Madras High Court

The Commissioner vs C.Baburaj on 25 June, 2021

                                                                          A.S.(MD)No.41 of 2005

                         BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED: 25.06.2021

                                                   CORAM:

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                            A.S.(MD)No.41 of 2005

                   1.The Commissioner,
                     Hindu Religious and Charitable
                      Endowments Department,
                     Chennai.

                   2.The Deputy Commissioner,
                     Hindu Religious and Charitable
                      Endowments Department,
                     Trichirapalli.                            ... Appellants/Defendants

                                                    -Vs-
                   C.Baburaj                                     ... Respondent/Plaintiff


                   PRAYER: Appeal Suit is filed under Section 70(2) of HR & CE Act 22 of
                   1959, against the Judgment and decree passed in O.S.No.859 of 1994,
                   dated 15.10.2003, on the file of the learned Subordinate Judge,
                   Trichirapalli, decreeing the said suit and praying to set aside the Judgment
                   and decree.


                                     For Appellants        : Mr.R.Ragavendran
                                      For Respondent       : Mr.D.Srinivasa Ragavan




https://www.mhc.tn.gov.in/judis/


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                                                                            A.S.(MD)No.41 of 2005

                                                     JUDGMENT

This appeal is directed against the Judgment and decree dated

15.10.2003 made in O.S.No.859 of 1994 on the file of the Sub Court,

Trichy.

2.The father of the respondent herein filed O.A.No.70 of 1985 before

the Deputy Commissioner of HR & CE, Trichirappalli, under Section 63(b)

of the Tamilnadu HR & CE Act, 1959, seeking declaration that the office

of trusteeship of the petition mentioned temples is hereditary in nature.

The relief was sought in respect of Arulmigu Brahadeeswarar

Temple, Varadaraja Perumal Temple and Pulikuttiamman Temple,

Peruvalanallur Village, Lalgudi Taluk, Trichy District. The said O.A. was

dismissed by order dated 04.09.1991. Questioning the same, appeal was

filed under Section 69(1) of the Act before the HR & CE Department,

Chennai. During the pendency of the appeal, Thiru.Chandrasekaran passed

away and the respondent herein namely C.Baburaj came on record. The

appeal was also dismissed on 24.02.1994. Challenging the said dismissal,

the respondent filed a statutory suit under Section 70 of the Act. The

department filed written statement opposing the suit claim. The learned

trial Judge framed the necessary issues. Oral as well as documentary

evidence were adduced. Ex.A1 to Ex.A15 and Ex.B1 to Ex.B7 were https://www.mhc.tn.gov.in/judis/

A.S.(MD)No.41 of 2005

marked. By the impugned judgment and decree, the learned trial Judge

partly decreed the suit. Declaration was granted in respect of Arulmigu

Brahadeeswarar Temple and Sri Varadaraja Perumal Temple. The suit was

dismissed as regards Pulikuttiamman Temple. Questioning the same, the

department has filed this first appeal under Section 70(2) of the Act.

3.The point for determination is as under:-

“Whether the plaintiff has established that the succession to the office of the trustee of the suit temples devolves by hereditary right or is regulated by usage?”

4.The learned Government counsel appearing for the appellants

reiterated all the contentions set out in the memorandum of grounds and

called upon this Court to reverse the impugned judgment and decree and

allow this appeal.

5.Per contra, the learned counsel appearing for the respondent

submitted that there is no merit in this appeal and pressed for its dismissal.

6.I carefully considered the rival contentions and went through the

evidence on record. The plaintiff sought declaration that the office of the

trustee in respect of the suit temples is hereditary in nature. Though the https://www.mhc.tn.gov.in/judis/

A.S.(MD)No.41 of 2005

department negatived the claim, in the statutory suit, the learned trial Judge

sustained the said claim by setting aside the orders passed by the concerned

authorities of the department. In this first appeal, I am obliged to re-

appreciate the evidence adduced by the plaintiff. The plaintiff has marked

as many as 15 documents in support of his claim. Ex.A4 and Ex.A5 dated

02.08.1944 is a communication approving the register submitted by the then

trustee of Sri.Brahadeeswarar Temple. It is not in dispute that trustee was

none other than Thiru.Rajachidambara Reddiar who is the grand father of

the plaintiff. It is true that a scheme was framed in the year 1959 for the

administration of the temple. The said scheme was marked as Ex.B1.

