Madras High Court
R.V.S.Veeramani @ V.Mani vs The Additional Chief Secretary on 4 September, 2023
2023/MHC/4286
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.A.(MD) No.368 of 2022
and
C.M.P.(MD)No.3742 of 2022
and
W.P.(MD)No.12921 of 2022
and
W.M.P.(MD)No.9175 of 2022
W.A.(MD)No.368 of 2022
R.V.S.Veeramani @ V.Mani ... Appellant / Writ Petitioner
-vs-
1.The Additional Chief Secretary,
Tourism, Culture and Religious
Endowments (RE3-1) Department,
Secretariate, Chennai-600 009.
2.The Commissioner,
H.R and C.E (Admn.) Department,
Chennai-600 034.
3.The Joint Commissioner,
H.R. and C.E. (Admn.) Department,
Tiruchirappalli.
4.R.Varadarajan ... Respondents/Respondents
_______________
Page 1 of 31
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
PRAYER: Writ Appeal has been filed under Clause 15 of Letters Patent to set
aside the order, dated 08.04.2022 made in W.P.(MD)No.4042 of 2020 on the
file of this Court.
For Appellant : Mr.S. Parthasarathy
Senior Advocate, and
K.Govindarajan
for Mr.B.Ponnupandi
For R1 to R3 : Mr.S.P.Maharajan
Special Government Pleader
W.P.(MD)No.12921 of 2022
R.V.S.Veeramani @ V.Mani ... Petitioner
-vs-
1.The Additional Chief Secretary,
Tourism, Culture and Religious
Endowments (RE3-1) Department,
Secretariate, Chennai-600 009.
2.The Commissioner,
H.R and C.E (Admn.) Department,
Chennai-600 034.
3.The Joint Commissioner,
H.R. and C.E. (Admn.) Department,
Tiruchirappalli.
4.R.Varadarajan ... Respondents
_______________
Page 2 of 31
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
PRAYER: Writ Petition has been filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorari, to call for the records relating to the
proceedings of the third respondent made in Na.Ka.No.4214/2020/A4, dated
07.06.2022 and quash the same.
For Petitioner : Mr.K.Govindarajan
for Mr.B.Ponnupandi
For R1 to R3 : Mr.S.P.Maharajan
Special Government Pleader
JUDGMENT
[Judgment of the Court was made by D.BHARATHA CHAKRAVARTHY, J.]
A. The Writ Appeal & The Writ Petition:
1. This Writ Appeal is directed against the order of the learned Single
Judge dated 08.04.2022 made in W.P.(MD)No.4042 of 2020 in and by which
the learned Single Judge had dismissed the writ petition filed by the appellant.
1.2 In the writ petition, the appellant had challenged the order of the
first respondent namely the Additional Chief Secretary, Tourism, Cultures and
Religious Endowments (RE3-1) Department, Secretariat, Chennai, dated
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
19.02.2020 in G.O(Permanent)No.56 and the consequential order of the third
respondent, namely, the Joint Commissioner in Na.Ka.No.8733/18/Aa1,
dated 24.02.2020.
1.3. By the said orders, in a revision preferred by the appellant
against the order of the second respondent namely, the Commissioner of HR &
CE (Admn.) Department, Chennai-34 in partly allowing the appeal and
remanding the matter back to the third respondent, the first respondent
himself had granted the relief in favour of the fourth respondent by directing
he also be appointed as an Additional Hereditary Trustee. Thereafter, a
consequential order dated 07.06.2022 was also passed by the Joint
Commissioner of HR & CE (Admn.) Department regarding the details of the
joint trusteeship which is impugned in Na.Ka.No.4214/2020/A4. Against
which, the appellant had filed W.P.(MD)No.12921 of 2022. The said order is
only a consequential order and it depends upon the decision of this Court in
the above writ appeal and as such the said writ petition is also tagged along
with the writ appeal and both the matters are taken up together and are
disposed of by this Common Judgment.
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
B. Facts in Brief:
2. The brief facts leading to the filing of the writ appeal are that
Arulmigu Marriamman Temple situated at Manapparai Town, Trichy District is
under the administration of Hereditary Trustee. The appellant's grandfather
one Rajagopal Naidu was declared as the Hereditary Trustee of the Temple by
the judgment of the learned Subordinate Court, Trichy in O.S.No.97 of 1963.
