T.P. Attimuthu Goundar vs A.K. Parvathammal and Another

Ramanujam, J.—These two appeals filed by the same Appellant arise out of two suits Original Suit Nos. 134 of 1963 and 135 of 1963 on the file of the Subordinate Judge. Coimbatore, filed by the Appellant u/s 70 of the Hindu Religious and Charitable Endowments Act, 1959 to set aside the orders of the Commissioner, Hindu Religious and Charitable Endowments in Endowment Appeal No, 49 of 1962 against the Deputy Commissioner''s order in O.A. No. 41 of 1959 and Endowment Appeal No. 50 of 1962 against the Deputy Commissioner''s order in O.A. No, 17 of 1960 respectively.

In O.A. No. 41 of 1959, the Appellant herein sought a declaration that he is the hereditary trustee of Venugopalaswami temple in Kiliagoundanpalayam as per the Will, dated 9th June 1946 of the founder, one Ramakkal. The claim was resisted by the first Respondent herein. In O.A. No. 17 of 1960 the first Respondent had claimed that the said temple was not a public temple coming within the purview of the said Act and that in any event, she should be declared to be its hereditary trustee. The claim of the first Respondent was contested by the Appellant

The Deputy Commissioner enquired into both the applications and held in O.A. No. 41 of 1959 that the Appellant was not the hereditary trustee and in O.A. No. 17 of 1960 that the suit temple is a public temple coming within the purview of the Act and that the Respondent was a hereditary trustee. Against the said orders, the Appellant filed two appeals to the Commissioner but without success. Thereafter he filed the two suits to set aside the orders passed by the Commissioner on the said two appeals.

Ose Baithamma Gounder had installed a deity of Sri Venugopalaswami in a thatched shed put up by him in the village Natham in his village Kiliagoundanpalayam in Coimbatore taluk. He died leaving behind him his only daughter, Ramakkal and very extensive properties. She married one Ramana Gounder. As Ramana Gounder had no issues by Ramakkal he married two other wives, Kondammal and Thirumalai Ammal. By Kondammal he had a daughter Thulasi who married Perumal Gounder and the Plaintiff is their son. By Thirumalai Ammal he had a son Krishnaswami Gounder. The first Defendant is the wife of the said Krishnaswami Gounder. After the death of Baithamma Gounder, Ramakkal renovated and reconstructed the temple by putting up permanent constructions in the place of the old thatched shed. She also endowed by exhibit A-1, dated 23rd October 1912 certain properties to the temple for its upkeep and for performance of poojas therein. Under the said deed she had appointed herself as the trustee of the temple. She was in management of the temple and the endowed properties as its trustee on and from 23rd October 1912. Later the said Ramakkal had endowed to the temple some more properties by her Will exhibit A-2, dated 9th June 1946. Under the said Will she had appointed Krishnaswami the first Defendant''s husband as the managing trustee and the Plaintiff as his co-trustee for management of the temple and its properties after her life time. The said Will also contained provisions for due administration of the properties and performance of poojas as also for appointment of new trustees when vacancy arose in the office of trustees. Ramakkal died in 1952. Though under the Will of Ramakkal the Plaintiff had been appointed as a trustee after her life time along with the said Krishnaswami, the Plaintiff did not associate himself with the management for the reason that there was strained relationship between himself and Krishnaswami. Therefore, Krishnaswami alone continued to be the sole trustee practically till a year before his death on 2Sth August 1958. These are admitted facts. However, there is controversy as to what happened subsequently. It is the case, of the Plaintiff that on the death of Krishnaswami, he is entitled to act as a trustee appointed by the Will of Ramakkal and that the first Respondent is not entitled to be in management of the temple and its properties after the death of Krishnaswami, and that even if his claim as a hereditary trustee is not accepted, there should be fresh appointment of legal trustees as per the directions contained in the Will of Ramakkal.

