Karnataka High Court

Sri. Harshavardhan Hegde vs The State Of Karnataka on 3 June, 2024

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                                                        NC: 2024:KHC:18963
                                                     MFA No. 2685 of 2023
                                                 C/W MFA No. 2570 of 2023



                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 3RD DAY OF JUNE, 2024

                                        BEFORE
                          THE HON'BLE MR JUSTICE R. NATARAJ

                      MISCELLANEOUS FIRST APPEAL NO.2685 OF 2023
                                          C/W
                MISCELLANEOUS FIRST APPEAL NO.2570 OF 2023 (R/C)

                IN MFA NO.2685 OF 2023:
                BETWEEN:

                SRI. HARSHAVARDHAN HEGDE
                S/O NARAYANA HEGDE,
                AGED ABOUT 55 YEARS,
                R/AT PATEL HOUSE, CHERKADI VILLAGE,
                BRAHAMMAVARA TALUK AND
                UDUPI DISTRICT-576 215.

                                                              ...APPELLANT
                (BY SRI. KETHAN KUMAR, ADVOCATE)

                AND:
Digitally
signed by
RENUKA          1.    THE STATE OF KARNATAKA,
Location:             MUZARAI DEPARTMENT,
High Court Of         DR. AMBEDKAR VEEDHI,
Karnataka             BENGALURU-560 001,
                      REPRESENTED BY ITS
                      PRINCIPAL SECRETARY.

                2.    RAJYADHARMIKA PARISHATH AND
                      HINDU RELIGIOUS INSTITUTIONS AND
                      CHARITABLE ENDOWMENTS,
                      2ND FLOOR, SRI MINTO ANJANEYA BHAVAN,
                      ALUR VENKATA RAO ROAD, CHAMARAJAPETE,
                      BENGALURU-560 019,
                      REPRESENTED BY ITS SECRETARY.
                           -2-
                                         NC: 2024:KHC:18963
                                     MFA No. 2685 of 2023
                                 C/W MFA No. 2570 of 2023




3.   THE COMMISSIONER HINDU RELIGIOUS
     INSTITUTIONS AND CHARITABLE
     ENDOWMENTS IN KARNATAKA,
     2ND FLOOR, SRI MINTO ANJANEYA BHAVAN,
     ALUR VENKATA RAO ROAD, CHAMARAJAPETE,
     BENGALURU-560 019.

4.   SRI. VEERABHADRA TEMPLE HIRIYADKA,
     BOMMARABETTU VILLAGE,
     UDUPI TALUK AND DISTRICT-576 113,
     REPRESENTED BY ITS EXECUTIVE OFFICER.

5.   DR. SUNIL HEGDE
     S/O LATE BALAKRISHNA HEGDE,
     AGED ABOUT 64 YEARS,
     R/AT NO.182/3, SUNISH,
     RMV 2ND STAGE, SANJAYNAGAR,
     BENGALURU-560 094.

     ALSO AT MOMBETTU POST HIRIYADKA,
     UDUPI TALUK AND DISTRICT-576 113.

6.   MR. JAYAPRAKASH HEGDE
     S/O LATE SADASHIVA HEGDE,
     AGED ABOUT 77 YEARS,
     R/AT PRASHANTI ENCLAVE,
     BRAHMAVARA,
     UDUPI DISTRICT-576 213.

                                            ...RESPONDENTS

(SMT. LEENA UDAYSHANKAR, HCGP FOR R1 TO R4;
 SRI SUBRAMANYA R., ADVOCATE FOR
 SRI VINAYAKA B. VISHNU BATTA, ADVOCATE FOR R5;
 SMT. SINCHANA M.R., ADVOCATE FOR R6)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 63A OF THE KARNATAKA RELIGIOUS AND
CHARITABLE ENDOWMENTS ACT, 1997, PRAYING TO CALL
FOR THE ENTIRE RECORDS IN CASE NO.ADM8 CR 128 OF
2017-18 FROM THE SECOND RESPONDENT, PERUSE THE SAME
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                                       NC: 2024:KHC:18963
                                    MFA No. 2685 of 2023
                                C/W MFA No. 2570 of 2023



AND DECLARE AND STRIKE DOWN THE IMPUGNED PROFESSED
PROCEEDINGS OF THE RESPONDENT NO.2 VIDE ANNEXURE-A
DATED 28.03.2023.

