AR. Lakshmanan, J.
The above Letters Patent Appeal has been directed against the judgment of a learned single Judge of this Court dated 7-11-1995 in Appeal No. 240 of 1984 dismissing the appeal, thereby confirming the judgment and decree of the learned Principal Subordinate Judge, Chengleput, dated 30-11-1982 in O.S No. 257 of 1981. The plaintiff is the appellant herein.
2. The case of the appellant is as under: The appellant Sabha, from out of its collections from the members of the Sabha, founded Sri Lakshmi Hayavadhana Perumal Temple. The Sabha was duly registered under the Tamil Nadu Societies Registration Act and the object of the Sabha is both religious and secular in nature. One of the objects of the Sabha is to construct a temple for the exclusive worship of its members. In or about 1958, the temple in question was constructed on the land donated by one P.S Srinivasan of St. Thomas Mount and the construction was completed during 1972. The management and the day-to-day affairs of the temple are being looked after by the Secretary of the Sabha and as such, the Sabha has got every right to manage and maintain the affairs of the temple as its foundercum-hereditary trustee.
3. The appellant Sabha filed an application under Section 63(b) of the Hindu Religious and Charitable Endowments Act (hereinafter referred to as the Act) before the 2nd respondent for a declaration that the appellant Sabha is the hereditary trustee of the institution. The 2nd respondent dismissed the said application, which was confirmed by the 1st respondent. As against the rejection of the application under Section 63(b) of the Act, the appellant filed the statutory suit O.S No. 157 of 1981 on the file of the Subordinate Judge, Chingleput. The respondents defended the suit contending that the suit temple is a public temple constructed out of public collections including collection from the members of the appellant Sabha and that the temple is one covered under Section 6(20) of the Act. The trial court rejected the claim of the appellant by holding that the appellant is not entitled to be declared as the hereditary trustee of the suit temple. Aggrieved by that, the appellant preferred A.S No. 240 of 1984, which was also dismissed by a learned single Judge of this Court. Hence the present Letters Patent Appeal by the Sabha.
4. According to the appellant the suit temple is dedicated to Sri Lakshmi Hayavadhaha Perumal in Nanganallur, Chennai.-61. The said temple has been founded by the members of the appellant Sabha from and out of the collections made from and amongst the members of the said Sabha. The sabha itself was formulated for the purpose of constructing a new temple for the benefit of the members of the said Sabha and the Sabha was registered under the Societies Registration Art. The objects of the Sabha are to promote spiritual pursuits of Vishistadvaitha philosophy as propounded by Sri Bhagavath Ramanuja and Sri Vedantha Desika, to conduct discourses and arrange for lectures, to conduct classes in Vedas, Upanishads, Divyaprabandas and Sthothrapathas relating to Vashishtadvaitha faith and philosophy, to work for cordial relationship and understanding among persons having different religions and also among persons practising different religions, to make representations to Government and other leading religious institutions in connection with any religious issue of public importance, to secure representations on committees appointed by Government and other bodies relating to the objects of the Sabha, to construct, own and maintain temples and other places of worship, Mantapams and the like, to public magazines, journals and other literatures, to establish and maintain libraries and reading rooms and to organize seminars, group discussions and conferences and raise charities, fund for the purposes of giving charities, etc.
5. The appellant submits that the objects of the Sabha consist of both religious and secular, its main object was to construct a temple for the exclusive worship by its members. The land where the institution in question is situated, was donated by one P.S Srinivasan of St. Thomas Mount. Its total extent is 1-3/4 grounds. The said P.S Srinivasan is also an active member of the Sabha. The members of the Sabha collected nearly Rs. 2 lakhs and constructed the institution in question. The Sabha has also received a sum of Rs. 25,000/- from the respondents as Government grant. The construction was commenced in the year 1968 and completed in the year 1972. Kumbabishekam was performed during 1972 from and out of the collection made amongst the members of the Sabha. The institution in question has no property of its own. The day-to-day affairs of the institution are being looked after by the Secretary of the Sabha, who is being elected by its members from time to time. The members of the Sabha used to donate liberally for the maintenance of the institution. The institution has not received any contribution from outsiders either for its construction or for its day-to-day maintenance. It is the personal property of the Sabha consisting of over 120 members.