The said Rajagopal Naidu died in the year 1984 leaving behind two sons
namely, Veerasamy and Varadarajan . The said Varadarajan, who is the fourth
respondent herein got into Government service and therefore, he gave 'No
Objection Certificate' and consent in favour of his brother Veerasamy to be
appointed as Hereditary Trustee.
2.1 Pursuant thereto by a specific order passed under Section 63(b)
of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959
after due adjudication in O.A.No.20 of 1986, the appellant's father and the
brother of the fourth respondent Varadarajan, namely, Veerasamy was held to
be the Hereditary Trustee in view of the earlier decision in the suit and it was
held that the appointment could be made under Section 54 of the Act. As a
matter of fact, it is specifically held that the devolution of trusteeship passed
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
on to the legal heirs in an unbroken line of succession and as such the said
Veerasamy is entitled to the declaration as sought for. Pursuant to which, the
said Veerasamy was functioning as the sole Hereditary Trustee.
2.2. Whileso after his retirement from government service, the fourth
respondent filed a revision petition before the third respondent in R.C.No.
10421 of 2001 to declare him as the Hereditary Trustee of the temple. The said
revision was dismissed by order dated 07.07.2004. Against the said order, a
further revision was preferred on the file of the second respondent, namely,
the Commissioner, in R.P.No.205 of 2004. The said R.P.No.205 of 2004 was
dismissed by order dated 14.09.2005. The relevant portion of the said order
reads as hereunder:
“But the right to hold office can only be in accordance with
the law of succession. Unless it is joint right. I, therefore, see no
illegality in the impugned order passed by the Joint Commissioner,
HR & CE Admn. Department, Trichy and it is hereby confirmed. If
at all the petitioner intends to make a rival claim to hold office as
Joint Hereditary Trustee along with the respondent herein, he may
file a regular suit before the competent Civil Court having
jurisdiction, if so advised. In fine, the Revision Petition be and is
hereby dismissed.”
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
2.3 Challenging the same, the fourth respondent filed writ petition
in W.P.(MD) No.39570 of 2005. Whileso on 27.11.2010, the father of the
appellant Veerasamy, the sole Hereditary Trustee died. On 08.12.2010, the
fourth respondent once again filed a fresh petition before the third respondent
to appoint him as the Hereditary trustee. The appellant also filed an
application to appoint him as the Hereditary Trustee. On 24.04.2011, two
separate orders were passed by the third respondent in the applications. The
application filed by the appellant was allowed appointing him as the
Hereditary Trustee as he was next in line of succession of the deceased
Hereditary Trustee Veerasamy. By another order, the claim of the fourth
respondent was rejected on the ground that any rival claim as to the
Hereditary Trusteeship can be made only before the competent civil Court and
it is not within the remit of the third respondent to decide such rival claim.
2.4 Immediately thereof, the fourth respondent also filed a suit in
O.S.No.362 of 2011 to declare himself as the Hereditary Trustee. At the same
time, the fourth respondent also filed two appeals in A.P.Nos.7 of 2013 and 8
of 2013 against the orders of the third respondent. By two distinct orders, the
second respondent dismissed A.P.No.7 of 2013 filed against the appointment
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
of the appellant as Hereditary Trustee with a direction to the fourth
respondent to approach the civil Court.
2.5 As far as the order passed rejecting the claim of the fourth
respondent, A.P.No.8 of 2013 was partly allowed by remanding the matter
back to the Joint Commissioner, the third respondent to consider the case
afresh. It is useful to extract Paragraph No.3 of the said order, which reads as
hereunder:
“3. I heard Thiru E.Ganesh, Counsel for the petitioner and
perused the relevant records. The appellant's elder brother
R.Veerasamy was recognized as Hereditary Trustee of the temples
with the consent of the appellant and other legal heirs of Rajagopal
Naidu. However, the right of the petitioner has not been extinguished
in view of the consent given him in favour of his elder brother but the
succession to the office shall be decided in accordance with Hindu
Succession Act. The Joint Commissioner without consider the claim
of the appellant as per the Hindu Succession Act rejected the claim
of the appellant.”