IN MFA NO.2570 OF 2023:
BETWEEN:

MR. JAYPRAKASH HEGDE
SON OF LATE SADASHIV HEGDE,
AGED ABOUT 77 YEARS,
RESIDING AT PRASHANTI ENCLAVE,
BRAHMAVARA,
UDUPI DISTRICT-576 161.

                                             ...APPELLANT

(BY SMT. SINCHANA M.R., ADVOCATE)

AND:

1.   THE STATE OF KARNATAKA,
     MUZARAI DEPARTMENT,
     DR. AMBEDKAR VEEDHI,
     BENGALURU-560 001,
     REPRESENTED BY ITS
     PRINCIPAL SECRETARY.

2.   RAJYA DHARMIKA PARISHATH HINDU
     RELIGIOUS INSTITUTIONS AND
     CHARITABLE ENDOWMENTS,
     2ND FLOOR, SRI MINTO ANJANEYA BHAVAN,
     ALUR VENKATA RAO ROAD, CHAMARAJPETE,
     BENGALURU-560 019,
     REPRESENTED BY ITS SECRETARY.

3.   THE COMMISSIONER HINDU RELIGIOUS
     INSTITUTIONS AND CHARITABLE
     ENDOWMENTS IN KARNATAKA,
     ALUR VENKATA RAO ROAD,
     CHAMARAJPETE, BENGALURU-560 019.
                            -4-
                                         NC: 2024:KHC:18963
                                     MFA No. 2685 of 2023
                                 C/W MFA No. 2570 of 2023



4.   SRI. VEERABHADRA TEMPLE HIRIYADKA,
     BOMMARABETTU VILLAGE,
     UDUPI TALUK AND DISTRICT-576 161,
     REP. BY ITS EXECUTIVE OFFICER.

5.   DR. SUNIL HEGDE
     SON OF LATE BALAKRISHNA HEGDE,
     AGED ABOUT 68 YEARS,
     RESIDING AT NO.182/3,
     SUNISH, RMV 2ND STAGE,
     SANJAYNAGAR, BENGALURU-560 094.

     ALSO AT MOMBETTU POST HIRIYADKA,
     UDUPI TALUK AND DISTRICT-576 101.

6.   SRI. HARSHAVARDHAN HEGDE
     SON OF NARAYANA HEGDE,
     AGED ABOUT 52 YEARS,
     RESIDING AT CHARKADI VILLAGE,
     UDUPI TALUK AND DISTRICT-576 101.

                                            ...RESPONDENTS

(SMT. LEENA UDAYSHANKAR, HCGP FOR R1 TO R4;
 SRI SUBRAMANYA R., ADVOCATE FOR
 SRI VINAYAKA B., ADVOCATE FOR R5;
 SRI ABHISHEK, ADVOCATE FOR R6)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 63-A (1) OF THE KARNATAKA HINDU RELIGIOUS
CHARITABLE ENDOWMENTS ACT, 1997, PRAYING TO SET
ASIDE THE IMPUGNED ORDER DATED 28.03.2023 VIDE        CASE
NO.ADM 8 CR 128 OF 2017-18 (ANNEXURE-A) AND DISMISS
THE APPLICATION FILED BY THE RESPONDENT NO.5 AND
GRANT ALL CONSEQUENTIAL RELIEFS.


      THESE APPEALS COMING ON FOR FURTHER DICTATION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                                            NC: 2024:KHC:18963
                                         MFA No. 2685 of 2023
                                     C/W MFA No. 2570 of 2023



                         JUDGMENT

The appellants herein are aggrieved by an order

dated 28.03.2023 passed by respondent No.2, by which he

appointed Dr.Sunil Hegde as a fit person under Section

25-A (3) of the Karnataka Hindu Religious Institutions and

Charitable Endowments Act, 1997 to administer the

respondent No.4-temple.