The first Respondent''s case was that the suit temple is not a public temple and, therefore, there cannot be any appointment of trustees under the Act and that in any event she having been co-opted as a ''trustee and later appointed as a managing trustee by her husband Krishna-swami some time before his death, she should be declared to be a hereditary trustee.

The rival claims were considered by the Deputy Commissioner and the Commissioner on appeals. They have held that the suit temple is a public temple coming within the purview of the Hindu Religious and Charitable Endowments Act and that the first Respondent''s stand that it is not a public temple cannot be countenanced. They had however declared the first Respondent to be a hereditary trustee of the temple by virtue of her having been co-opted as a trustee by her husband, Krishnaswami some time before his death. The Plaintiff felt aggrieved against only that portion of the orders of the Deputy Commissioner and the Commissioner, which rejected his claim to be a hereditary trustee and upheld a similar claim put forward by the first Respondent and, therefore he filed these suits to set aside that portion of the orders of the Commissioner and the Deputy Commissioner. Therefore, the issue whether the suit temple is a public temple or not is not the subject-matter of the suit and we have therefore to proceed on the basis that the suit temple is a public temple.

Both the parties have adduced evidence in support of their respective claims. The trial Court, on a consideration of the evidence, rejected the claim of the Appellant and upheld the claim of the first Respondent on merits. One of the defences taken by the first Respondent in both the suits was that the suits are not maintainable for the reason that the Commissioner, whose orders are sought to be set Aside, had not been made a party to the suits and that the non-joinder of the Commissioner, a necessary party against whom alone the statutory relief can be had, would entail the dismissal of the suits in limine. This defence has been rejected by the Court below holding that the non-joinder of the Commissioner as a party to the two suits is not fatal to the maintainability of the suits.

In these appeals, the learned Counsel for the Appellant contends that the decision of the Court below on merits cannot be sustained and that the evidence on record fully supports his claim to be a hereditary trustee and disproves the claim put forward by the first Respondent. He also points out that to meet the legal objection raised by the contesting Respondent as to the maintainability of the suits, the Commissioner has been impleaded as the second Respondent in both the appeals by way of abundant caution, though in law, he is neither a proper nor necessary party and, therefore, the point as to the maintainability of the Suits can no longer subsist.

On the merits of the rival claims for hereditary trusteeship of the suit temple, the learned Counsel refers to the terms of the Will of Ramakkal, exhibit A-2, dated 9th June 1946 and contends that, he having been appointed as one of the trustees by the founder, the fact that he was not associated with the management of the temple during the life time of the said Krishnaswami will not deprive him of his right to be a trustee and that he had not in fact abandoned or relinquished his trusteeship at any time as alleged by the first Respondent. But we find on a consideration of the evidence and the conduct of the Appellant after the death of Ramakkal that though the trusteeship right accrued to him under the terms of her Will exhibit A-2 he had in fact relinquished or abandoned his right Some time after the death of Krishnasami the first Respondent filed an application u/s 57(a) of the Act in O.A. 41 of 1959 for a declaration that the temple is a private temple exclusively belonging to the members of her family. The Appellant coming to know of that application filed a petition exhibit B-4 before the Deputy Commissioner for impleading him as a Respondent and to hear his objections to the claim of the first Respondent. In that petition he has stated that the temple is a public temple, that it has vast endowments yielding an annual income of Rs. 10,000 and more, that there are no legal trustees to administer the affairs of the temple and that he had already moved the Assistant Commissioner for the appointment of legal trustees to assume management and administration of the temple. In that petition he has not stated that he is functioning as or continues to be a trustee. He had been impleaded as a Respondent in O.A. 41 of 1959 and after such impleading he filed a counter statement, exhibit B-3 wherein he has stated:

Krishnaswami Gounder never wanted the assistance or co-operation of the other trustee nor did he permit him in participating in the functions of his office. This Respondent therefore withdrew from his office and did not participate in the administration.

in the additional counter affidavit exhibit A-7 filed by him in the same proceedings be states:

The Respondent submits than as already stated in his original counter, he was not Consulted on any matter in regard to the temple, he did not participate in the administration.