2.6 Thereafter, once again the third respondent decided the issue
and rejected the case of the fourth respondent by an order dated 29.07.2013
and the relevant portion of the order reads as under:
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
“Mdhy; mt;thW nra;ag;gltpy;iy. ,e;epiyapy;
jpU.Mh;.tujuh[id ,j;jpUf;NfhapYf;F guk;giu mwq;fhtyh;
thhpRjhuuhf gjpT nra;tjhy; ,j;jpUf;NfhapYf;F gyd; VJkpy;iy.
eph;thfj;jpy; rpf;fy;fs; Vw;gl tha;g;Gfs; cs;sd. XU jpUf;Nfhapypd;
mwq;fhtyh; chpik guk;giu jd;ik cilaJ vd;gij kl;LNk ,iz
Mizauhy; KbT nra;a ,aYk; guk;giu mwq;fhtyh; thhpRhpik
Fwpj;J gpur;rid Vw;gbd; mjid rptpy; ePjpkd;wj;jpd; %yNk
jPh;j;Jf;nfhs;s ,aYk;. vdNt> Mizah; R.P.204/2004 ehs;.09.09.05
kw;Wk; Mizah; A.P.8/2013 gp2 ehs; 28.02.2013 Mfpa Fwpg;Gfspy;
cj;jputpl;lgb jpU.Mh;.tujuh[d; jdJ Nfhhpf;if njhlh;ghf
rk;ke;jg;gl;l rptpy; ePjpkd;wj;jp;y; tof;F jhf;fy; nra;J ghpfhuk;
Njbf;nfhs;s mwpTWj;jg;gl;L ,k;kD KbT nra;ag;gLfpwJ.”
2.7 Once again, the fourth respondent filed an appeal to the
Commissioner. In the appeal, once again, the second respondent partly
allowed the appeal and remanded the matter back. While so remanding, the
second respondent also directed the fourth respondent to withdraw the writ
petition and the suit which was filed and pending. It is useful to extract the
order passed by the second respondent which reads as hereunder:
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
“ ....In view of the above order, this forum while
disposing the A.P.8 of 2013 filed by the petitioner,
directed the Joint Commissioner to decide the petitioner's
claim in accordance with Hindu Succession Act. But the
Joint Commissioner failed to do so.
Therefore, the impugned order suffers from
infirmity as stated above and liable to be set aside.
Accordingly, the order dated 29.07.2013 of the Joint
Commissioner, Trichy is hereby set aside and the matter
is remitted back to the Joint Commissioner, Trichy for
fresh disposal. The Joint Commissioner, Trichy is
directed to decide the claim of the appellant in
accordance with the Hindu Succession Act, if the
appeallant files an undertaking affidavit to withdraw the
pending writ petition and O.S. filed by him. With the
above direction the Appeal Petition is disposed of.”
2.8 Aggrieved by the fact that inspite of the considered decisions of
the Joint Commissioner, the second respondent remanded the matter
repeatedly, the appellant filed a revision petition before the first respondent
Government stating that such a remand was unwarranted. While considering
the revision against the remand order, by G.O.No.56, dated 19.02.2020, the
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
first respondent set aside the order of the second respondent dated
18.08.2014, but however directed that the fourth respondent also be
appointed as Hereditary Trustee. After discussing the facts and the previous
proceedings and the submissions made on either side, the reasons are
mentioned in paragraph Nos.15 and 16 which are extracted as hereunder:
“15.rPuha;T kDtpy; njhptpf;fg;gl;l fhuzq;fs;> Neub tprhuizapd;
NghJ rPuha;T kDjhuh; jpU.Mh;.tP.v];.tPukzp vd;fpw tP.kzp jug;gpy;
vLj;Jiuf;fg;gl;l thjk;> vjph;kDjhuh; jpU.,uh.tujuh[d; jug;gpy;
vLj;Jiuf;fg;gl;l thjk; kw;Wk; rkh;g;gpf;fg;gl;l vOj;JG+h;t ghjk;
Mfpatw;iw njhlh;Gila %y Mtzq;fspd; mbg;gilapy; ,e;Neh;T Ma;T
nra;ag;gl;lJ. jpUr;rp rhh;G ePjpkd;wj;jpy; jhf;fy; nra;ag;gl;l O.S.No.97 of
1963 tof;fpy; ,j;jpUf;NfhapYf;F jpU.uh[Nfhghy; ehAL vd;gth; guk;giu
mwq;fhtyh; vd tpsk;Gif nra;ag;gl;lhh;. jpU.uh[Nfhghy; ehAL mth;fs;
kiwtpw;Fgpd; ,tuJ thhpRjhuh;fspd; ,irTld; mtuJ %j;j kfd;
jpU.,uh.tPuhrhkp ehAL vd;gth; guk;giu mwq;fhtyuhf epakpf;fg;gl;Ls;shh;.
