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Case Number

W.A No. 397/77

Attorney(S)

For the Appellant: B. Prakash Rao, S.V. Maruthy, Advocates.

Judges

Ramachandra Rao
Jagannadha Rao, JJ.

Acts

provisions of section 77 (1) (h)
sub - section (2) of section 31
section 77 (1) (h)

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Smart Summary

Judgment Summary: Jagannadha Rao, J.

Factual and Procedural Background

This appeal challenges a single judge's decision that allowed a writ petition (W.P. No. 2090/1976). The appellant in the present writ appeal had been the 3rd respondent in the writ petition; the original writ petitioners (hereditary trustee and chairman of the temple committee) are respondents 1 and 2 in this appeal. The dispute concerns entitlement to the office of archaka of a temple in Wanaparthy taluk, Mahaboobnagar district, and lands (ac. 9 - 89 cents) which are recorded in the sethwar/survey-settlement register as inam lands burdened with the service of archakatvam.

Key factual background: Ramaswamy was the original archaka and inamdar for the lands. After his death, his sons Srirangacharyulu and Singaracharyulu rendered service by turns; thereafter Srikrishnamacharyulu (son of Srirangacharyulu) rendered service. The present appellant asserted he was the adopted son of Singaracharyulu and sought to perform the archaka service. He obtained a civil decree in O.S. No. 22/62 (confirmed on appeal) declaring the adoption.

Procedurally, after obtaining the civil decree the appellant applied on 11-2-1972 under section 31(2) of the A.P. Charitable and Hindu Religious Institutions and Endowments Act (1966) for permission to assume the office. The Commissioner (after notice and receipt of a counter from the temple manager and an assistant commissioner's report) issued an order on 10-11-1972 permitting the appellant to assume office under section 31(2). The hereditary trustee filed a revision under section 83 of the Act before the Government; the Government rejected the revision as not maintainable, concluding that the Commissioner's order was administrative and not quasi-judicial. The hereditary trustee then filed the writ petition which the single judge allowed on the ground that the Commissioner's order was quasi-judicial and therefore subject to revision. The present appeal arises from that single-judge decision.

Legal Issues Presented

Whether an order of the Commissioner under section 31(2) of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, permitting a person to "assume charge" of a hereditary office (archakatvam), is quasi-judicial (and therefore amenable to revision under section 83) or is purely administrative in nature.
Whether, alternatively, the Commissioner acted without jurisdiction because the appellant should first have sought adjudication before the Deputy Commissioner under section 77(1)(h) of the Act as to whether the office of archakatvam was hereditary.

Arguments of the Parties

Appellant's Arguments (3rd respondent in the writ petition; now appellant in this appeal)

The Commissioner's order under section 31(2) is purely administrative and not quasi-judicial; thus revision under section 83 is not maintainable (relying on State of A.P. v. S.M.K.P. Gurukul).
It was not the manager's case before the Commissioner that the Deputy Commissioner should first decide under section 77 whether the office was hereditary.
The hereditary trustee is estopped from denying the hereditary nature of the office because he had permitted three generations of archakas to assume office without formal appointment.
The inam lands were burdened with service; therefore there was no real doubt or dispute that the office was hereditary.

Hereditary Trustee's Arguments (1st writ petitioner)

