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Case Number

S.A No. 246 of 1976

Attorney(S)

A. Rumanathan and E. Padmanabhan for Applt.
T.R Srinivasan and K. Ramamurthy for Respt.

Judges

Sethuraman, J.

Acts

S. 63 of the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959.
S. 63(4) of the Madras Hindu Religious Endowments Act
provisions of the Tamil Nadu Act 22 of 1959
S. 64 of the Tamilnadu Act 22 of 1959

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Smart Summary

Structured Summary of the Legal Opinion

Factual and Procedural Background

The suit (O.S. No. 445 of 1973, District Munsif, Paramakudi) was filed by three plaintiffs seeking a permanent injunction restraining the defendant (the appellant in the second appeal) from interfering with the plaintiffs' rights to be in joint management of the "Vazhivitta Ayyanarsami Koil" as joint hereditary trustees. The plaintiffs alleged the temple was a private temple founded in the 17th century by their ancestor, with a trust established for its management and properties; they claimed hereditary succession (primogeniture) gave them joint hereditary trustee status and that previous court proceedings had recognised their right to manage the temple jointly. The defendant, also a descendant of the founder, denied that the plaintiffs had ever managed the temple as joint trustees and asserted that he (as successor to his adoptive father) had been recognised by the Hindu Religious and Charitable Endowment Department as the hereditary (sole) trustee, submitting accounts and paying departmental dues. The defendant argued the temple was a public temple and that the civil courts lacked jurisdiction because the Deputy Commissioner has jurisdiction under S. 63 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, to decide questions of hereditary trusteeship. The District Munsif dismissed the suit, holding the temple to be a public temple, finding the defendant in exclusive management and recognised by the Department, but also ruling the dispute did not fall within S. 63 so as to oust civil court jurisdiction. The plaintiffs appealed; the Subordinate Judge allowed the appeal, concluded on the basis of Ex. A.23 (a printed judgment in O.S. 14 of 1939) that there were four hereditary trustees and that the plaintiffs represented three branches while the defendant represented the remaining branch, and hence that the plaintiffs were entitled to joint management. The Subordinate Judge also allowed I.A. No. 317 of 1975 to amend the plaint to seek a declaration of joint trusteeship and possession, finding the amendment did not change the fundamental character of the suit. The defendant appealed to the present court in a second appeal.

Legal Issues Presented

Whether the present suit is barred by S. 63 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (i.e., whether the dispute is one "whether a trustee holds or held office as a hereditary trustee") and thus ousted from civil court jurisdiction by S. 108 of the Act.
Whether the court below was correct in holding, on the basis of Ex. A.23 (the printed judgment in O.S. 14 of 1939), that there were four hereditary trustees and that the plaintiffs were entitled to joint management along with the defendant.
Whether I.A. No. 317 of 1975 (seeking amendment of the plaint to add reliefs for declaration of joint trusteeship and possession) ought to have been allowed by the lower appellate court, or whether allowing it altered the fundamental character of the suit and required remand.
What remedial steps should be taken to regulate management (including whether framing of a scheme under S. 64 by the Deputy Commissioner is required).

Arguments of the Parties

Appellant (defendant)'s Arguments

The plaintiffs had never been in management of the temple as joint trustees; the defendant (through his adoptive father and then himself) had been in exclusive management.
The defendant had been recognised by the Hindu Religious and Charitable Endowment Department as the hereditary trustee and had been submitting accounts and paying contributions and auditor's fee to the Department.
The suit temple is a public temple; therefore, under S. 63 of the Tamil Nadu Act 22 of 1959 the Deputy Commissioner has exclusive jurisdiction to decide questions of hereditary trusteeship, and civil court jurisdiction is ousted by S. 108 of the Act.
Even if the parties were co-trustees, there could not be an injunction against a co-trustee.
The proposed amendment (I.A. 317 of 1975) would alter the fundamental character of the suit and hence should not be allowed (submitted in opposition to the amendment).