jpU.,uh.tujuh[d; mth;fs; muRg; gzpapypUe;j fhuzj;jhy; mtuJ %j;j
rNfhjuh; jpU.,uh.tPuhrhkp ehAL mth;fis guk;gij mwq;fhtyuhf
epakpg;gjw;F ,irT njhptpj;Js;shh;. muRg; gzpapypUe;J Xa;T ngw;w gpd;
jpU.uh[Nfhghy; ehALtpd; thhpRjhuh; vd;fpw mbg;gilapy; jd;idAk;
guk;giu mwq;fhtyuhf epakdk; nra;a Ntz;Lk; vdf; NfhhpAs;shh;.
16. Nkw;fz;l #o;epiyapy;> jpU.Mh;.tP.v];.tPukzp vd;fpw tPukzp
vd;gth; ,e;J rka mwepiyf;nfhilfs; rl;lk; 1959> rl;lg;gphpT 114-d; fPo;
murplk; jhf;fy; nra;ag;gl;l rPuha;T kDtpid Nkw;fhZk; thJiu>
vjph;thJiu kw;Wk; Mtzq;fspd; mbg;gilapy; muR RakhfTk;>
ftdKlDk; ghprPyid nra;jJ. ghprPyidf;Fg; gpd;dh;> jpUr;rp khtl;lk;>
kzg;ghiw efh; kw;Wk; tl;lk;> mUs;kpF khhpak;kd; jpUf;NfhapYf;F
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
guk;giu mwq;fhtyh; thhpRhpik njhlh;ghf ,e;J rka mwepiyf;nfhilfs;
rl;lk; 1959> rl;lg;gphpT 54(4)-d; fPo; ,e;J rka mwepiyaj;Jiw Mizah;
Mh;.gp.vz;.31/2013 ehs; 18.08.2014-y; gpwg;gpf;fg;gl;l cj;juit uj;J
nra;J> ,j;jpUf;NfhapYf;F Vw;fdNt guk;giu mwq;fhtyuhf cs;s
jpU.Mh;.tP.v];.tPukzp vd;fpw tPukzp vd;gtUld; ,ize;J nray;gl
jpU.,uh.tujuh[d; vd;gtiuAk; guk;giu mwq;fhtyuhf epakdk; nra;J
muR MizapLfpwJ.”
Consequent to the said direction, another order was passed by the third
respondent dated 24.02.2020 by implementing the said order.
C. The Writ Petition and Findings:
3. Challenging the above said G.O.Ms.No.56 dated 19.02.2020 and
the order dated 24.02.2020, the writ petition in W.P(MD)No.4042 of 2020 was
filed. The writ petition was resisted by the official respondents as well as the
fourth respondent.
3.1 The learned Single Judge by the order dated 05.04.2022 held
that the third respondent/Joint Commissioner had no power to decide the
inter se dispute as to who can succeed to the office of the Hereditary Trustee
and that the same should have been relegated only to the civil Court. The
learned Single Judge held that the order of the Government holding that the
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
fourth respondent can be made as co-hereditary trustee cannot be said to be
beyond the scope of the appeal petition filed by the appellant. The learned
Single Judge held that both the appellant as well as the fourth respondent
have a fair chance to succeed to the office of the Hereditary Trustee and the
issue is required to be resolved by filing a civil suit. By holding so, the learned
Single Judge dismissed the writ petition upholding the order of the first
respondent.
3.2 The findings of the learned Single Judge in Paragraph Nos.47 to
50 are extracted hereunder for ready reference:
“47. If the office of the Hereditary Trustee is vested with only
one person from the family, the next in line of succession was entitled
to succeed and not the person who had chance to succeed earlier.
The order of the respondent holding that the fourth respondent can be
made as Co-Herediary cannot be said to be beyond the scope of the
appeal / petition filed by the petitioner challenging the order of the
second respondent Commissioner.