The report of the Assistant Commissioner exhibit A-8 submitted to the Deputy Commissioner in the above proceeding based on his local enquiry after taking the statements from the persons concerned states:

Sri Attimuthu Gounder does not appear to have taken any part in the administration of the temple, while Krishnaswami Gounder was alive. Even after the death of Krishnaswami Gounder, he has not made any attempt to enforce the provisions of the Will of Ramakkal, dated 1946 and get at the management Instead he has applied to this Department to appoint him as a trustee of the institution u/s 41 of the Act.

The above documents clearly establish that the Appellant in fact withdrew from the trusteeship and did not participate in the management of the temple after Ramakkal''s death in 1952. The explanation attempted by the Appellant in these proceedings is that the relationship between himself and Krishnaswami was not cordial and, therefore, he could not associate himself in the affairs of the temple as) a trustee and assert his rights as a trustee when Krishnaswami was alive. Whatever be the relationship between the Appellant and Krishnaswami, the non-exercise of the right of trusteeship by the Appellant by participating in the Management or at least seeking an account from Krishnaswami of his management of the temple clearly indicates that the Appellant has relinquished or abandoned his right This has been admitted by the Appellant himself in his counter exhibit B-3 wherein he clearly admits that he withdrew from the trusteeship of the temple. The non-participation in the management of the temple by the Appellant and his unwillingness to associate himself with the affairs of the temple along with Krishnaswami should be taken to show his intention not to take up the trusteeship as per the Will of Ramakkal. We have to, therefore, agree with the Court below that when the Appellant failed to act as a trustee in pursuance of exhibit A-2 right from the date of death of Ramakkal, he is not now entitled to claim the hereditary trusteeship of the suit temple. We therefore find that O.A. 17 of 1960 and Original Suit No. 135 of 1963 in which the Appellant claimed such a right have rightly been dismissed. Hence Appeal Suit No. 775 of 1967 fails and is dismissed.

As regards the claim put forward by the first Respondent to be a hereditary trustee of the suit temple, it is seen that her claim is mainly based on exhibit B-9, dated 21st August 1957, a letter said to have been written to her by her husband while he was in the hospital It has been claimed by the first Respondent that under this letter her husband has co-opted her as a trustee along with him in pursuance of the terms of Ramakkal''s Will, exhibit A-2, This case has been accepted by the Deputy Commissioner and the Commissioner, but the Court below has stated that though the said letter exhibit B-9 is not sufficient to show that the first Respondent has been co-opted as a co-trustee by her husband, it shows that he had entrusted the first Respondent with the management of the affairs of the temple, that she had managed the temple, when her husband was ailing, as a person appointed by her husband to perform the duties of a trustee and that such appointment of the first Respondent as a trustee by her husband was in pursuance of the power given to him for co-option under exhibit A-2. But on due consideration of the matter we are not inclined to hold that either exhibit B-9 or the other evidence in the case establish that the first Respondent was in fact appointed or co-opted as a trustee by her husband as per the terms of the Will exhibit A-2. If at all they can establish that the first Respondent was managing the affairs of the temple on behalf of her husband when he was ailing and as a de facto trustse after his death. Though exhibit B-9 was relied on as establishing the factum of appointment of the first Respondent as a trustee by her husband at the earlier stages, it is now merely relied on for the purpose of showing that she was in actual management even during the life time of her husband-The present case of the first Respondent is that she was co-opted as a trustee by her husband a year before his death and that she was appointed as the managing trustee just six months before his death, and her oral evidence in the case is relied on in support of the said case.