Plaintiffs' (respondents') Position

The plaintiffs claimed to be joint hereditary trustees of the temple and sought a permanent injunction restraining the defendant from interfering with their joint management.
They relied on family succession and prior court recognitions (including an earlier decree) that had recognised their right to manage the temple jointly.
They sought amendment of the plaint via I.A. No. 317 of 1975 to add a declaration that they are joint trustees and in joint possession; the Subordinate Judge allowed this amendment on the basis that it did not change the fundamental character of the suit and an issue had already been framed on whether they were co-trustees.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ex. A.23 — Printed judgment in O.S. 14 of 1939 (District Court, Ramanathapuram at Madurai; Mr. N.D. Krishna Rao)	Establishment in earlier proceedings that the suit temple was a public temple and that there shall be four hereditary trustees representing respective branches of the founder's family.	The court treated this prior judgment as establishing that the defendant could not claim sole management and that the plaintiffs had already been declared hereditary trustees; therefore the present suit was not one to determine whether a trustee holds office as a hereditary trustee under S. 63.
Thiruvengada Varadachari alias Varadachari v. Srinivasa, 1971 I-M.L.J 358 = 84 L.W. 137	Illustration of a case where the suit was barred by S. 63 because the plaintiffs sought declarations of hereditary trusteeship and related reliefs; plaintiffs' only remedy was under S. 63 before the Deputy Commissioner.	The court distinguished this precedent on its facts, noting that in the present case the plaintiffs already had rights established by earlier decree; hence the doctrine in that case did not apply to bar the present suit.
Rangayya Gounder v. Karuppa Naicker	Authority for the proposition that disputes centring on which rival claimant is entitled to management or to celebrate annual festivals do not fall within the ambit of S. 63 and therefore are not barred by S. 108.	The court relied on this principle to support the conclusion that the bar under S. 63 operates against suits to establish hereditary rights but not against suits to enforce already-established hereditary management rights; thus S. 63/S.108 did not bar the present suit.

Court's Reasoning and Analysis

The court structured its analysis principally around the question whether the suit was a dispute "whether a trustee holds or held office as a hereditary trustee" within the meaning of S. 63 of the Tamil Nadu Act 22 of 1959 and thus barred from civil court by S. 108.

Step 1: Identification of the statutory bar — The court set out S. 63(b) (power of the Deputy Commissioner to decide whether a trustee holds or held office as a hereditary trustee) and S. 108 (bar on suits in civil courts in respect of matters for which provision is made in the Act).

Step 2: Examination of prior adjudication (Ex. A.23) — The court examined Ex. A.23 (the printed judgment in O.S. 14 of 1939) which had decided that the temple was a public temple and that there would be four hereditary trustees representing respective family branches. Because that decision had not been challenged and had already declared the hereditary trustee structure (four trustees), the court found the defendant could not claim exclusive sole right to manage the trust properties.

Step 3: Characterisation of the present suit — On the facts, the present suit was confined to enforcing the plaintiffs' right (already declared in earlier proceedings) to be in joint management as hereditary trustees and to restrain the defendant from interfering. The court concluded that the present suit was not one which sought to establish (i.e., determine) whether a trustee holds or held office as a hereditary trustee within S. 63: it was an enforcement suit rather than one to establish hereditary entitlement.

Step 4: Consideration of authorities cited by parties — The court considered the decision in Thiruvengada Varadachari v. Srinivasa (where S. 63 did bar the suit) but distinguished it on the ground that in that case plaintiffs lacked an earlier decree recognising hereditary trustee rights; hence that authority did not apply. The court also relied on Rangayya Gounder v. Karuppa Naicker to support the proposition that disputes over which rival claimant is entitled to management (for example to celebrate annual festivals) fall outside S. 63, and that the statutory bar applies to suits to establish hereditary rights but not to suits enforcing previously established rights.

Step 5: Relief as to future regulation of management — While framing of a scheme for management is within the exclusive province of the Deputy Commissioner under S. 64 (and civil courts are barred by S. 108 from framing such schemes), the court directed that the parties be referred to the Deputy Commissioner for the purpose of framing a scheme to regulate joint management peacefully and properly. The court explicitly indicated the Deputy Commissioner, Madurai, should dispose of such a petition expeditiously and within three months of filing.