The Commissioner's order was quasi-judicial in nature; hence the revision to the Government under section 83 was maintainable.
Alternatively, even if the order were administrative, the appellant should have obtained an adjudication before the Deputy Commissioner under section 77(1)(h) that the office of archakatvam was hereditary.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in this Opinion
State of A.P. v. S. M. K. P. Gurukul (Supreme Court)	Appointment of non-hereditary trustees under section 15 of the A.P. Act is a purely administrative act, not quasi-judicial; administrative authorities need not set out judicial reasons when appointing trustees.	The court relied on this decision by analogy to hold that a Commissioner's order under section 31(2) permitting a hereditary office-holder to assume office is likewise administrative and not quasi-judicial; thus revision under section 83 was not maintainable.
Sangani Adinarayana v. State of Andhra (High Court of Andhra; W.P. No. 379/54)	The term "proceeding" in the provision equivalent to section 83 (section 99 Madras Act) should be understood as a judicial or quasi-judicial proceeding, not an administrative proceeding; "decision or order" indicates a judicial/quasi-judicial character.	Used to support that section 83 applies only to quasi-judicial proceedings, reinforcing the conclusion that the Government properly rejected the revision when the Commissioner's order was administrative.
W.A. No. 66/1966 (affirmation)	Affirmation of the view in Sangani Adinarayana that section-equivalent provisions apply to judicial/quasi-judicial proceedings.	Noted as an affirmation of the judicial/quasi-judicial limitation on Government revision powers under provisions pari materia with section 83.
S. V. Venkata Rao v. State of Andhra Pradesh (W.A. No. 653/73)	The Division Bench accepted the view that the Government's power to call for records and examine proceedings (under the Act) relates to judicial or quasi-judicial proceedings.	The court cited this Division Bench decision as following the Sangani principle and thereby supporting the Government's rejection of revision as not maintainable in the present facts.
Hallamothu Chimpiraiah v. Konuri Butchaiah (Supreme Court)	Where a family has acted as trustees for a long time and for successive generations, and no other person has exercised the right, there is a presumption that trusteeship is hereditary.	Applied to support that proof of three generations acting as archakas gave rise to a presumption of hereditary office, justifying the Commissioner's finding and action under section 31(2).
Annayya Tantri v. Ammakka Henuu (Full Bench reference)	Historical and doctrinal background: archakatvam service traceable to Vedic and Puranic periods; various inams granted to archakas intended to be from generation to generation.	Used to contextualize and support the proposition that archakatvam with attached endowments is commonly intended to be hereditary.
Mahamaya Debi v. Haridas Haldar (Calcutta High Court)	Example that certain temple offices (e.g., a pala in Kalighat) were held to be hereditary where custom established heredity beyond doubt.	Adduced as part of the authority showing that hereditary character of temple offices is recognized across jurisdictions and supports the Commissioner's factual finding of heredity.
Krishna Bhat v. Kapa Bhat (Bombay High Court)	Quoted Colebrooke to the effect that purohits and grachika priests are considered hereditary offices.	Referenced to demonstrate established legal and customary recognition of hereditary priestly offices.
Suryanarayanacharyulu v. Seshamma (Madras High Court)	Concluded after review that archakatvam office is heritable property governed by Hindu law of succession.	Relied on to support the proposition that where emoluments are attached, the archaka's office is heritable and partible under Hindu law; used to justify Commissioner's approach.
Angurhala v. Devabrata (Supreme Court)	Approved the view that the office of an archaka, when emoluments are attached, is heritable and partible property governed by Hindu succession principles.	Quoted to show Supreme Court approval of the rule that supports the hereditary character of offices with attached emoluments; reinforced the court's acceptance of the Commissioner's factual findings.
Rajakali Kuar v. Ram Rattan Pandey (Supreme Court)	Also approved the principle that archaka offices with emoluments are heritable and partible property under Hindu law.	Used alongside Angurhala to demonstrate settled law on heredity of archaka offices and to support the Commissioner's conclusion.
Gopal Lall Thakoor v. Teluck Chu Der Rai Rajah; Suttosurrun Ghosal v. Mohesh Chunder; Miner Ramadas v. Hanumantha Rao; Kandaswamy Iyer v. Siva Chithambaram Chettier; Madana Palo v. H.R.E. Board; Munuswamy v. Kanniah Naidu	Grouped authorities cited for the proposition that continuous exercise of a right by successive generations gives rise to a presumption of hereditary trusteeship.	Collected by the court (via Hallamothu Chimpiraiah) to support the presumption that long, successive exercise of a temple office establishes heredity; applied to the present facts of three generations.

