-legal proceedings.
As already referred to, the learned single Judge has made much of the byelaw-23 which enables the society being wound up. According to the
learned single Judge, if on a particular date the general body of the plaintiff Sabha decides to wind up the affairs of the plaintiff sabha and ceases to
function, no-one will take care of the administration of the suit institution. Learned single Judge has further observed that if such a contingency
arises, there will not be anybody to look after the affairs of the institution if the plaintiff/appellant is appointed as the hereditary trustee. In our
opinion, Sections 41 and 42 of the Societies Registration Act, 1975 would be the answer to such an apprehension. Section 41 of the said Act
deals with the dissolution of registered societies and adjustment of their affairs. Section 42 provides that on dissolution, there shall remain after the
satisfaction of all its debts and liabilities, any property whatsoever, the same shall not be paid to or distributed among the members of the said
society, or any of them, but shall be given to some other registered society or to any associated of persons having the same object or objects
similar to those of such registered society, to be determined by a special resolution or in default thereof by the court. We have already noticed that
it is an admitted fact that the founder of the temple is the Sabha, which finding has not been challenged by the respondent Board. Therefore, the
only question that was argued before the Court was, ""Whether a body of persons/society or office-bearers of a Sabha, can be recognised as a
hereditary trustee or a trustee of the temple.?
For all the foregoing reasons, we are of the view that since the entire administration of the temple is vested in the Sabha which consists of the
office-bearers and members of the Sabha/society, they alone are entitled to administer the temple and its properties which are also vested with
them either as joint-trustees or as co-trustees. The orders of the second defendant in O.A. No. 69 of 1977 dated 16.6.1978, confirmed by the
first defendant by his order dated 14.7.1981 made in A.P. No. 174 of 1978 are hereby set aside and consequently, the appellant/plaintiff is
entitled to hold the office of trusteeship in Sri Lakshmi Hayavadhana Perumal Temple in Naganallur, Saidapet Taluk, as hereditary trustee. The
order of the learned single Judge confirming the order of the learned Sub Judge of Chengalpet in O.S. No. 257 of 1981 is hereby set aside. The
L.P.A. succeeds. No costs. Consequently, C.M.P. No. 17611 of 1995 is closed.