Step 6: Procedural contention on amendment (I.A. No. 317 of 1975) — The court considered whether the lower appellate courts erred in allowing the amendment without affording the defendant an opportunity to place his case about management. The court observed that an issue had already been framed (whether plaintiffs were co-trustees) and evidence had been led on that issue by both sides; therefore the defendant was not prejudiced and no ground for remand or interference existed. Accordingly, the appellate allowance of the amendment was upheld.

Holding and Implications

Holding: The court dismissed the second appeal and affirmed the decision of the learned Principal Subordinate Judge (i.e., the appellate court below). The court made no order as to costs. In emphatic terms: The second appeal is dismissed.

Implications:

Direct effect on the parties: The judgment of the Subordinate Judge, which concluded that (on the basis of Ex. A.23 and the evidence) there are four hereditary trustees and that the plaintiffs represent branches entitled to joint management, stands. The amendment to the plaint (I.A. No. 317 of 1975) as allowed below is sustained. The defendant's contention that the suit was barred by S. 63/S.108 is rejected on these facts.
Administrative direction: The parties were referred to the Deputy Commissioner to have a scheme framed under S. 64 of the Tamil Nadu Act 22 of 1959 to regulate joint management; the court directed that the Deputy Commissioner, Madurai, should dispose of such a petition expeditiously and within three months of filing.
Precedential effect: The opinion treated the statutory bar under S. 63/S.108 as applicable to suits that seek to establish hereditary trusteeship but not to suits that seek to enforce hereditary management rights already established by earlier decree. The court distinguished earlier case law on its facts. The opinion itself does not purport to announce any novel rule beyond its factual application of these principles; the immediate consequence is the vindication of the plaintiffs' remedial claim and the referral for scheme-framing.

Disposition: The second appeal is dismissed. There will be no order as to costs.

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Mooka Velar v. Baluchami And Others

1. The appellant is the defendant in O.S No. 445 of 1973, on the file of the District Munsif, Paramakudi. The plaintiffs filed the suit for a permanent injunction restraining the defendant from interfering with the rights of the plaintiff's to be in joint management of the suit trust as joint hereditary trustees. The plaintiffs are three in number. The suit temple is known as ‘Vazhivitta Ayyanarsami Koil’. According to the plaintiffs, it was a private temple founded by the ancestors of the plaintiffs during the 17th century and the properties were also endowed by the founder for the maintenance of the said temple. A trust was founded for the managment of the said temple and its properties. After the death of the founder, his heirs were said to have been in management by hereditary succession as per the Rule of primogeniture. The plaintiffs and the defendant are the descendants of the original founder. According to the plaintiffs, they have been the hereditary trustees of the said trust and they have been in joint management of the said temple as hereditary trustees. They claimed that in several court proceedings their right to manage the temple as joint trustees had been recognised. As the defendant claims to be in sole management of the said temple, the plaintiffs have filed the present suit for an injunction restraining the defendant from interfering with their right of joint management.

2. The defendant resisted the suit stating that the plaintiffs had never been in management of the suit temple as joint trustees, and that the defendant had been recognised by the department of the Hindu Religious and Charitable Endowment as the hereditary trustee of the suit temple. According to the defendant, his adoptive father had been in exclusive management of the suit temple as the sole trustee, and after his death, it is only the defendant who has been in sole management of the suit temple. Since he had been recognised by the department as the hereditary trustee, he claimed to have been submitting the accounts to the department, and paying contribution and auditor's fee. He pointed out to the fact that the suit temple is a public temple and as there is a dispute as to whether the plaintiffs are the hereditary trustees of the suit temple he contended that the civil court had no jurisdiction to try the suit. According to the defendant, only the Deputy Commissioner has the jurisdiction to decide the question of hereditary trustees under S. 63 of the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959. It was also pointed out that even on the footing that the plaintiffs and the defendant were the co-trustees, there could not be any injunction as against a co-trustee.