Before dealing with the claim put forward by the first Respondent to be a hereditary trustee of the suit temple by virtue of the appointment made by her husband, it is necessary to scan through the terms of exhibit A-2 which provides the mode of appointment of trustee if vacancies arise in the office of trustees. Under the Will Ramakkal ; appointed Krishnaswami as the managing trustee and the Appellant as his co-trustee. She also provided in the Will that if the said managing trustee did not property manage the temple or did not under account to the other trustee, the other trustee can remove the managing trustee and appoint a proper person from and out of her family members to be a managing trustee, that if a vacancy arises in the office of trusteeship as a result of any resignation or otherwise, a proper person from and out of her family members could be co-opted by the existing trustee, and that if both the trustees do not carry on the affairs of the temple properly or misappropriate or mismanage the temple properties or funds, her family members are empowered to remove the trustees and appoint fresh trustees in their place. If for any reason both the trustees had vacated their office, her family members can appoint from among themselves three trustees for managing the affairs of the temple.

The first Respondent claims that she has been co-opted by her husband as a trustee in the vacancy caused by the Appellant''s relinquishment of his office of trusteeship. It must be remembered that the Appellant did not take up the office of trusteeship after the death of Ramakkal. Therefore, the vacancy arose even in the year 1952 when Ramakkal died. It is said that Krishnaswami thought of co-opting his wife as a co-trustee just before his death for the proper management of the temple and its affairs. Admittedly there is no document to evidence such an appointment except exhibit B-9. Exhibit B-9 is a letter written by Krislmaswami to his wife when be was ailing at Madras. This letter does not show that Krishnaswami has co-opted the first Respondent as a co-trustee. He merely expressed therein his satisfaction at the way the first Respondent is managing the affairs of the temple in his absence. It is urged on behalf of the first Respondent that the appointment as a co-trustee was made long earlier and that this letter shows that she has been in management of the temple and its affairs as a trustee. We are unable to read this letter as showing any such thing. It is seen that the first Respondent has been developing her case at various stages that she was a co-trustee appointed by her husband during his life time. In her petition in O.A. 41 of 1959 seeking a declaration that the temple is a private temple, she stated that shortly before her husband''s death he appointed her as his co-trustee and entrusted her with the management of the affairs of the temple and its properties and that she was in management as and from that time. In her earlier statement exhibit A-10 dated 31st July 1959 before the Assistant Commissioner when he came for an enquiry regarding the affairs of the temple she has stated that after her husband''s death she has been managing the temple, that even during the lifetime of Ramakkal the management was being supervised by herself and her husband, that after the death of her husband she has been in exclusive management and that she was not appointed as a co-trustee and managing trustee by her husband prior to his death as stated in paragraph 5 of her petition. In her evidence before the Deputy Commissioner in O.A. 41 of 1959 she has stated:

My husband suffered from cancer for one year before his death. Even during that period he was not assisted by any one except myself. He wrote a letter from Madras where he underwent treatment asking me to manage the temple.

Even in her evidence before the Deputy Commissioner she has merely relied on the letter exhibit B-9 and does not refer to her alleged appointment as a trustee or as a managing trustee even during the life time of her husband. She has, however, developed her case at the stage of the trial of the suits and had deposed:

My husband had appointed me as trustee prior to his death. This was one year prior to his death. He had an attack of cancer at that time and was bedridden. He had appointed me as managing trustee subsequently...I have written to my husband that I am doing management of the temple property and thereafter he wrote exhibit B-9 letter to me.... During his life time he was managing me temple as managing trustee. Even during his life time when he was ailing I was managing the temple and its properties as managing trustee for a period of six months. For six months prior to that I was looking after the temple as ordinary trustee.