Court's Reasoning and Analysis

The court proceeded by addressing the two principal legal questions:

Character of the Commissioner's Order under section 31(2):
- The court examined section 31(2), which permits "the person next entitled to succeed" to, with the permission of the Commissioner (or Deputy/Assistant Commissioner), "assume charge" of a hereditary office. The statutory function is to permit assumption of charge rather than to adjudicate wide-ranging disputes.
- Relying on the Supreme Court decision in State of A.P. v. S.M.K.P. Gurukul, the court noted that the appointment of trustees under section 15 was held to be an administrative act, not quasi-judicial. The court found no reason to treat the Commissioner's act of permitting assumption of office under section 31(2) as quasi-judicial when appointment under section 15 had been held administrative.
- The court further relied on earlier decisions (Sangani Adinarayana and its affirmation and the Division Bench in S. V. Venkata Rao) to construe section 83 as applying to judicial or quasi-judicial proceedings only; accordingly, a purely administrative order is not amenable to revision under section 83.
- Conclusion on this point: the Commissioner's order under section 31(2) is administrative; the Government correctly rejected the revision as not maintainable under section 83.
Jurisdictional challenge and the role of section 77(1)(h):
- The hereditary trustee contended the Commissioner lacked jurisdiction and that the appellant should have obtained an adjudication before the Deputy Commissioner under section 77(1)(h) on whether the office was hereditary.
- The court examined the Commissioner's factual findings: (a) the sethwar/survey-settlement register shows the lands in the name of original archaka Ramaswamy and burdened with service; (b) successive generations (Ramaswamy → sons Srirangacharyulu & Singaracharyulu → Srikrishnamacharyulu) had assumed and exercised the office; (c) the appellant proved adoption by decree; (d) the assistant commissioner's report corroborated these facts. The Commissioner therefore found the office hereditary and permitted assumption of office.
- The court held that section 77(1)(h) is engaged only when there is a real dispute as to the hereditary nature of the office. Where the proved facts leave no room for a legitimate dispute, it is open to the Commissioner to act under section 31(2). The hereditary trustee, having permitted three generations to assume office without formal appointment, could not belatedly create a dispute.
- Conclusion on this point: the Commissioner's order was not without jurisdiction and there was no requirement to direct the appellant to seek adjudication under section 77(1)(h).
Evidentiary and doctrinal support:
- The court surveyed multiple authorities demonstrating that where emoluments are attached (e.g., land inam grants burdened with service), the office of an archaka is generally recognized as hereditary and partible property governed by Hindu succession. Those authorities reinforced the weight of the Commissioner's factual findings and the presumption arising from successive generations exercising the office.

Holding and Implications

Holding: Writ Appeal Allowed. The appellate court allowed the writ appeal and set aside the single judge's order that had allowed the writ petition. The writ petition is dismissed.

Immediate consequences for the parties:

The Commissioner's order dated 10-11-1972 (permitting the appellant to assume office of archaka under section 31(2)) is upheld in substance because the Government was correct to reject revision as not maintainable.
The hereditary trustee's writ petition is dismissed. The Commissioner's exercise of administrative power to permit assumption of office stands; the appellant's entitlement (based on adoption decree and hereditary succession evidence) is recognized for the purpose of assuming the office.
No costs; advocate's fee awarded at Rs. 200/- (as recorded in the judgment).

Broader implications: The court refrained from creating a novel precedent altering the existing analysis: it applied existing authorities to hold that the Commissioner's act under section 31(2) is administrative and not amenable to revision under section 83 where no real dispute exists as to heredity. The decision confirms that, where documentary and historical evidence show successive generations assuming an office and emoluments are attached, a presumption of heredity arises and the Commissioner may permit assumption of office without referral to the Deputy Commissioner under section 77(1)(h).

This summary contains only facts, arguments, legal statements and outcomes expressly stated in the provided opinion.

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V. Rangacharyulu v. Raja T. Rameswara Rao, Hereditary Trustee Chairman Of The Temple Committee Wanaparthy, Mahabubnagar And Others

Jagannadha Rao, J.:-

(1) This writ appeal is directed against the judgment of the learned single judge allowing the writ petition no. 209o/1976. The appellant in this appeal was the 3rd respondent in the writ petition and the 1st and 2nd respondents herein were the petitioners 'in the writ petition. The 3rd and 4th respondents herein were the 1st and 2nd respondents in the writ petition.