2. The appellants contend that the respondent

No.4 is an ancient temple and is declared as an excepted

temple under the provisions of Section 9(5) of the Madras

Hindu Religious Endowments Act, 1927. This temple was

managed by the hereditary trustees of two families namely

the Alva Hegde and Kurla Hegde families. The appellants

contend that both the families had contributed large

extent of land for the benefit of the respondent No.4-

temple and that the said fact was recorded in the Tasdik

22.11.1875 and also in the Title Deed issued by the

Government of Madras dated 06.03.1930. They contended

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that Alva Hegde had four sub-branches namely

1)Paddambeedu Padupalu, 2)Paddambeedu Moodupalu,

3)Paddambeedu Kallubettu, 4)Paddambeedu Kapiyadi.

Likewise, the Kurla Hegde family had three branches

known as 1)Vonthibettu, 2)Anjarubeedu and 3)Mumbettu.

Amongst the Alva Hegde family, they had evolved a

custom whereby the eldest male member would be

unanimously selected by all the members of the four

branches as the hereditary trustee of the respondent No.4.

Likewise, the members of the Kurla Hegde family would

unanimously select a member of their family as a

hereditary trustee of the respondent No.4. The appellants

claim that for more than three generations, this custom

was followed consistently.

3. The appellant in MFA No.2685/2023 claimed

that he was discharging the duties of a hereditary trustee

of the respondent No.4. The appellant contends that in the

year 1970-71, a dispute arose between the Kurla Hegde

family and the Alva Hegde family regarding the

NC: 2024:KHC:18963

management of respondent No.4-temple. Accordingly,

Mr. T.Vittal Hegde from the Alva Hedge family and

Mr. A.Devadas Alva and Mr. M. Balakrishna Hegde from

Kurla Hegde family had applied for the hereditary

trusteeship before the Deputy Commissioner, Mangaluru.

The Deputy Commissioner in terms of the order dated

16.02.1971, appointed Mr.Balakrishna Hegde as a fit

person to discharge the functions as a trustee of the

respondent No.4, until the issue regarding hereditary

trusteeship was resolved. In the meanwhile, Mr. T.Vittal

Hegde from the Alva Hegde family filed an application

under Section 57(b) of the Madras Hindu Religious and

Charitable Endowments Act, requesting the Deputy

Commissioner HR&CE, D.K. Mangalore to declare him as a

hereditary trustee and the managing trustee of the

respondent No.4. This application was allowed and

Mr. T.Vittal Hegde was declared as a hereditary trustee in

terms of the order dated 02.07.1990. This was challenged

by Mr.Balakrishna Hedge of the Kurla Hegde family in an

appeal before respondent No.3, who dismissed it in terms

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of an order dated 14.02.1991. Dissatisfied with that order,

Mr.Balakrishna Hegde filed a Revision Petition No.33/1991

before the Karnataka Appellate Tribunal, which allowed the

appeal in terms of the order dated 02.08.1995. Feeling

aggrieved by the said order, Mr. T.Vittal Hegde from the

Alva Hegde family filed W.P.No.41041/1995 and this Court

allowed the writ petition and quashed the order passed by

the Karnataka Appellate Tribunal and restored the order

passed by the Deputy Commissioner and Commissioner

HR&CE dated 14.02.1991.

4. The appellant contends that Mr.Balakrishna

Hegde without challenging the order passed by this Court

in W.P.No.41041/1995 filed another writ petition in

W.P.No.24964/2000 again challenging the earlier order

dated 02.07.1990 passed by the Deputy Commissioner,

HR&CE, D.K. Mangalore. This Court dismissed

W.P.No.24964/2000 in view of the observations made in

W.P.No.41041/1995. The appellant therefore contends

that the order dated 02.07.1990 passed by the Deputy

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Commissioner, HR&CE, D.K. Mangalore became final and

Mr. T.Vittal Hegde from the Alva Hegde family was

declared as a hereditary trustee of Alva Hegde family. The

appellant contends that Mr. T.Vittal Hegde died on

01.05.2006 and therefore, the appellant being a member

of the Alva Hegde family had stepped into the shoes of

Mr. T.Vittal Hegde and succeeded to the office of the

hereditary trustee of respondent No.4. The appellant

contends that all the members of four branches of Alva

Hegde family entered into an agreement dated 24.06.2017

which was duly registered before the office of the

Sub-Registrar, Udupi in terms of which, all of them had

accepted that the appellant shall be the successor to the

office of the hereditary trustee of the respondent No.4.