Having regard to the fact that the temple has got vast extent of properties of about 100 acres, the plea put forward by the first Respondent that she was appointed as a trustee orally by her husband some time before his death cannot be straightaway accepted without further corroborative material. In this case, except the ipse dixit of the first Respondent there is no other evidence, either oral or documentary to prove such an appointment. If really Krishnaswamy wanted to appoint his wife as a co-trustee, one would have expected him to put it in writing so that the appointment could not be challenged by others. Further, Krishnaswami could not have appointed his wife as the managing trustee orally or otherwise as such a power is not conferred on him by the terms of the Will exhibit A-2. Even on the question as to whether Krishnaswami appointed the first Respondent as his co-trustee, we are not satisfied that the evidence on record is sufficient to establish such art appointment. The evidence merely discloses that the first Respondent was attending to the affairs of the temple when her husband was ailing and after her husband''s death. But that will make her only a de facto trustee. We are not, therefore, in a position to uphold the claim of the first Respondent that she was appointed as a co-trustee along with her husband during his life time as per the terms contained in the Will. The fact that she has been functioning as a de facto trustee of the temple after the death, of her husband, Krishnaswami will not entitle her to claim the status of here ditary trustee of the temple as per exhibit A-2. Thus the position is that there are no legally constituted trustees for the temple. On this view, the finding of the Court below as well as the order of the Commissioner that the first Respondent is a hereditary trustee have to be set aside.

However, the learned Counsel for the first Respondent contends that the suits having been filed without impleading the Commissioner whose orders are sought to be set aside, they are liable to be dismissed in limine, and reliance is placed on an unreported Bench decision of this Court in Appeal Suit No. 744 of 1966. In that case the Bench has followed the decision of another Bench of this Court in Ramaswami Velar v. Pidaran 83 L.W. 553 and held that the Commissioner whose order is sought to be set aside is a necessary party to the suit, that in his absence his order cannot be set aside or interfered with, and that the non-joinder of the Commissioner will necessarily entail the dismissal of the suit. A perusal of the judgment in Ramasami Velar v. Pidaran 83 L.W. 553 shows that after having held that in the absence of the Commissioner whose order is sought to be cancelled in the suit it is not possible for the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit, the Court actually impleaded the Commissioner as a party-Respondent in the appeal and remanded the suit to the Court below for fresh consideration. Though in this case the Court below held that the Commissioner is not a necessary party to the suit, the Appellant, as already stated, has already obtained an order impleading the Commissioner as a party Respondent in these appeals. The question is whether the matters should be sent back to the Court below for fresh disposal.

We are of the view that the Commissioner having passed his order after taking into account the materials which have been substantially put in evidence in these cases, there is no necessity to send back the suits for fresh disposal. Besides, the learned Counsel appearing for the Commissioner does not seek a remand for a fresh disposal of the suits;.

The learned Counsel for the first Respondent would, then contend that even if the Commissioner has been impleaded as a party Respondent, such impleading can only be subject to the provisions of Order XLI Rule 20 CPC and therefore the order impleading the Commissioner after the period of limitation prescribed by Section 70 of the Hindu Religious and Charitable Endowments Act, 1959 is bad. But the order impleading the Commissioner as a party Respondent has not been challenged and has been allowed to become final.

It is true, in this case, the Commissioner has been impleaded as a party Respondent only in the appeal and not at the stage of the suit and therefore, the impleading was after 90 days, the period prescribed for a suit u/s 70. According to the learned Counsel for the first Respondent the suits should be taken to have been filed as against the Commissioner only on the date when he was impleaded in the appeal and therefore the suit as against him should be dismissed in which event no relief could be given to the Appellant in the suit filed by him. It is well established that the appellate Court can, under Order I Rule 10 read with Section 107--or by virtue of its inherent power, add a party as a Respondent in the appeal if the interest of justice requires. As a matter of fact the learned Counsel for the first Respondent did not challenge the power of the appellate Court to add the Commissioner as a party Respondent at the appellate stage in exercise of its inherent power. But what he contends is that though the Commissioner has been impleaded as a Respondent the suit should be deemed to have been filed as against him only on the date of impleading and that in such a case the suit as against him should be rejected as out of time. It has to be remembered that the Appellant who is the Plaintiff in both the suits has not sought any relief as against the Commissioner and he merely seeks to set aside the order passed by him in his quasi-judicial capacity. Having regard to the revival claims to the trusteeship put forward by the Appellant and the first Respondent, the Commissioner cannot be said to be interested in supporting the claim either of the Appellant or of the first Respondent. Therefore, whatever be the decision that is rendered by the Court with reference to the rival claims to the hereditary trusteeship of the temple, the Commissioner cannot be said to be affected. The result of nonjoinder of the Commissioner within the time prescribed u/s 70 will not entail the dismissal of the suit for non-joinder of the Commissioner.

