The State of Madras vs Krishnaswami and Another (Minors represented by their Mother and next Friend, Kaliammal)

P. Ramakrishnan, J.—The State of Madras represented by the Commissioner of the Hindu Religious and Charitable Endowments Board,

the defendant in O.S. No. 102 of 1957 on the file of the Subordinate Judge of Coimbatore, is the Appellant in this appeal. In Ikkarai Bolu

vampatti Village of the Coimbatore District there is a temple of the deity Angalamman. The plaintiffs in the suit claim to be the hereditary trustees of

the temple. The Deputy Commissioner of the Hindu Religious and Charitable Endowments Board negatived the plaintiff''s prayer for declaration

about their hereditary trusteeship. Their appeal to the Commissioner of the Board was also dismissed. Then they filed a suit before the learned

Subordinate Judge of Coimbatore u/s 62 of the Hindu Religious and Charitable Endowments Act for the necessary declaration about their

hereditary trusteeship after setting aside the orders adverse to them passed by the Deputy Commissioner and the Commissioner of the Board. The

defendant contested the claim.

The trial Court found on a consideration of the evidence, that the plaintiffs'' claim was established and gave the declaration prayed for. Hence

this appeal by the defendant. The point for determination in this appeal is whether the plaintiffs are the hereditary trustees of the suit temple and

whether they are entitled to a declaration to that effect.

I will take up first the documentary evidence. It is common ground that the substantial assets of the temple comprise about 11 acres of garden

lands. It is described in the Inam Fair Register (Exhibit B-3) as ''Devadayam and in column 13 the deity is described as the inamdar. In column 16

the enjoyer at the time of the In am Settlement is described as (sic). In column 14 of Exhibit B-2, Settlement Register of the village the name of the

pattadar of inamdar is described as ''Angalamman Temple (Palaniammal) wife of Ramaswami priest for the time being)''. It would appear from

these documents that the land was no doubt endowed to the deity for the upkeep of the temple, but it was under the management of the pujaris for

the time being of the temple. The next document we have is the sale deed. Exhibit B-4, dated 19th July, 1916, from one Appavu Chettiar to

Subbanna Goundan, who is the ancestor of the plaintiffs. This is an important document. The gist of it is this:

I bought the Angalamman inam land and the right to perform pooja (sic) from Palaniammal, the wife of Poojari Ramaswami Chetti. I have been

performing the poojas ever since. Since I am a resident of a different village and since I have got other occupations, I am unable to perform the

above said services to the deity (sic), Since you (the vendee) are a resident of the village and leading ryot as well as a well wisher of the temple

(sic), I am of the opinion that you are the proper person to perform the aforesaid services and bring the temple to a good order. Therefore I am

selling the under mentioned properties to you for Rs. 6 000.

At the end of the document there are also the following recitals, viz.

The lands are already in your possession as lessee. I am handing over the pooja right to you to-day. Hereafter you can enjoy the lands with full

rights and you should perform hereafter, in the same manner as I have been doing, the pooja and other services to the aforesaid Angalamman

temple and utsavam and other festivals, spending not less than Rs. 200 every year. You should also perform repairs to the temple.

It would appear from Exhibits A-1 and A-2, that after the above sale which took place in July, 1916, Subbanna Goundan the vendee was having

the pooja performed by a poojari, and Exhibits A-1 and A-2 are the receipts for the poojari''s salary as well as for the monies received by him for

the neivedyam of the temple from time to time. There was also evidence that the family of Subbanna Goundan spent a large sum of money for

renovating the temple and performed Kumbhabhishekam. On going through the oral evidence of the witnesses on the plaintiff''s side, P.Ws. 2, 3, 5,

7, 9 and 10, it is clear that Subbanna Goundan was considered to be the first Dharmakartha of the said temple. He was succeeded by his son

Ramaswami Goundan. Then on Ramaswami Goundan''s death, Kaliammal the guardian of the minor plaintiffs, who are the sons of Ramaswami

Goundan, was the dharmakartha. These witnesses could give no information as to who were the trustees before Subbanna Goundan. P.W. 1

Kaliammal, plaintiffs'' next friend, swore that even before Subbanna Goundan, the trusteeship was in her family and that no one except the

members of her family ever acted as trustees of the temple. If that was the case, one would surely expect a reference at the time of the inam

settlement to a member of the plaintiff''s family as the dharmakartha of the temple and as the person in enjoyment of the devadayam lands of the

deity. The In am Fair Register refers only to the poojari as the person in enjoyment. It is likely therefore that, as very often happened in the case of

small temples in this part of the country, that the poojari was also looking after the affairs of the temple. It was only taking advantage of that

position, that the poojari decided to sell the temple lands to Appavu Chettiar who was thereafter looking after the lands and performing the pooja

and the festivals for several years. Then finding it inconvenient to conduct these services, this Appavu Chettiar sold the lands to Subbanna Goundan

in 1916 with the recitals contained in Exhibit B-4. When we refer to the terms of the recitals in Exhibit B-4 already extracted, it would confirm also

the view that the poojari was also performing the festivals of the temple spending an inclusive sum of Rs. 200 from the income of the lands for the

pooja, festivals and so on. That would also show that the poojari was to all intents and purposes the trustee, until the sale to Subbanna Goundan in