3. The learned District Munsif, who tried the suit held that the suit temple was a public temple and that the provisions of the Tamil Nadu Act 22 of 1959 applied to it. He further held that the defendant alone was in exclusive management and had also been recognised by the department of the Hindu Religious and Charitable Endowment Department. He therefore held that the plaintiffs were not entitled to the relief of injunction. The learned District Munsif also went into the question as to whether the civil court had jurisdiction to try the suit and held that the dispute in question would not come within the scope of S. 63 of the Act so as to be barred by it. He dismissed the suit.

4. The plaintiffs appealed, and the appeal came up before the learned Principal Subordinate Judge of Ramanathapuram at Madurai. In the course of the appeal, I.A 317 of 1975 was filed for the purpose of amending the plaint and incorporating the relief for declaration that they are the joint trustees and that they are in joint possession of the suit temple. This petition was opposed by the defendant on the ground that if the amendment was to be allowed, it would alter the fundamental character of the suit, and consequently it would have to be dismissed in limine

5. The learned Subordinate Judge, after going into the facts, came to the conclusion that the present suit did not come within the ambit of S. 63 of the Act, 22 of 1959, so as to oust the jurisdiction of civil court, as contemplated under S. 108 of the said Act. He further held on the basis of Ex. A.23, which was a printed copy of the judgment in O.S 14 of 1939, on the file of the District Court, Ramanathapuram at Madurai, that there were four hereditary trustees for the suit temple and that the evidence also would bear out that the plaintiffs represented the branches of three such hereditary trustees while the, defendant represented the remaining branch. Therefore, he came to the conclusion that the plaintiffs were also the hereditary trustees and that they were entitled to be in joint management of the suit temple along with the defendant. Regarding I.A No. 317 of 1975, the learned Subordinate Judge held that the proposed amendment would not in any way change the fundamental character of the suit and that it was not necessary to remit the suit to the court below in as much as an issue has been framed to the effect whether the plaintiffs are the co-trustees along with the defendant and evidence had also been let in by both sides on this issue. Therefore, he held that the proposed amendment of the plaint could be ordered as prayed for by the plaintiffs. It is this judgment of the learned Subordinate Judge that is challenged in the present second appeal.

6. The first point argued on behalf of the appellant is that the suit is barred by S. 63 of of the Tamil Nadu Act 22 of 1959. S. 63 of the Act in so far as it is relevant runs as follows:

“Subject to the rights of suit or appeal hereinafter provided, the Deputy Commissioner shall have power to inquire into and decide the following disputes and matters:—

(b) whether a trustee holds or held office as a hereditary trustee,”

S. 108 of the Act provides as follows—

“No suit or other legal proceedings in respect of the administration or management or a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any court of law, except under, and in conformity with, the provisions of this Act.”

The question to be considered is whether the present suit is one which relates to a dispute whether a trustee holds or held office as a hereditary trustee as contemplated by S. 63. Ex. A.23 is a copy of the printed judgment of the learned District Judge, Ramanathapuram, at Madurai. (Mr. N.D Krishna Rao, I.C.S as he then was). That judgment came to be rendered in a suit under S. 63(4) of the Madras Hindu Religious Endowments Act to set aside the order of the Board of Commissioners for Hindu Religious Endowments, Madras, dated 27th February 1939, framing a schme for the temple in question. In that judgment, two points came to be decided. One was that the suit temple was a public temple, and the other was that there shall be four, hereditary trustees representing the respective branches of the family of the founder. In view of this decision, which has not been challenged in any further proceedings, it is clear that the defendant cannot lay claim to a sole right to be in management of the properties of the trust. As the plaintiffs have already Been declared to be the hereditary trustees in an earlier suit, the present suit cannot be said to be one for the purpose of deciding whether the trustee holds or held office as a hereditary trustee. The scope of the present suit is only for the purpose of restraining the defendant from interfering with the right of the plaintiffs to be in joint management of the suit trust as joint hereditary trustees of the temple. To such a case, the provisions of S. 63 of the Act, in my opinion, does not apply.