It has been held by this Court in a series of decisions that where the substantial dispute between the parties is as to which of them is the hereditary trustee, it cannot fall within the ambit of Section 63 of Madras Act XXII of 1959. Only when the dispute is as to whether the office of the trusteeship in a temple is hereditary or not Section 63 will apply and the matter has to be decided by the Deputy Commissioner and then by the Commissioner on appeal. It can therefore be said that the Commissioner is a necessary party only to a suit where the question is whether the office of the trusteeship in a temple is hereditary or not, and not when the dispute centres round as to which of the rival claimants is entitled to be a hereditary trustee in that temple. The Goundars of Vilangathur village and Others Vs. The Udayars of Vilangathur village and Others, , Chinnathambi Mooppan v. Mamundi Mooppan 79 L.W. 173, A. Krishnaswami Raja Vs. Krishna Raja and Another, , S. Rangayya Goundar (died) and Others Vs. Karuppa Naicker and Others, Therefore, even if no relief be granted against the Commissioner in view of the suit not having been filed as against him within 90 days as prescribed in Section 70, the Court can consider the claims put forward by the Appellant in both the suits and the Court cannot dismiss the suit without adjudicating the rival claims put forward by the parties to the suit on the ground of non-joinder of the Commissioner. It would be a different matter if the Commissioner is interested in the dispute and in sustaining the order. In respect of rival claims to a hereditary office the Commissioner cannot be said to be interested in either of the parties, though he is interested in the proper administration of the institution.

Ramaprasada Rao J. in Muthiah Nattar v. Ibrahim Rowther 80 L.W. 419 has expressed the view that though an application to implead a third party was filed beyond the period of limitation, yet Courts are not helpless to pass appropriate decree or afford appropriate relief to the party affected, namely the Plaintiff or Petitioner in the suit or proceeding concerned. The learned Judge said:

In such cases it is the duty of the Court, whose concept and ideal should be to maintain justice, equity and good conscience, to see that it should not by a mere application of the, letter of the law, affect its spirit and intendment and fail to afford such necessary and adequate relief to the Petitioner by dismissing the same as against the third party impleaded beyond time. As I am entirely in agreement with the reasoning of Ramamurti J. that such a third party appears to be not even a necessary party to such proceeding, I am inclined to hold that the Petitioner in this case ought not to be non-suited or his petition dismissed as against the third party merely on the ground that the petition has been filed beyond time.

In this connection we find that the decision in Ramaswami Velar v. Pidaran 83 L.W. 568 has not specifically held that the Commissioner is a necessary party for whose absence the suit entails dismissal. But this decision has been understood by the Bench in the unreported decision in Appeal Suit No. 744 of 1966 as laying down the view that the Commissioner is a necessary party to the suit and that he not having been impleaded, the suit has to fail. In Ramaswami Velar v. Pidaran 83 L.W. 568 if the learned Judges had taken the view that the Commissioner is a necessary party and that the non-joinder of the Commissioner as a party Defendant would result in the dismissal of the suit in limine, they would have not impleaded the Commissioner at the stage of the appeal and remitted the matter for fresh consideration to the Court below. The learned Judges had expressed the view that if the Commissioner is not made a party, there might be two conflicting decisions on the rival claims of parties one by the Court and the other by the Commissioner in whose absence his order cannot be set aside, and that to obviate such an anomalous position it was proper to implead the Commissioner as a party and, decide the rival claims of parties in his presence.