7.The contention of the learned Government Counsel is that the trial

Court ought to have dismissed the suit and directed that the administration

of the temple should be carried on in accordance with the scheme

provisions. Ex.B1, dated 06.03.1959 (O.A.No.29 of 1958) was addressed

to Thiru.P.B.K.Rajachidambara Reddiar. He was described as the trustee of

the Brahadeeswarar Temple and Varatharaja Perumal Temple. There is

nothing on record to show that this scheme was ever implemented. It is not

the case of the department that after framing the scheme, trustees were

appointed. On the other hand, the forefathers of the plaintiff continued to

remain in the office of trustee in respect of the said two temples. Even after https://www.mhc.tn.gov.in/judis/

A.S.(MD)No.41 of 2005

the petition under Section 63(b) of the Act was filed in the year 1985, in the

correspondence emanating from the department, the trustees were described

as hereditary trustees.

8.The learned counsel for the respondent took me through each of the

exhibits and drew my attention to the aforesaid description found in the

various official communications. Of-course, not much can turn on the

terms of Ex.A14 Will dated 30.03.1961. The said registered Will was

executed by Thiru.Krishnaswamy Reddiar/the father of

P.B.K.Rajachidambara Reddiar. In the said Will, Krishnaswamy Reddiar

had appointed Rajachidambara Reddiar as the next trustee.

9.As rightly pointed out by the learned Government Advocate

appearing for the appellants, the Apex Court in D.Srinivasan vs.

Commissioner (Civil Appeal No.4199 of 1989) had held that the trustee

appointed by the existing board subsequent to the commencement of the

Act cannot be called as hereditary trustee. Therefore, I have to disregard

the appointments made vide Ex.A14-Will as well as Ex.A15-Will. Even

though these two documents stand disregarded, the evidence on record

categorically points to the fact that the forefathers of the plaintiff have been

functioning as trustees for these two temples atleast from the year 1930 https://www.mhc.tn.gov.in/judis/

A.S.(MD)No.41 of 2005

onwards. Before Babu Raja, his father Chandrasekaran was a trustee.

Before Chandrasekaran, Thiru.P.B.K.Rajachidambara Reddiar was the

trustee. For a short while, the father-in-law of Rajachidambara Reddiar

Thiru.Muthu Reddiyar was the trustee. Before that, Thiru.Krishnaswamy

Reddiar was the trustee.

10.The plaintiff would also state that Babu Reddiar was the trustee

before Krishnaswamy Reddiar. However, there is no proof that Babu

Reddiar was ever in charge of the affairs. But for atleast four generations,

the said two temples have been managed by the plaintiff's family. Section

6(11) of the Act defines “Hereditary trustee” as follows:-

“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 the founder, so long as such scheme of succession is in force”

Though there is nothing on record to show that the said two temples were

founded by the forefathers of the plaintiff, the learned counsel for the

plaintiff would contend that in view of the regulation of succession by

usage, the trusteeship must be considered as hereditary in nature.

11.In the decision reported in (1979) 2 MLJ 23 (Ranganatha Pillai

vs. The Commissioner for Hindu Religious and Charitable Endowments, https://www.mhc.tn.gov.in/judis/

A.S.(MD)No.41 of 2005

Administration Department), the expression “regulated by usage” has

been interpreted. It was held that having regard to the comprehensive

definition, it is enough if the usage is established for long number of years

evidencing exercise of hereditary trusteeship of a particular temple or

temples by members of a family. When in respect of a temple for the past

three generations the members of the family of a person had managed the

affairs of the temple, it must be held that the trusteeship was hereditary in

the family of that person. Such a view was taken by the Division Bench of

the Madras High Court in an unreported decision in O.S.A No.79 of 1951