48. Thus, a reading of the above Judgment makes it clear that
the third respondent Joint Commissioner has no power to decide the
inter se dispute as to who is the succeed to the office of the
Hereditary Trustee. If there are rival claims to the office of the
Hereditary Trustee, it is for the authorities either to ask the parties to
move Civil Court to have their rights decided and declared or appoint
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
a fit person or allow both the parties to function as Co-Hereditary
Trustees. In the present case, there is no allegation of
mismanagement. Therefore, there is no necessity to appoint a fit
person.
49. Power under Section 114 of the Tamil Nadu Hindu
Religious and Charitable Endowments Act, 1959 is wide. It cannot be
said that the said power was exercised incorrectly by the first
respondent Additional Chief Secretary.
50. Both the petitioner and the fourth respondent have a fair
chance to succeed to the office of the Hereditary Trustee. On the
demise of the petitioner's father and the fourth respondent's elder
brother, the dispute between the petitioner and the fourth respondent
is required to be resolved in the manner in which the issue was
resolved on an earlier occasion, i.e. by filing a Civil Suit. Therefore, I
do not find any reasons to interfere with the impugned order of the
first respondent.”
3.3. Aggrieved by the same, the present appeal is filed.
D. The Submissions:
4. Heard Mr.S. Parthasarathy, the learned Senior Counsel appearing
for the appellant as well as the petitioner in both the cases and
Mr.S.P.Maharajan, the learned Special Government Pleader appearing for the
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
respondents 1 to 3 in both the cases and Mr.G.Prabhu Rajadurai, the learned
counsel appearing for the fourth respondent in both the cases.
4.1 Mr.S. Parthasarathy, the learned Senior Counsel, taking this
Court through the events as above, firstly would submit that the right of the
petitioner to became hereditary trustee stood crystallized by the order dated
09.09.2005. He would submit that even though the right of the fourth
respondent cannot be treated as extinguished, vis-a-vis, the temple when he
claimed co-hereditary trusteeship, the same stood rejected and the hereditary
trusteeship of Veerasamy stood confirmed. Thus when Veerasamy died, as per
the scheme framed, the person who is next in the line of succession alone is
entitled to be appointed as Hereditary trustee and accordingly, the appellant
was appointed as Hereditary Trustee. The challenge to the appellant's
appointment as Hereditary Trustee was also upheld and the matter has
attained finality. However, when the said matter has attained finality, and in
respect of the claim of the fourth respondent to appoint himself as the
Hereditary Trustee when an order has been passed in A.P.No.8 of 2013
remanding the matter back to the Joint Commissioner and the Joint
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
Commissioner has categorically held that any counter claim or contentious
claim in respect of the Hereditary Trusteeship can be made only by filing a
civil suit, by the second remand order dated 18.08.2014, the Commissioner
failed to consider his own earlier order dated 09.09.2005, wherein he himself
has directed the said Varadarajan to approach the civil Court and that when
the fourth respondent/Varadarajan has already approached the Civil Court,
he has directed him to withdraw the suit as well as the writ petition and once
again remanded the matter. Even if the appellant had again gone back to the
third respondent, no order appointing the fourth respondent could have been
passed. In that view of the matter aggrieved by the repeated remands when
the revision is preferred, beyond the scope of the revision, without adducing
any reason whatsoever, the first respondent simply directed that the fourth
respondent be appointed as a Co-Hereditary Trustee. Absolutely, no reason
whatsoever is given explaining any suggestion or rule by which, the claim of
the fourth respondent is allowed. Therefore, the learned Senior Counsel would
pray that the learned Single Judge ought to have allowed the writ petition.
4.2 Mr.S.P.Maharajan, the learned Special Government Pleader
appearing for the HR & CE would submit that the learned Single Judge
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
himself has held that the first respondent has exercised his power under
Section 114 of the Act which is wide enough to pass such orders.
4.3 Mr.Prabhu Rajadurai, the learned Senior Counsel appearing for
the fourth respondent would submit that even as per the order dated
09.09.2005 it has been categorically held that the right of the fourth
respondent has not extinguished by the consent given by him. The concept of
appointing Hereditary Trustee by next in line of succession has a special
meaning and it does not mean that the son of the deceased Veerasamy alone
to be appointed. In that view of the matter when two persons claimed
Hereditary Trusteeship as in line of succession after the death of the father of
the appellant and brother of the fourth respondent in the year 2010, the third
respondent ought to have relegated the parties to the civil Court and ought not
to have appointed the appellant as the Hereditary Trustee. In that view of the
matter, the order passed by the Commissioner of HR & CE remanding the
matter back cannot be faulted with.