6. According to the appellant, since the institution is the personal property of the Sabha, the Sabha has every right to manage and maintain the affairs of the institution as its foundercum-hereditary trustee. The Sabha is represented by its Secretary. The appellant filed a petition under Section 63(b) of the Act before the 2nd respondent for a declaration that the appellant is the hereditary trustee of the institution. That application was dismissed by the 2nd respondent, in O.A No. 69 of 1977. As against such dismissal, the appellant filed A.P No. 174 of 1978 before the 1st respondent under Section 69(1) of the Act, which was also dismissed by the 1st respondent. According to the appellant, the reasonings adopted by the respondents in coming to the conclusion that the appellant cannot be the hereditary trustee are baseless. The secretary of the Sabha is entitled to hold the office of trusteeship in respect of the temple in question. The trusteeship is only a hereditary one. Hence the suit.
7. The suit was resisted by the respondents. According to them, the suit temple is a public temple constructed out of public collections including from the members of the appellant Sabha, who are members of the public. The institution is for the purpose of Hindu public at large. It is not relevant to consider the objects of the Sabha. The suit temple is not for the exclusive worship of the members of the appellant only. It is a temple as defined in Section 6(20) of the Act. In any event, the suit temple has been dedicated to public for the benefit of the public. The public used this temple as of right. The site has also been taken on lease. Government grant of Rs. 25,000/- was also sanctioned for the construction of the temple. All expenses for the construction of the temple and for Kumbabishekam and the day-to-day expenses thereafter are met out of public contributions.
8. According to the respondents, the allegation of the appellant that the temple does not own any property is not correct. Public at large, other than the members of the appellant Sabha, have contributed liberally for the construction and for day-to-day expenses after the Kumbabishekam. It is not the personal property of the members of the appellant Sabha. The appellant has no right to be declared as the hereditary trustee. There is a Hundial in the suit temple and the public contribute liberally in it. The petition filed by the appellant under Section 63(b) of the Act has been duly considered by the 2nd respondent and was rightly dismissed by him, which was confirmed on appeal by the 1st respondent. The reasonings in both the orders are not liable to be set aside. The appellant Sabha was never the hereditary trustee of the temple in question and it cannot hold the hereditary trusteeship. The temple is a public temple and not owned by the appellant. The Secretary of the appellant Sabha has no right to be appointed as its hereditary trustee. There is no cause of action to file the suit and the cause of action alleged is false. There is a provision in the bye-laws of the appellant Sabha that they can wind up the Sabha, which clause in the bye-laws will clearly show that the trusteeship is not at all hereditary. “Hereditary trustee” has been defined under Section 6(11) of the Act as trustee of the religious institution, 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. None of the requirements of this provision is satisfied in the present case and hence the suit is liable to be dismissed with costs.
9. On the above pleadings, the trial court framed the following two issues for trial:
1. Whether the order of the 1st defendant is liable to be set aside?
2. To what relief?
10. On the side of the plaintiff/appellant, Exs. A/1 to A-10 were marked and one Ramaswami was examined as P.W.I On the side of the defendants/respondents, no evidence, either oral or documentary, was let in.
11. The trial court while dismissing the suit has observed as follows:
“Before ever I conclude I wish to say that taking into consideration of the initiative and efforts taken by the members of the plaintiff Sabha inconstructing the temple by contributing and also by collecting donations from the public, at least one of the members of the plaintiff Sabha can be appointed as trustee of the suit temple. It is for the defendants to decide whether one of the members or more than one of the members of the Sabha can be appointed as trustee of the suit temple, but at least one of the members of the plaintiff Sabha can be appointed as trustee of the suit temple. With this observation, I hold under this issue that the order of the 1st defendant is not liable to be set aside. I answer this point accordingly.”
12. Aggrieved by the judgment and decree of the trial court, the plaintiff preferred A.S No. 240 of 1984 on the file of this Court and a learned single Judge of this Court, having found in paragraph 7 of his judgment that the institution was founded by the appellant Sabha, which is a body of persons, however, dismissed the appeal by holding that the prayer of the appellant for declaring it as hereditary trustee cannot be granted.
13. Aggrieved by the judgment and decree of the learned single Judge, the plaintiff Sabha has filed the above Letters Patent Appeal.
14. We have heard the arguments of Mr. G. Subramaniam, learned Senior Counsel for the appellant Sabha and Mr. K. Elango, learned Govt. Advocate for the respondents/Department.