1916. If members of Subbanna Goundan''s family had acted as trustees prior to 1916, one would expect Subbanna Goundan to be described in

Exhibit B-4 as trustee or hereditary trustee. But the only description given about him in Exhibit B-4 is '' Abimani'' which means well-wisher. It will

not be proper to extend the terms ''A bimani'' to include '' dharmakartha'' or trustee. No doubt the Hindu Religious and Charitable Endowments

Board has collected contribution in some prior years from, the temple as per demand notices Exhibit A-40 arid A-42 at i� per cent. It is pointed

out that this is the rate leviable in the case of excepted temples which have hereditary trustees. But the conduct of the t Board in levying

contribution at a particular rate will not prevent the Board from raising an issue about the hereditary nature of the trusteeship, when there is a

contest about it. Therefore from the fact of these contributions having been levied, at a particular rate, an inference about the right of the hereditary

trusteeship cannot be drawn.

Decisions have laid down that from mere fact of trusteeship being held by a family hereditarily for 3 or 4 generations, an inference that the

trusteeship was hereditary in character cannot be drawn as an invariable conclusion. In the well-known case of Madana Palo and Others Vs. The

Hindu Religious Endowments Board, , there was proof that the office of trusteeship was held by the appellant''s family for four successive

generations and there was no suggestion that the trusteeship had ever been held outside the appellants'' family. But in this case there is ground for

the positive inference, that before 1916, plaintiffs'' family had nothing to do with the trusteeship and that they enjoyed the trusteeship only

subsequently. The same principle is reiterated in a decision of the Andhra Pradesh High Court in Muniswami Mudali v. Kanniah Naidu (1954) 2

M.L.J. 42 (Andhra), where at page 44, it is pointed out that in that case the members of the plaintiffs'' family held the office of trusteeship for at

least three generations and there was no evidence to show that any member of the public outside these families held the office of trustee of these

institutions.

Mr. Ramaswami Ayyangar, learned Counsel, appearing for the Respondents referred to a decision of this Court in Ganapati v. Silharama ILR

(1887) Mad. 292, which related to the hereditary Karnam''s office of a village. There was evidence that the family of the plaintiff was recognised

as the office holder at the time of the in am Register of 1864 and subsequently for three generations that family held the office. Per contra there was

evidence that a different person was the karnam at the time of the Permanent Settlement and this person was not related to the plaintiff''s family.

There was also no evidence in what circumstances the plaintiffs'' grandfather was appointed to the Karnam''s office. In such circumstances, the

plaintiffs'' claim to recover the emolument payable to the office of Karnam was upheld by this Court. But the point to be noted is that in that case, a

long interval had lapsed between the time of the Permanent Settlement, and the time of the In am Settlement and it could be inferred that the

succession was traceable even from prior to the time of the In am Settlement to a lawful grant, and that therefore there was hereditary trusteeship.

But in the present case there is no interval between the time of the earlier poojaris and the time when Subbanna Goundan stepped into the

management. The management seems to have passed from one poojari to the other, until Subbanna Goundan acquired the temple lands by

purchase from the last poojari Appavu Chettiar. Then his successors took over the trusteeship. But that will not establish the ingredients of a

hereditary right to the trusteeship, namely, that the succession enjoyed by Subbanna Goundan and his descendants was one as of right. They might

have taken advantage of their position as influential ryots who had spent substantial sums in the renovation of the temple, and who were in actual

management of the lands, to claim a right to the de facto management. As pointed out by Mr. P.R. Ganapathi Iyer in his book on the Hindu and

Mohamedan Endowments, the devolution of the office for generations from son to grandson is prima facie evidence that the office devolves by

succession according to the ordinary laws of inheritance. So also the fact that members of a particular family held the office of Dharmakartha

continuously for more than a century and there was assertion by them that it was hereditary will be good evidence that the office is hereditary in

such family. But any such, prima facie inference will be negatived in the present case, by the fact that Subbanna Goundan himself in Exhibit B-4 did

not set up a right to hereditary trusteeship, but was content with the description of ''Abhimani'' or well--wisher. There is also the fact that before

Subbanna Goundan there is evidence that the temple and its affairs were looked after by two poojari families--one who was the poojari at the time

of the In am Settlement and the other by Appavu Chettiar, the vendor under Exhibit B-4. These circumstances are sufficient to rebut any prima

facie inference of hereditary trusteeship in the plaintiff''s family.

Therefore the plaintiff''s claim mustfail and the appeal is allowed and the plaintiffs'' suit is dismissed.

No doubt this is an unfortunate case. Subbanna Goundan had paid Rs. 6,000 to Appavu Chettiar and bought the temple lands. There is

evidence that the plaintiffs'' family had spent very large sums of money for repairing the temple. They have been taking interest in the affairs of the

temple and there is no allegation at all of any mismanagement. These facts could properly be taken into consideration by the Hindu Religious and

Charitable Endowments Board in giving preference to the members of the plaintiffs family in appointing a trustee or trustees to the temple.

There will be no order as to costs.