The appellant armed with the consensus amongst all the

members of the family which was evidenced by the

agreement dated 24.06.2017, submitted the same before

the respondent No.3, who passed an order dated

26.03.2018 declaring the appellant as a hereditary trustee

from the Alva Hegde family and Mr.Govardhan Hegde from

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the Kurla Hegde family. This order was passed on

26.03.2018.

5. The respondent No.5 who was the son of

Mr.Balakrishna Hegde, the last link to the Kurla Hegde

family, challenged the order dated 26.03.2018 in MFA

No.7470/2018 before this Court. This Court in terms of the

order dated 22.02.2019, allowed the appeal and remitted

the case back to respondent No.2 to consider the

application filed by the appellant and Mr.M.Govardhandas

Hegde. The respondent No.2 conducted proceedings on

04.07.2019 and by its order dated 12.07.2019, resolved to

appoint the respondent No.5 as a fit person to administer

the temple pending adjudication of the dispute. Being

aggrieved by the said order, the petitioner and

Mr.Govardhandas Hegde filed MFA No.5968/2019 before

this Court and this Court allowed the appeal in terms of

the order dated 03.02.2020 and directed the respondent

No.2 to consider the application filed by

Mr.M.Govardhandas Hegde and the respondent No.5 for

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appointing as a fit person after affording an opportunity of

hearing all the parties. This order was assailed by the

respondent No.5 before the Apex Court in SLP (C)

No.5201/2020. The Hon'ble Apex Court in terms of an

order dated 06.07.2021, confirmed the order passed in

MFA No.5968/2019 and directed the respondent No.2 to

decide the matter expeditiously, apart from directing the

respondent No.5 to appear before respondent No.2 on

27.12.2022 before the Suvarna Vidhan Soudha, Belagavi.

The appellant appeared before the respondent No.2 and

filed his written statement and contended that he was a fit

person to be appointed to administer the respondent No.4.

In the meanwhile, it was brought to the notice of the

respondent No.2 that the respondent No.5 was no longer a

member of the Kurla Hegde family as he was related to

Kurla Hegde family through his mother and therefore, all

ties severed upon her death. In the meanwhile, a suit was

filed by Mr. Balakrishna Hegde in O.S.No.101/1996 for a

declaration that he was entitled to be appointed as

hereditary managing trustee of the respondent No.4.

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However, Mr.Balakrishna Hegde died later and respondent

No.5 was arrayed as a legal representative. On the

application filed by the respondent No.5, he and his

siblings were transposed as defendants and therefore,

there was no one to pursue the suit and consequently, the

suit was dismissed for non-prosecution on 14.12.2016.

6. The respondent No.5 thereafter filed another

suit in O.S.No.297/2018 for the same reliefs that was

sought for in O.S.No.101/1996 and the same is pending

consideration. Notwithstanding all these proceedings and

the concurrence between Alwa Hegde Family and Kurla

Hegde family, the respondent No.2 appointed respondent

No.5 as a fit person to administer respondent No.4. It is

against this order, that the appellant is before this Court in

MFA No.2685/2023.

7. MFA No.2570/2023 is filed by Mr. Jayaprakash

Hegde who claims to be from the Kurla Hegde Family, who

reiterated the history of hereditary trusteeship of the

respondent No.4 between families of Alva Hegde Family

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and Kurla Hegde Family. The appellant reiterated the

contentions in MFA No.2685/2023 and contended that

Govardhandas Hegde and Harshavardan Hegde were

appointed as hereditary trustee of the temple on

26.03.2018 which was challenged by the respondent No.5

in MFA No.7470/2018, which was allowed in terms of the

order dated 22.02.2019 and the case was remitted back

for fresh consideration. He also contended that the

respondent No.2 appointed respondent No.5 as a fit

person to administer the respondent No.4-temple vide

order dated 12.07.2019, which was challenged before this

Court in MFA No.5968/2019. He also admitted that this

Court disposed off the said appeal directing the respondent

No.2 to reconsider the application filed by

Mr.Harshavardan Hegde and Govardhandas Hegde and

respondent No.5 herein. He also admitted that the

respondent No.5 unsuccessfully challenged the order

passed in MFA No.5968/2019 before the Hon'ble Apex

Court in SLP.No.5201/2020. He contended that one of the

members of the Kurla Hegde Family namely, Mr. Girshi

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Hegde had filed an application before the respondent No.2

for appointment of a hereditary trustee of the respondent

No.4. However, he later withdrew it on 26.07.2021.