4.4 Mr. Prabhu Rajadurai, the learned counsel would submit that the
suit and the writ petition was withdrawn only on account of the order of
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
remand passed by the second respondent. Therefore, in the facts and
circumstances of the case, when the fourth respondent who does not have any
other legal heir is only praying that he also be allowed to be a Co-Trustee till
his lifetime, no exception whatsoever can be taken in respect of the order
passed by the first respondent Government in permitting him to be a Co-
Trustee. As a matter of fact, the fourth respondent has offered that he will be a
nominal Co-Trustee and will not even interfere the day to day administration
is also rejected by the appellant. In that view of the matter, he would submit
that when the learned Single Judge has refused to interfere with the order
passed by the first respondent, this Court need not interfere and the appeal
be dismissed.
4.5 The learned counsel would rely upon an order of the learned
Single Judge in W.P(MD)No.7997 of 2018, dated 22.02.2019 for the
proposition that when there is a genuine rival claim, the authority should
divorce himself of the jurisdiction and relegate the parties to civil Court. The
learned counsel also relied upon the Judgment of the Hon'ble Supreme Court
in V.S.Thiagaraja Mudaliar Vs. Bava C. Chokkappa Mudaliar andothers1
for the proposition that the parties have to be relegated only to the civil Court.
1 (1974) 2 SCC 58
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
He also relied upon the Judgment of this Court in Chettimai C.Nanjappa
Chettiar (deceased by L.R.) Vs. S.N.Kuppuswami Chettiar2, whereunder a
learned Single of this Court has held that if a person barters his right to be
appointed to the office of the Hereditary Trustee for no value for the time
being, it would be of no consequence and he will be entitled to insist and claim
his right as a successor, ignoring such release or relinquishment.
E. The Discussion & Findings:
5. We have considered the rival submissions made on either side
and perused the material records of the case.
5.1 The question that arises for consideration in the appeal is that
whether or not the order of the Government, the first respondent herein in
appointing the fourth respondent as Co-Hereditary Trustee in the revision
petition filed by the appellant against the order of remand is sustainable?
5.2 Firstly, the right of the appellant and the fourth respondent's
family members to be appointed as Hereditary Trustees to the temple got
crystallized in O.S.No.97 of 1963. Pursuant to the decree of the civil Court, the
2 1985 (2) MLJ 154
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
grandfather of the appellant namely Rajagopal Naidu was appointed as the
Hereditary Trustee. When he died in the year 1984, in an application filed
under Section 63(b) of the Tamil Nadu Hindu Religious and Charitable
Endowments Act 1959 by order dated 18.07.1986 in O.A.No.20 of 1986, the
father of the appellant namely Veerasamy was declared as the Hereditary
Trustee. When the fourth respondent reclaimed the Hereditary Trusteeship
from the said Veerasamy, after a period of 17 years after he gave the consent
on account of his choosing the Government service over the trusteeship in the
temple, it is categorically held that the office of the trusteeship was not jointly
held. It was further held that when the temple is managed by the sole
hereditary trusteeship and when the fourth respondent brother has been so
declared, the fourth respondent who is making a rival claim as against his
own consent after a lapse of 17 years can seek his remedy only through a
competent civil Court and not by any other process. It must be seen that the
fourth respondent did not file any civil suit on the other hand chose to
challenge the said order by way of writ petition it was also ultimately
withdrawn by him and thus, the said order had become final.
5.3 Further, after the death of the father of the appellant, the fourth
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
respondent once again staked his claim by filing proceedings before the third
respondent. The third respondent independently dealt with the claim of the
appellant and recognized him as Hereditary Trustee since after the death of
the said Veerasamy, the person next in line of succession namely, the
appellant was entitled to succeed as the other legal heirs of the said
Veerasamy, has given consent in his favour and as such recognized and
declared him to be the official trustee. In that view of the matter, when it is
only the appellant who is making a rival claim was relegated to approach the
civil Court.