(2) The 1st respondent (writ petitioner) is admittedly the hereditary trustee and chairman of the temple committee of wanaparthy taluk, mahabobnagar district. He is also the hereditery trustee of sri venkateswara swamy temple, kothakota. He filed the writ petition questioning the order of the government (3rd respondent herein) in g. O. Rt no. 125/27 rev. (endowments - ii) department dated 18 - 5 - 1976 by which the government rejected the revision petition filed by the writ petitioner as not maintainable under section 83 of the a. P. Charitable and hindu religious institutions and endowments act (act xvii of 1966) (hereinafter called the act). Tent of ac. 9 - 89 cents of wet and dry land are the inam lands burdened with service of archakatvam in the above temple. The above facts are contained in the entries in the sethwar or surveysettlement register. Ramaswamy had four sons (1) sri rangacharyulu (2) simhacharyulu (3) singaracharyulu and (4) vendantacharyulu. The second of them has no male issue while the fourth of them left the village and his whereabouts were not known. Ramsawamy continued to be the archaka of the temple during his life time and was enjoying the lands ac, 9 - 89 cents which were burdened with service to the deity. After ramaswamy's death his first son sri r'angacharyulu and his third son singaracharyulu were the office holders. After the death of srirangacharyulu his son sri krishnamacharyulu along with his uncle singaracharyulu 'was rendering service. After singaracharyulu's death in 1962 sri krishnamacharyulu along was rendering service.

(3) After the death of singaracharyulu in 1952 the appellant (3rd respondent in the writ petition) approached the manager of the temple sri n. Pratap reddy and informed him that he was the adopted son of singaracharyulu and should be allowed to perform service during his turn of six months. The manager directed sri krishnamacharyulu to hand over the keys to the appellant the said direction was not obeyed by sri krishnamacharyulu.

(4) The manager therefore directed the appellant to get his adoption declared b'y a court of law, accordingly the appellant filed o. S. No. 22/62 on the file of district munsif's court, wanaparthi for a share in the private properties of the family (which did not include the inam lands). The district munsif's court upheld the adoption of the appellant by judgment dated 13 - 9 - 1963 and the said judgment was confirmed by the district court mahaboob nagar in a. S. No. 73/67 on 21 - 3 - 1967.

(5) After obtaining the decree as suggested by the manage of the temple the appellant moved the commissioner of endowments on 11 - 2 - 1972 under section 31 (2) of the act to permit him to assume office as an archaka. The commissioner issued notice to the manager of sri n. Pratap reddy on 21 - 2 - 1972 asking him to attend the enduiry on 28 - 2 - 72. In pursuance of the said notice the hereditary trustee (1st write petitioner) sent a petition dated 22 - 2 - 1972 requestiong for an adjournment on the ground that the manager was busy in connection with the bradmostavam ceremonies in another temple. The commissioner a djourned the enquiry and the manager fuiled a detailed counter on 27 - 3 - 72. In that countet the manager stated that the appellant was not the hereditary archaka that the appellant's alleged adoptive father singaracharyulu and srikrishnamacharyulu were not the rocognished archakas, tkat they were not rendering service by rotation, that srikrishnamacharyulu was irregular and the temple was locked, that srikrishnamacdaryulu did not make any claim even though the temple was lockedand that would show that the office was not hereditary he also court ended that the civil suit did not cover the inam lands. He also stated that none of the arehakas includidglate vedantacharyulu or his ancestors ever claimed any rights under the inam act. It was stated that the appellant may be directed to file civil suit to establish his hereditary right.

(6) The assistant commissioner of endowments, mahaboobnagar sent a detailed report to the commissioner in his rc. No. A3/1087/ 71 dated - 26 - 2 - 1972 which shows that late ramaswamy was the original archa - ka and inamdar for ac. 9 - 89 cents, that after him his sons srirangacharyulu and singaracharyulu were rendering service by turns each for six months enjoying the half share in the income of the service inam lands, and that srikrishnamacharyulu, son of srirangacharyulu assumed office after srirangacahryulu and was rendering service along with his uncle singaracharyulu etc.