Following that, the appellant submitted a representation

dated 26.07.2021 before the respondent No.2 to appoint

him as hereditary trustee of the temple. He contended

that the respondent No.2 held a meeting and required him

to appear before it on 27.12.2022 at Suvarana Vidhana

Soudha, Belagavi on which date, he appeared and filed an

affidavit along with documents and claimed that he was a

fit person to administer the respondent No.4. Despite this,

he contended, the respondent No.2 appointed the

respondent No.5 as a fit person as provided under Section

25-A (3) of the Karnataka Hindu Religious and Charitable

Endowments Act, 1997. The appellant is therefore, before

this Court challenging the appointment of the respondent

No.5 as a fit person to administer the temple-respondent

No.4.

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8. The learned counsel for the appellant in both

the cases submitted that the respondent No.3 was not a

member of either Alva Hegde Family or Kurla Hegde

Family and was not in line to be appointed as hereditary

trustee of the respondent No.4. On the contrary they

contended that the father of the respondent No.5,

Balakrishna Hegde was a last link to the Kurla Hegde

Family as he was related through his wife and after her

death, the respondent No.5 belonged Mulla Katte Family

who was no way related either to Alva Hegde Family or

Kurla Hegde family. Therefore, it is contended that

between the appellant and the respondent No.5, the

respondent No.2 must have chosen any member of the

family of either Alva Hegde Family or Kurla Hegde Family

as a fit person to administer the temple - respondent No.4

and could not have appointed a third party as a fit person

to administer respondent No.4. It is further contended that

in view of the agreement entered into members of Alva

Hegde Family on 24.06.2017, there is consensus that the

appellant in MFA No.2685/2023 shall be person

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representing the Alva Hegde family as hereditary trustee

to administer respondent No.4. Similarly, the appellant in

MFA No.2570/2023 contends that there is agreement

amongst Kurla Hegde family members that he shall be

hereditary trustee to administer respondent No.4.

Therefore, both of them contends that presently there is

no dispute between the two families as to who shall be the

hereditary trustee of respondent No.4 and hence, there is

no need to appoint a fit person under Section 25-A (3) of

the Act of 1997.

9. Per contra, the learned counsel for the

respondent No.5 submits that the appellant in MFA

No.2570/2023 entered the scene recently on 26.07.2021

before the respondent No.2 and requested the respondent

No.2 to appoint him as a fit person to administer the

respondent No.4. He submits that the appellant in MFA

No.2570/2023 has therefore no right to come on record

and pray that he be appointed as a fit person. He further

contends that the father of the respondent No.5 being the

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member of the Kurla Hegde family was earlier appointed

as a fit person to administer the temple - respondent

No.4. Therefore, it is the respondent No.5 who is more

entitled to be appointed as a fit person to look after the

respondent No.4-temple. He also contended that the

father of the respondent No.5 has been discharging duties

and administering the temple from 06.02.1971 onwards

and there is no allegation against either his father or

respondent No.5 till date and hence, the respondent No.2

felt it appropriate to appoint the respondent No.5 as a fit

person. He further contends that a Co-ordinate Bench of

this Court in W.P.No.19651/2015 had passed an order

allowing the respondent No.5 to continue to perform the

religious activities of the temple along with the appellant

and others. He further submits that this order was

confirmed by the Division Bench of this Court and

therefore, the respondent No.5 is entitled to continue as a

fit person. He further relied upon the judgment of the

Apex Court, where the Apex Court had directed the

maintenance of status quo as on 27.05.2020 and submits

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that respondent No.5 was the fit person, who was looking

after the religious activities in the temple and hence,

respondent No.2 was justified in appointing respondent

No.5 as a fit person.

10. I have considered the submissions made by the

learned counsel for the appellants as well as the learned

counsel for respondent No.5.