7. The learned counsel for the appellants drew my attention to a decision of this court in Thiruvengada Varadachari alias Varadachari v. Srinivasa . 1971 I-M.L.J 358=84 L.W 137. In that case, the suit was for recovery of possession of the plaint mentioned temple and the immovable properties belonging to the said temple, alleging that the plaintiffs were the hereditary trustees along with defendants 3 and 4 and that the second defendant's father had been requested to look after the temple and its properties in view of the disputes between the parties. After the death of the second defendant's father, the second defendant was requested to look after the properties and as he expressed his inability to do so, the plaintiffs requested the first defendant to look after the affairs of the temple and its properties in the place of the second defendant. The first defendant accordingly assumed management and has been functioning as such agent ever since. Thereafter, a suit was filed. The suit was resisted by the defendants 1 and 2 on the ground that as a matter of fact, the father of the third plaintiff him self had been appointed by the Hindu Religious and Charitable Endowment Board as a trustee. It was further contended that the first defendant himself was appointed as a trustee by the Area Committee and subsequently he had been appointed by the Endowment Board itself, and the suit was not competent as there was no question of hereditary trusteeship. It was held on facts of that case that the suit was barred by S. 63 of the Act and that the only remedy open to the plaintiff was to invoke the jurisdiction of the Deputy Commissioner under that section for declaration of their title as hereditary trustees and also for a declaration that the suit properties are not kattalai properties, but belongs to the temple. In my opinion, the above decision has no application to the facts of the present case, because in this case the plaintiffs had already a right to be in management under an earlier decree of a civil court, and, therefore, the present suit being for the purpose of a permanent injunction restraining the defendant from interfering with the right of the plaintiffs to be in joint management of the suit trust at joint hereditary trustees, there is no question of the bar under S. 63 of the Act operating.

8. In fact, in another decision of this court in Rangayya Gounder v. Karuppa Naicker, this court has pointed out that in a case where the plaintiff and the defendant claimed that they were entitled to be trustees of the temple and claimed to have exercised their right hereditarily, the substantive dispute between the parties was as to which of thems is entitiled to be in management. It was further pointed out that as the dispute centred round as to which of the rival claimants Is entitled to celebrate the annual festival, such a dispute cannot fall within the ambit of S. 63 of the Act and as such the bar under S. 108 of the Act will not apply. In the present case also, in my opinion, the plaintiffs having already established their right to be in management as hereditary trustees under an earlier decree and the suit being for permanent injunction restraining the defendant from interfering with the plaintiffs' right to be in joint management of the suit trust as joint hereditary trustees, the suit was not barred under S. 63 read with S. 108 of the Act. The bar under S. 63 operates against a suit for establishing a hereditary right and not against a suit for enforcing it.

9. The next question that arises for consideration is as to how the rights of the parties are to be regulated for the purpose of enabling them to act as hereditary trustees in the present case. As far as the framing of a scheme is concerned this has to be done only by the Deputy Commissioner for the Hindu Religious and Charitable Endowments Department. S. 64 of the Tamilnadu Act 22 of 1959 provides for framing of a scheme by the Deputy Commissioner. S. 108 bars a civil court from doing so. The parties are, therefore, referred to the Deputy Commissioner, for the purpose of getting a scheme framed so as to enable the joint management to be done in a peaceful and proper manner. If and when the petition is filed, the Deputy Commissioner, Madurai, will, I am sure, go into this matter expeditiously and dispose of the same within three months from the date of filing of the petition.

10. The only remaining point is as to whether the lower appellate Courts acted properly in allowing I.A 317 of 1975 without giving an opportunity as alleged to defendant to place his case regarding the management of the temple. Assuming that the defendant could have any legitimate grievance of the manner in which the lower appellate court dealt with I.A No. 317 of 1975, it is clear from the issues framed in this case that the question as to whether the plaintiffs were the co-trustees along with the defendant was the subject matter of an issue and therefore, the defendant could not be said to have been prejudiced by the manner in which I.A No. 317 of 1975 had been dealt with. I do not, therefore, find any substance in this submission so as to justify the matter being remanded to the court below.

11. The second appeal is accordingly dismissed. There will be no order as to costs.

VCS

Mooka Velar v. Baluchami And Others

Structured Summary of the Legal Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (defendant)'s Arguments

Plaintiffs' (respondents') Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Mooka Velar v. Baluchami And Others

Comments