It has been held in Wishwambhar Pandit v. Prabhakar Bhat ILR 8 Bom. 269 that neither the registering Officer nor the Government was a necessary party to a suit u/s 77 of the Registration Act of 1877 against the order refusing to register a document where the registration has been opposed, on the ground that the persons who had opposed the registration alone is a necessary and proper party. In Penumoody Kanakaratnam Vs. Penumoody Venkataratnam, Leach CJ., speaking for the Bench while approving the principle laid down in the said decision had however, held that where there was no opposing party and the only opposition for registration came from the Registrar himself, the Registrar is a necessary party to the statutory suit u/s 77 of the Registration Act and the suit filed without impleading him at a party Defendant should be dismissed in limine, without going into the merits, as not being maintainable. In this case there are rival claims to the office of the hereditary trustee and each party is opposing the claim put forward by the other and, therefore, the suit filed by one of the rival claimants against the decision of the Commissioner to establish his claims and to cancel the orders of the Commissioner which stand in the way of his claim cannot be dismissed merely because the Commissioner has not been made a party. Order I Rule 9 of the Code of CPC enjoins that no suit shall be defeated by reason of the non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as the rights and interests of the parties are actually before it. The. general rule is that no suit shall be defeated by reason of non-joinder of parties, the exception to that general rule being that a Court will refrain from passing a decree which would be ineffective and in fructuous either due to the nature of the action or the interest that the person who is not before the Court has in its subject-matter. It it true that where there is a legal requirement that a person should be impleaded as a party, the suit must fail on the ground of non-joinder, but where there is no such legal requirement, as in this case, there is no reason why the suit should be dismissed for non-joinder of parties if the Court could deal with the disputes inter-se between the parties before the Court. The effect of impleading the Commissioner as a party at the appellate stage would be that the Court cannot give any effective relief or decree against the Commissioner. But in statutory suits such as the present one where no reliefs have been claimed against the Commissioner and only the quasi-judicial orders passed by the Commissioner at the instance of the parties are challenged, the Commissioner is usually impleaded as a party so that the Court could go into the rival claims of parties in the presence of the Commissioner. In the circumstances as these, it cannot be said that even after impleading the Commissioner, he could still say that he is not bound by the decree. Therefore, the Court can give an effective decree to either of the rival claimants in the presence of the Commissioner. We are, therefore, of the view that the suits cut of which the appeals have arisen are not liable to be dismissed in limine on the ground of nonjoinder of the Commissioner.

The first Respondent, in her evidence, has clearly admitted that more than 100 acres of land have been endowed to the temple by Ramakkal in 1946, that they consist of garden land, thopes and dry lands and that they will yield Rs. 10,000 per year. She would however state that there was no surplus income from the endowed properties all these years and that neither her husband nor herself has maintained any accounts as trustees in relation to the income and expenses of the temple so far. This shows that the income from the endowed properties from 1946 was not been accounted for. It is clear, therefore, that the administration of the tenure by the first Respondent as a de-facto trustee is far from satisfactory, this necessitates the immediate appointment of trustees as per the terms of the Will and is quite contrary to the terms of the Will, exhibit A-2. According to the Will if for any reason the office of the trustees falls vacant, the members of the family of the testatrix have to select three trustees from amongst themselves and the three trustees so appointed will have to administer the temple and its affairs. We, therefore, suggest that the Deputy Commissioner, Hindu Religious and Charitable Endowments may, in the interest of the proper administration of the temple, initiate proceedings for settlement of a scheme u/s 64 of the Act providing inter alia for appointment of hereditary trustees in accordance with the wishes of the founder as expressed in the Will exhibit A-2 and defining clearly their respective powers and duties.

With the above observations, Appeal Suit No. 744 of 1967 is allowed and the order of the Commissioner affirming the order of the Deputy Commissioner holding the first Respondent to be the hereditary trustee of the suit temple is set aside. There will be no order as to costs in either of these appeals.