15. Mr. G. Subramaniam, learned Senior Counsel appearing on behalf of the appellant contended that the learned single Judge having referred to the Case in A.N Ramaswami Iyer and another v. The Commissioner, H.R & C.E, Madras. (ILR 1975 Madras 504 = 1975 II MLJ 178), erred in holding that the appellant sabha does not satisfy any other conditions mentioned under Sec. 6(11) of the H.R & C.E Act. He further submitted that the learned single judge haying found in para-9 of his judgment that “the fact that there are no other founders in the Suit institution and no other manages the affairs of the suit institution,” which would clearly show that the position of the appellant as the founder is not in dispute and in law as per the ruling in Gossami Sri Gridhariji v. Romanlalji Gossami (ILR 17 Calcutta 3), the trusteeship has not been otherwise disposed of, Consequently the presumption is the trusteeship vest in the founder and his heirs and in this case heirs include the next set of trustees. He also submitted that an association can be trustees and hereditary trustees. Referring to the finding of the learned single Judge who has made much of the byelaw 23 which enables the society being wound up, Mr. G. Subramaniam submitted that if only the learned Single Judge had appreciated the effect of Ss. 41 and 42 of the Societies Registration Act, there would not have been any obstacle in the appellant succeeding.
16. The only question that arises for consideration in this appeal is whether a body of persons, viz., Sri Vedantha Sthapana Sabha, Nanganallur, can be a trustee of the temple and when there is nothing in the definition of the word trustee which would deprive a body of persons of the right of trusteeship merely because that body is likely to be fluctuate from time to time. In support of his contention, Mr. G. Subramaniam, placed strong reliance on the judgment of the Division Bench of our High Court consisting of Venkataraman and Maharajan, JJ reported in A.N Ramaswami Iyer v. Commissioner, HR & CE (ILR 1975 Madras. 504=1975 II MLJ 178) wherein the Division Bench held as follows:
“It is clear from Section 6, clause (22) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, that a body of persons such as Brahmin Community of a particular village can be a trustee of the temple, provided the administration of the temple is vested in them. There is nothing in the definition of the word trustee which would deprive a body of persons of the right of trusteeship merely because that body is likely to fluctuate from time to time. If the entire Brahmin Community of the village are deemed to be the hereditary trustees, the mere fact that they comprised a large body of individuals cannot take away that right from them. All of them would be joint trustees. The office will thus be a joint one, the co-trustees forming, as it were, one collective trustee. But if they, for the purpose of convenient management, elected one from amongst themselves as a trustee, it must have been only to facilitate the management of the temple and its properties. Such election by itself cannot confer any exclusive right of trusteeship much less a hereditary right to trusteeship.”
In that case, the suit was filed by the planiffs for themselves and as members of the committee of the Agraharam Pothu Dharmam alias Dharma Paripalana Sabha of Vadakku Ariyanyagapuram against the commissioner of the Hindu Religious and Charitable Endowments (Administration), Madras and others for setting aside the order of the first defendant therein. Their case was that there are two temples in the village Ariyanyagapuram viz., one Siva Temple and on Vishnu Temple and the said Siva Temple is possessed of considerable endowments and has been under the management of the trustees appointed from time to time, while the Vishnu Temple has been customarily and from time immemorial under the continuous and exclusive management and control of the resident Brahmin Community of the village. The Plaintiffs being the present member of the managing committee of the Agraharam Pothu Dharmam known as Dharma Paripalan Sabha, having been selected thereto by the Brahmin residents of the village. The village Brahmin community has been from time immemorial in exclusive control and management of Sri. Venkatachalapathy Devasthanam (the Vishnu temple) and has been functioning through a managing committee selected by the said community from year to year. The claim of the hereditary trusteeship made by the Brahmin community was rejected as untenable. On appeal, the Commissioner, H.R & C.E, dismissed the same. Suit was filed in the lower Court for setting aside the order of the Commissioner. The suit was resisted by the defendants that the plantiffs have failed to establish that they were the hereditary trustees of the suit temple and that consequently, the order of the Deputy Commissioner was not liable to be set aside. The main question that arose for consideration in the appeal filed before the High court was, “Whether the resident Brahmin community of Ariyanyagapuram are the hereditary trustees of Sri Venkatachalapathy Devasthanam.” The Bench held that since 1906, the member of the Brahmin community of the village have been exercising their right of management upto date, it is but reasonable to presume in the absence of any contrary evidence, that they have been in management of the temple from time immemorial. The Bench observed as follows:
“It is a sound principle of law that where there has been a well-established user, extending over a long series of year, it is the duty of the Court, if possible, to find a legal origin for the existing facts. It is not improbable that the members of the Brahmin Community of the village actually founded the temple at some point of time, which is lost in the mists of antiquity, and that is why they have been hereditarily managing the affairs of the temple.” Under Section 6. clause(22) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, “trustee means any person or body by whatever designation on known in whom or in which the administration of a religious institution is vested, and includes any person or body who are which is liable as if such person or body were a trustees.”
