1. The plaintiff in O.S No. 13 of 1973 on the file of the Subordinate Judge of Coimbatore, originally preferred this appeal. The original appellant died pending the appeal and his legal representative being his son is on record as the appellant. The respondents in the appeal are the defendants in the suit. The suit was laid under S. 70 of the Tamil Nadu Hindu Religious and Charitable Endowments Act 22 of 1959, to set aside the order, dated 13th October, 1972 of the fourth defendant in A.P No. 40 of 1971 and to declare that the plaintiff is the hereditary trustee of the Ellai Chandi Vinayakar Temple in Coimbatore. The entire gamut of the facts need not be set out in this judgment for the simple, reason, the controversy has boiled down to a particular aspect as to whether hereditary trusteeship, which was admittedly in existence, was lost by relinquishment as reasoned by the fourth defendant in his order and which has found countenance before the Court below. This appeal is directed against the judgment and decree of the court below when it dismissed the suit of the plaintiff.
2. The temple is admittedly a public temple. Equally so, it is admitted that the trusteeship of the temple was hereditary. But what has been put against the plaintiff is that from 1902 to 1941, the management of the temple vested with a Committee of Abhimanees, pursuant to a deed executed by the father of the plaintiff and hence, the office of hereditary trustee was renounced and relinquished by the father of the plaintiff and so, it was lost to the plaintiff also. However, Mr. T.L Ram Mohan, counsel for the appellant learned herein, would state that though the father of the plaintiff constituted the Committee of Abhimanees, strictly speaking, there was no relinquishment or renunciation of the office of the hereditary trustee by the father of the plaintiff and in spite of the arrangment, the father of the plainttff was very much in the picture during his life time and after him the plaintiff. Learned counsel would contend that neither the father of the plaintiff nor the plaintiff ever stood dissociated from the management of the temple and the Committee of Abhimanees got constituted to serve a particular purpose and exigency and in any event, after 1941, the Committee of Abhimanees ceased to exist, and from 1947 onwards the plaintiff in his own right as the hereditary trustee is in management of the temple. In any event, learned counsel would further submit that once the office is held to be hereditary, there could not be relinquishment of the said office any by the peron for the time being in office and by that there could not be deprivation of the rights of the persons who are entieled to succeed to the office.
3. It is true, hereditary trusteeship is not property within Art. 19(1)(f) (now deleted) or any other Article of the Constitution. Vide Kaki Nada Annadana Samajam v. Comm. of H.R & C.E . 1972 I M.L.J S.C 5—85 L.W 95 S.N. In that case, the Supreme Court distinguished the office of hereditary trustee from that of a Shebait of a religious institution, or a Matadhipathi or a Mahant where the ingredients of both office and property, of duties and personal interests are blended together. The Supreme Court countenanced that the position of hereditary trustee is that of a Dharmakartha or a mere manager or custodian of a religious institution with an exception, namely, that the hereditary trustee succeeds to the office as of right and in accordance with the rules governing succession (emphasis applied by underlining). Once we countenance that succession as of right is available to the office of the hereditary trustee, it is not possible to permit a person in the office for the time being to barter it away for no value, so as to stultify and cripple the rule of succession. Such bartering away, release or relinquishment by the person for the time being in office in the hereditary trusteeship will be of no legal consequence and the person who is entitled to succeed can insist and claim his right as a successor, ignoring such release or relinquishment.
4. In Janaki Ammal v. Sanjeevi Chettiar . 1941 I M.L.J 510=53 L.W 290. it has been countenanced that an alienation or release or renunciation of office of a trustee not for value in favour of the next or immediate heir is valid and otherwise, it is invalid. In Angurbala v. Debarata . A.I.R 1951 S.C 293 = 64 L.W 960., it has been countenanced that the general law of succession governs also the right of shebaitship. In Kalipada Chakraborti v. Palani Bala Devi, it was held that a Shebaitship combines in it both the elements of office and property and it is heritable. In Janki Raman P.D v. Koshalyananda P.D, a Bench of the Patna High Court countenanced that there is no power in a shebait to relinquish his right to the exclusion of his heir. It is true that the case of a shebaitship stands on a stronger footing. But, as pointed out by the Supreme Court in Kakinada Annadana Samajam v. Commissioner of H.R & C.E the law of succession applies to the office of hereditary trustee also and the hereditary trustee succeeds to the office as of right and in accordance with the rules governing succession. Hence, the rule inhibiting relinquishment or renunciation will apply with equal force to the case of hereditary trusteeship. Mr. V. Nicholas, learned Government Advocate, appearing for the fourth defendant, fourth respondent herein, does not dispute this position in law. If this is so, I am not able to annex any legal significance or implication to the constitution of the committee of Abhiminees in 1902. The case of the plaintiff is that despite such arrangement, his father continued to be in management till his demise and thereafter the plaintiff took up management. In any event, from 1947 there is no committee at all and the plaintiff is in management of the temple and, according to him he is in such management as hereditary trustee. The case of the plaintiff that he is in management from 1947 has not been denied in the written statement of the contesting fourth defendant. He merely wanted to sustain his order in which he countenanced relinquishment and surrender of the office of the hereditary trustee by the father of the plaintiff. The evidence placed in the case, if at all, can indicate that during the period 1902 to 1941, there was a committee of Abhimanees. But, it cannot be stated that either the father of the plaintiff or the plaintiff stood dissociated from the trusteeship and management and, on the other hand, they continued to be very much in the picture. From the features disclosed, it is not possible to strictly spell out relinquishment or renunciation of the hereditary trustee. Even otherwise, relinquishment or renunciation of the hereditary trusteeship for no value, as per discussion supra, cannot be countenanced, so as to deprive a person entitled to succeed in the present case the plaintiff of his right to do so. On facts, it has come out that the plaintiff in his right as a successor has come into the office of hereditary trustee. For all these reasons, I am not able to uphold the judgment and decree of the court below and accordingly, this appeal is allowed; the judgment and decree of the Court below set aside and the suit of the plaintiff will stand decreed as praved for. In the circumstances of the case, the parties are directed to bear their respective costs throughout.
5. Mr. C. Ramanathan, learned counsel appearing for the third defendant, third respondent herein, states that his client and his brothers are also claimants for the hereditary trusteeship and even earlier this Court, in C.R.P No. 2510 of 1974 by order, dated 17th April, 1978 has countenanced that the scope of the statutory suit cannot take in disputes between rival claimants. Taking note of this position, both the plaintiff and the third defendant filed a joint memo before the court below stating that the dispute between the plaintiff on the one hand and the third defendant and his brothers on the other, being rival claimants to the trusteeship, may be left open to be decided in a separate suit and the court below has accordingly left this question open. This position is left undisturned by this judgment in appeal. In any event, I make it clear that so far as this position is concerned, it stands reiterated and the allowing of this appeal and setting aside of the judgment and decree of the court below and granting relief to the plaintiff need not be construed to have decided one way or the other the rival claims to the hereditary trusteeship as between the plaintiff on the one hand and the third defendant and his brothers on the other.
VCS.