11. The dispute in both these appeals relates to the

question as to who should be a fit person until the issue

between the Alva Hegde and Kurla Hegde families is

ultimately resolved. Section 25-A of the Act of 1997

relates to an Institution managed by Hereditary Trustee

and reads as follows:

"25-A. Provision relating to Institution managed by Hereditary Trustee.- (1) No committee of management shall be constituted in respect of the notified institutions managed exclusively by hereditary trustees. The power of management shall vest in such hereditary trustee.

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(2) If there is no legal heir to succeed the office of the hereditary trustee, the Rajya Dharmika Parishat or the Zilla Dharmika Parishat, as the case may be, shall constitute the committee of management as provided under Section 25.

(3) When a temporary vacancy occurs in the office of a hereditary trustee and if there is a dispute with regard to right of succession to such office and such vacancy cannot be filled up immediately or when a successor is a minor and has no guardian fit and willing to act or there is a dispute regard to as to who is entitled to succeed such office, the Rajya Dharmika Parishat may appoint a fit person to discharge functions of the office of hereditary trustee until the disability ceases or another successor succeeds to such office:

Provided that in making any appointment, the Rajya Dharmika Parishat shall have due regard to the claims of members of the said family, if any entitled to the succession."

Therefore, appointment of a "fit person" is only an

adhoc arrangement pending adjudication of a dispute as to

who is entitled to succeed to the hereditary office of

Trustee of the temple. Even while appointing a fit person,

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the Rajya Dharmika Parishat shall have due regard to the

claim of members of the family.

12. In the instant case, it is not in dispute that the

temple in question is an excepted religious institution,

where the succession to the office of trustee/trustees is by

heredity. It is also not in dispute that the succession to

the office of the trustees of the temple is from amongst

the eldest male members of the Alva Hegde and Kurla

Hegde families.

13. The respondent No.5 claims to be one of the

hereditary trustees of Mambettu branch of the Kurla

Hegde family.

14. It is now stated before this Court that the eldest

male members of all the three branches of Kurla Hegde

family have entered into a settlement dated 08.02.2018,

in terms of which, they have agreed that they are

governed by the Aliya Santhana law of inheritance. They

also admitted that the Kurla Hegde family has three

branches. The first branch namely Mambettu was from

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Abbakka Hegde, Anjaaru branch was from Muthakka

Hegde and Vonthibettu branch was from Chennamma

Hegde. They also agreed that the hereditary Managing

Trustee shall be from Kurla Hegde family and Moktesar

shall be from Alva Hegde family. They also agreed that the

hereditary managing trustee of the temple shall be rotated

amongst the three Kavarus of Kurla Hegde family once in

two years, which shall commence from Mambettu Kavaru

and then from Vonthibettu Kavaru and then Anjarbeedu

Kavaru respectively.

15. It is not the case of respondent No.5 that apart

from the members mentioned in the agreement dated

08.02.2018, there are other male members in the family

of Kurla Hegde. Now that the members of the family of

Kurla Hegde have arrived at a settlement as to how the

succession to the office of trusteeship has to be filled up,

there is no dispute at present from amongst the members

of Kurla Hegde. The only person who claims contrary to

the claim of the members of the Kurla Hegde is

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respondent No.5, who has filed O.S.No.297/2018 for the

following reliefs:

"a. To declare him as the hereditary managing trustee of Sri. Mahatobara Veerabhadra Temple situated at Hiriadka, Bommarabettu village, Udupi Taluk;

b. To declare that Alva Hegde family members have no right to function as hereditary managing trustee of the temple, as they have lost their right by abandonment, adverse possession and prescription;

c. To grant consequential relief of perpetual injunction to restrain the defendants form interfering with the discharge of duties of hereditary managing trustee of the temple by the plaintiff, in any manner whatsoever."

Therefore, the question whether respondent No.5 is a

hereditary managing trustee of the temple is yet to be

established by him before the Civil Court. Since it is the

claim of the appellants that respondent No.5 is not a

hereditary trustee, respondent No.5 cannot be considered

as a fit person to carry on the religious activities in the

temple, more particularly, when all the other eldest

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members of the family have arrived at a settlement and

they have determined the manner of succession to the

office of hereditary trustee. The respondent No.2 has not