5.4 As a matter of fact, the learned Senior Counsel appearing for the
fourth respondent relied upon the order of the learned Single Judge in P.Durai
Raj case [W.P.(MD)No.7997 of 2018] and even the relevant portion of the order
of the learned Single Judge in Paragraph No.8 reads as follows:
“8.....Mere raising of rival claim by itself, will not denude
the authority of its jurisdiction to decide the matter. It is quite
possible in some cases a rank stranger or inter-loper may set up
a rival claim that he is also a hereditary trustee. Hence, in the
very nature of things the authority will have to see if there is a
bona fide dispute with regard to the claim over hereditary
trusteeship that involves taking of evidence, documents will have
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
to be marked and only thereafter, the authority can come to a
decision as to whether there is any rival claim. Once the
authority comes to the conclusion that there is a rival claim, he
will have to divorce himself of the jurisdiction to decide the matter
further and relegate the parties to go before the Civil Court.”
5.5 Thus it can be seen that when already the authorities have
decided the issue and directed the fourth respondent herein to approach the
civil Court, once again without any bona fide whatsoever the issue has been
raised. The retirement of the fourth respondent from government service will
only entitled him to pension and the release from the rigours of Rule 11 of the
Fundmental Rules requiring his full time at the disposal of the government,
but will not in any manner automatically set at naught the findings of the
statutory authorities and bring all issues at large so as to make it a bonafide
issue. In that view of the matter, just because the fourth respondent has
raised the issue of hereditary trusteeship once again upon the death of his
brother, the appellant cannot be relegated to the civil Court, when otherwise is
the person next in line of succession to be recognized as a Hereditary Trustee
after his father Veerasamy.
5.6 It is further to be noted that it is the case of the fourth
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
respondent that 'next in line of sucession' is an issue to be determined not
simply by legal heirship and that the claim of the fourth respondent and the
appellant amounts to rival claim and that it has to be decided only by the Civil
Court. He had also filed O.S.No.362 of 2011 before the civil Court. At the
same time, he kept on filing appeals to the authorities while the suit was
pending. Therefore, the fourth respondent cannot be permitted to approbate
and reprobate when he contends that the matter has to be decided by the Civil
Court. Ultimately he also withdrew the civil suit though on the direction of the
remand order. If the matter is within the jurisdiction of the third respondent
namely Joint Commissioner then the decision of the Joint Commissioner in
appointing the appellant alone as the Hereditary Trustee and rejecting the
case of the fourth respondent is to be held as correct. If it is the contention of
the fourth respondent that the third respondent has no jurisdiction at all and
that the matter has to be decided by the civil Court then his action of
pursuing the departmental appeals and withdrawing the civil suit, stares on
his face and therefore, he cannot be permitted to raise such a contention. In
that view of the matter, when twice the appointment of the appellant as
Hereditary Trustee has been upheld and repeatedly it became final, the order
of remand passed by the Commissioner is unsustainable.
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
5.7 When the commissioner himself has categorically held that it is
a case of sole hereditary trusteeship and any claim would amount to rival
claim and that can be made only by way of filing a civil suit by his own order
dated 09.09.2005, the repeated remands made by the Commissioner
especially by the order dated 18.08.2014 was incorrect in law.
5.8 Accordingly, when the appellant filed an appeal questioning the
order of remand, without upholding or rejecting the claim of the appellant,
even while setting aside the order of the remand, the first respondent, out of
the blue, had simply said that the fourth respondent can also be appointed as
a Co-Hereditary Trustee. The first respondent had not given any reason
whatsoever and the only reasoning contained in paragraph Nos.15 and 16 are
extracted above. The first respondent totally ignored the checkered history of
the Hereditary Trusteeship being determined in O.S.No.97 of 1963 upto the
filing of the suit by the fourth respondent herein.
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
5.9 Secondly, the question whether there can be Co-Trusteeship or
sole Hereditary Trustee was certainly beyond the purview of the revision which
was before the Government and has been inter-parties decided as sole
trusteeship.
5.10 Thirdly, when in respect of such rival claims when the law has
been very clearly laid down that when the Board or Commissioner had no
jurisdiction, there was no question of resolving the said issue by the first
respondent Government in the revision arising out of such decision. It is
useful to extract Paragraph No.19 of the Judgment of the Hon'ble Supreme
Court of India in V.S.Thiagaraja Mudaliar (cited supra) :
“ Thus, when the matter has to be decided by the
ordinary civil Court of the land, there is no question of
rendering a decision in a revision arising out of the
order of the Commissioner. “
5.11 In that view of the matter, the first respondent had no
jurisdiction whatsoever and went beyond the jurisdiction under Section 114 of
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
the Tamil Nadu Hindu Religious and Charitable Endowments Act,1959 in
appointing the fourth respondent as co-heriditary trustee.