17. In the instant case, the evidence let in by the appellant/plaintiff would clearly show that the temple was founded by the members of the Sabha which is a body of persons and that the Sabha has constructed the temple and it is the founder. It is managed by the sabha only and therefore, they should be declared as the hereditary trustees of the said institution and that they do not want any individual to be declared as hereditary trustee. The trial court has given a finding that the Sabha is the founder of the temple. There is no cross-objection filed by the defendants. Under Sec. 6, Clause(22) of the Act, the term ‘trustee’ has been described. It is clear from the said definition that a body of persons, can be a trustee of the temple, provided the administration of the temple is vested in them. In our opinion, there is nothing in the definition of the word trustee, which would deprive a body of persons of their right of trusteeship merely because that body is likely to fluctuate from time to time. There can be no doubt that the law of the country recognized fluctuating communities as legal persons capable of owning property, as for instance, the caste and the village. The above statement represents the correct position of law. If a whole village is capable of owning property, notwithstanding the fact that the collectivity called the village is necessarily a fluctuating body, we see little reason why such a fluctuating body cannot hold the right of administering and managing the temple and being the trustee thereof. If the right of superintendence or administration of the suit temple validly vests in a body, there can be little doubt that this community is the body, which will be regarded as a trustee of the temple within the meaning of Section 6, Clause(22) of the Tamil Nadu Act XXII of 1959. Clause(11) of the said section defines hereditary trustees to mean:
“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 that founder, so long as such scheme of succession is in force.”
There are three limbs to this definition. A trustee will be regarded as hereditary, if the succession to his office.;
(1) devolves by hereditary right, or
(2) is regulated by usage, or
(3) is specifically provided for by the founder.
18. Learned counsel for the respondent has not cited any decision wherein it has been held that a body of trustee such as a particular village or caste is dis-entitled to be a hereditary trustee. As we have already observed, the law of the country has always recognized the fluctuating communities as legal personae capable of owing property, and therefore it was wrong for the authorities concerned in the trial court to have held otherwise depriving the legal rights of the members of the appellant sabha. It is the sound principle of law that where there has been a well-established user, extending over a long series of year, it is the duty of the Court, to find a legal origin for the existing facts.
19. According to Mr. G. Subramaniam, learned Senior Counsel, the trusteeship is hereditary if
(1) devolves by hereditary right, or
(2) is regulated by usage, or
(3) is specifically provided for by the founder.
According to him, the Sabha comes under the third the category of Sec. 6(11) which relates to cases where the founder of religious institution lays down a scheme of succession of hereditary right and such claim of succession is in force. For the trusteeship to be characterized as hereditary trusteeship it is not necessary that the trusteeship should devolve from father to son and so on. It is enough by long usage the trusteeship remained with a particular family. As regards the person to act as trustee at any particular point of time, it would be open to the family to decide the matter as and when the question arises.
20. In the decision reported in Khaji Muhammad Hussain Sahib v. The Masjiday Mahmood Jamait Managing Committee of Pudupet (ILR 1940 Madras 671 = AIR 1940 Madras 167), it has been held as follows:
“Where a society is formed for certain purposes whose paramount object is charitable, the fact that some of the objects may not be strictly charitable but religious would not render the society any the less a charitable society, if the purpose is one intended to benefit the public or a considerable portion of the public. Such a society could be lawfully incorporated under the Societies Registration Act. Such a society incorporated under the Act could validly acquire by prescription the office of Muthavalli of a Mosque. Whether a society formed for an exclusively religious purpose could be construed as a society for a charitable purpose within the meaning of the Act, left open.”
21. In the decision reported in Muthia Asari v. Madasami Asari (1965-II-MLJ-220), a Division Bench of this court consisting of M. Anantanarayanan and M. Natesan JJ., held as follows:
“We think it is sufficient to point out the position at law for the fact of the present case make it abundantly clear that there is no need, in the immediate context, to strike down any provision of law in the 1959 Act as ultra vires in view of rights guaranteed under Article 26 of the Constitution. Certainly, the fact that the Area Committee purported to nominate members of the particular religious denominations will not be enough to cure the vice or infirmity, if otherwise the rights guaranteed to this body under Article 26(d) are effectively taken away by the nomination. But the matter seems to be academic at the movement, since the terms of the members who were previously functioning as trustees, we shall assume as de facto trustees have come to an end. The temple, we must reiterate, belongs to the entire body of the Viswa Karma Brahmin community of the district, and not merely to members of the fivemnamed villages or certain villages. The interim powers of the Commissioner or the Area Committee to make arrangements for the day-today administration of the temple and its endowments are not in dispute. Hence, we direct that such arrangements made, as appear feasible and expedient. In the meantime, it is obvious that an electoral roll has to be prepared of the members of this community in the district, which form a corporate body in whom are vested relevant rights under Article 26 of the Constitution. If such a roll is prepared, some kind of an electoral meeting has to be convened, or an electoral college has to be formed and two or three trustees, as convenient, will have to be elected by the electorate. Certainly, the Area committee and the Commissioner will have discretion to decline to accept the elected candidates who suffer from any specific unsuitability or infirmity unfitting them from office; in that case, election may have to be held again in that particular respect. But subject to this restriction, it is the corporate body that has to elect trustees for the administration and management of the temple and its properties. Such arrangement may be carried out by the authorities under the directions of the Commissioner (first defendant) after the proper interval of time; in the meantime, the interim arrangements will continue to be enforced.”
22. In the decision reported in K. Panicker v. Damodara (AIR 1976 Kerala 86), it has been held as follows:
“If there was a trust created by the public for a public charitable purpose namely establishing, maintaining and running a school the fact of the registration of a society could not change the character of the properties which had already been constituted as trust properties and impressed with the trust and addition to those properties must also have the same character.”
23. In the decision reported in Gossami Sri Gridhariji v. Romanalaji gossami (ILR 17 Calcutta 3) it has been held as follows: (@ Page-20)
“According to Hindu Law, when the worship of a Thakur has been founded, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different mode of devolution. This principle is illustrated by the decision in the case of Peet Konnuwur v. Chutter Dharee Singh, and in the present case some of the learned Judges of the High Court have affirmed it, while none has expressed dissent from it. One learned Judge thought that the principle does not apply to this case, because Daoji was not the founder of the Calcutta worship. But their Lordship adopt the view of the other Judges, and holding that the mortal Daoji was the founder, they must also hold that the plaintiff is, by general law, the shebait of the workship.”
24. In the decision reported in Commissioner for H.R & C.E, Madras v. Sethurama Pillai (73 L.W 232), a Division Bench of this Court observed as follows:
“It is well settled that where there are more trustees or managers than one, all would be entitled to act jointly, they would be in the position of joint trustees, and form a corporate body. The office is a joint one, and the co-trustees all form, as it were, one collective trustee, and therefore must execute the duties of the office in their joint capacity. A scheme providing for the management by turns amongst the members of family would be only an arrangement inter se, but outside the family, the co-trustees would form a corporate entity. The representation of the institution could be valid or effective only if all the trustees jointly act, a fortiori the institution or the body of trustees can be bound only if they are all impleaded. No one of the co-trustees derives title under any one of them, no one of them could be represented by another in legal or quasi-legal proceedings.”
25. As already referred to, the learned single Judge has made much of the byelaw-23 which enables the society being wound up. According to the learned single Judge, if on a particular date the general body of the plaintiff Sabha decides to wind up the affairs of the plaintiff sabha and ceases to function no one will take care of the administration of the suit institution. Learned single Judge has further observed that if such a contingency arises, there will not be anybody to look after the affairs of the institution if the plaintiff/appellant is appointed as the hereditary trustee. In our opinion, Sections 41 and 42 of the Societies Registration Act, 1975 would be the answer to such an apprehension. Sec. 41 of the said Act deals with the dissolution of registered societies and adjustment of their affairs. Section-42 provides that on dissolution, there shall remain after the satisfaction of all its debts and liabilities, any property whatsoever, the same shall not be paid to or distributed among the members of the said society, or any of them, but shall be given to some other registered society or to any association of persons having the same object or objects similar to those of such registered society, to be determined by a special resolution or in default thereof by the Court. We have already noticed that it is an admitted fact that the founder of the temple is the Sabha, which finding has not been challenged by the respondent Board. Therefore, the only question that was argued before the Court was, “Whether a body of persons/society or office-bearers of a Sabha, can be recognized as a hereditary trustee or a trustee of the temple?”
26. For all the foregoing reasons, we are of the view that since the entire administration of the temple is vested in the Sabha which consists of the office-bearers and members of the Sabha/Society, they alone are entitled to administer the temple and its properties which are also vested with them either as joint-trusteesor as co-trustees. The orders of the second defendant in O.A No. 69/77 dated 16.6.78, confirmed by the first defendant by his order dated 14.7.1981 made in A.P No. 174/78 are hereby set aside and consequently, the appellant/plaintiff is entitled to hold the office of trusteeship in Sri Lakshmi Hayavadhana Perumal Temple in Nanganallur, Saidapet Taluk, as hereditary trustee. The order of the learned single Judge confirming the order of the learned Sub-Judge of Chengalpet in O.S No. 257/81 is hereby set aside. The L.P.A succeeds No costs. consequently, CMP. No. 17611/95 is closed.
KK/RR/VCS