5.12 In that view of the matter, we see that while the learned Single
Judge acknowledged that the matter be decided by the civil Court, at the same
time, the learned Single Judge held that passing such an order was not
beyond the powers of the first respondent Government which in our opinion
are diametrically opposite to each other and having rendered a categorical
finding that the issue has to be gone into only by the civil Court, the learned
Single Judge ought not to have dismissed the writ petition by upholding the
order of the first respondent and accordingly we have no other option than to
interfere with the Judgment of the learned Single Judge.
5.13 The Hon'ble Supreme Court of India, in Union of India &
Others -Vs- N.Murugesan, (2022 2 SCC 25) explained the concept of
'approbate and reprobate' more specifically in paragraphs 26 and 27. The
relevant portion of paragraph 26 reads as under :
“ 26.These phrases are borrowed from the Scots law. They
would only mean that no party can be allowed to accept and
reject the same thing, and thus one cannot blow hot and cold.
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
The principle behind the doctrine of election is inbuilt in the
concept of approbate and reprobate. Once again, it is a
principle of equity coming under the contours of common law. “
5.14. The conduct of the fourth respondent has along been the same.
When the office of the hereditary trusteeship fell vacant, he gave consent that
his brother could be appointed. After 17 years, he staked claim again to the
office. By the Order dated 09/09/2005, it is held that the temple is managed
by sole hereditary trustee. It was recorded that it was not his claim that that
the trusteeship was jointly held. In that view of the matter, when the eldest
male member was appointed and when he as not suffered any disqualification,
the claim of the petitioner was rejected. It was categorically held that it claim
at best would only be rival claim to be made only to the Civil Court. However,
the fourth respondent did not file any civil suit. On the other hand, leaving his
claim of joint trusteeship, once again staked claim as next in line of sucession,
when the vacancy arose on account of the death of Veerasamy. When the case
was rejected, he filed a civil suit claim on the pretext that it is his rival claim.
At the same breadth he kept on filing departmental appeals on the grounds
that his consent will not amount to extinguishment of right and that his claim
should be considered on the principles of line of sucession. Once again when
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
the second remand is made, he withdrew the writ petition where he wanted he
challenged the decision that there can only be sole trusteeship and he also
withdrew the suit where his contention was that of a rival claimant. Even if
the Joint Commissioner had to pass orders on the second remand, he was
bound by the order dated 09/09/2005 of the Commissioner and could not
have held that it is a joint heriditary trusteeship. Having obtained an order of
remand, it was again contended before the first respondent government that it
is a joint trusteeship, based on which the impugned order is passed. Thus, it
may be seen that the fourth respondent was continously approbating and
reprobating. As such, we have no hesitation in rejecting his claim.
F. The Result:
6. In view thereof:
(i) the Writ Appeal stands allowed;
(ii) The order of the learned Single Judge dated 08.04.2022 in
W.P(MD)No.4042 of 2020 is set aside;
(iii) The Writ Petition in W.P.(MD)No.4042 of 2020 is allowed
quashing the order of the first respondent dated 19.02.2020
appointing the fourth respondent as Joint Hereditary
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
Trustee;
(iv) In view of the Writ Appeal being allowed, the consequential
order which is impugned in W.P.(MD).12921 of 2022 cannot
stand and accordingly the said writ petition also stands
allowed;
(v) No costs. Consequently, connected miscellaneous petitions
are closed.
[S.S.S.R., J.] [D.B.C., J.]
04.09.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sji
To:
1.The Additional Chief Secretary,
Tourism, Culture and Religious
Endowments (RE3-1) Department,
Secretariate, Chennai-600 009.
2.The Commissioner,
H.R and C.E (Admn.) Department,
Chennai-600 034.
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
3.The Joint Commissioner,
H.R. and C.E. (Admn.) Department,
Tiruchirappalli.
_______________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.368 of 2022
& W.P(MD)No.12921 of 2022
S.S.SUNDAR, J.
and
D.BHARATHA CHAKRAVARTHY, J.
sji
W.A.(MD) No.368 of 2022
and
C.M.P.(MD)No.3742 of 2022
and
W.P.(MD)No.12921 of 2022
and
W.M.P.(MD)No.9175 of 2022
04.09.2023
_______________
https://www.mhc.tn.gov.in/judis