(7) On the basis of the application dated 11 - 2 - 72 filed by the appellant the counter filed by the manager dated 27 - 3 - 72 and the report of the assistant commissioner dated 26 - 2 - 72 the commissioner passed a reasoned order on 10 - 11 - 1972 in o. A. No. 5/72 under section 31 (2) of the act permitting the appellant to assume the office of archakatvam. In the said order the commissioner held that the lands were inam lands, that ramaswamy was the original archaka, that after him his two sons srirangacharyulu and singaracharyulu assumed office and were rendering service each for six months enjoying the half share in the income of the service inam lanm lands. He also found that after srirangtcharyulu his son srikrishnamacharyulu assumed pffice and was rendering service along with his uncle - singaracharyulu and when the latter died in 1962 the appellant was allowed by the manager n. Pratap roddy to perform has turn and the manager directed srikrishnamacharyulu to hand over the keys to the appellant for the period when the appellant s turn came in, but that the keys were not handed over to the appellant by srikrishnamacharyulu. At the instance of the manager the appellant filed the civil suit and established that he was the adopted son of singaracharyulu, and that the appeal filed by srikrishnamacharyulu was dismissed. In view of these facts the commissioner held that the appellant was the adopted son of singaraeharyulu and therefore the commissioner permitted the appellant to assume office of archakatvam under section 31 (2) of the act.

(8) Against the order of the commissioner the hereditary trustee (1st writ petitioner) filed a revision under section 83 of the act before the government. The government rejected the revision as not maintainable as it was of the opinion that the order of the commissioner was not quasi - judicial in nature but was purely administarive and therefore not amenable to revision in view of an earlier ruling of this court in (u. C.) a. No. 653/71

(9) Questioning the order of the government the hereditary trustee filed the presentt writ petition no - 2090/76 impleading the government and the commissioner as respondents 1 and 2. And the appellant as the 3rd respondent. The learned single judge who heard the matter allowed the writ petition on the short ground that the order of the commissioner was not administrative in at nature but was quasi - judicial and that therefore the revision was maintainable.

(10) Against the said judgment of the learned single judge the 3rd respondent in the writ petition has preferred this writ appeal.

(11) Sri b. Prakash rao, learned counsel for the appellant contended that the order of the commissioner under section 31 (2) of the act was purely administrative in nature and not quasi - judicial and was not amenable to a revision before the government. He also contended that it is not the case of the manager before the commissioner that the deputy commissioner should first decide under section 77 of the act as to whether the office of archaka was hereditasy or not. He also contended that the hereditary trustee was estopped from - claiming that the office of archakatvam was not hereditary in view of the pre - existing facts of the case and the conduct of the hereditary trustee in permitting three generations of the archakas to assume office without any order of appointment. He also submitted that, the inam lands were burdened with service and therefore there was never any doubt or dispute that the office was not hereditary.

(12) On the other hand sri v. R. Reddy the learned counsel for the hereditary trustee (1st writ petitioner) contended that the order of the commisiioner was quasi - judicial in nature and therefore the revision to the government was maintainable. He also argued that alternatively, even assuming that the order was purely administrative in nature, the appellant should obtain an adjudication before the deputy commissioner under section 77 (1) (h) of the act that the office of archakatvam in the temple was hereditary.

(13) For an appreciation of the points in the case it is necessary to advert to tub - clauses (l) and (2) of sec. 31 of the act. They are as follows :

"appointment etc. Of office holders and servants : (1) vacancies, whether permanent or tamperary, amongst the office holders or servants of a charitable institution or endowment shall be filed by the trustee is every case where the office of service is not hereditary. (2) in every case where the office of service is hereditary the person next entitled to suceced, according to the rule of sucession laid down by the founder, or where no such rule is laid down, acording to the usago or coustom applicable to the sect or sampraday a to which the institution or endowment belongs or where no coustem or usago exsite according to thje loe of succeasion for the time baing in force shall permission of as the cas may be, assume charge of such office or service"

Under sub - section (2) of section 31 of the act, in every cane whore the office or service is hereditary, the person next entitled to succeed:

(a) according to the rule of succession laid down by the founder, or. (b) where no such rule is laid down, according to the usage or custom applicable to the sect or sampradaya to which the institution or endowment belongs or (c) where no such usage or cusom exists, according to the law of succession for the time being in force, shall with the permission of the commissionr or daputy commistsioner or rhe assistant commissioner, as the case my be, assume charge of such office or service.

(14) It is also necessary to refer to the provisions of sub - clause (14) of seetion 2 of the act which read as follows : :

" (14) 'hereditary office holder' means an office holder of a charitable or religious institution or endowment, the succession to whose office devolves according to the rule of succession laid down by the founder or according to usage or cutom applicable to the institution or endowment or according to the law of succession for the time being in force, as the case may be"

Under sub - clause (2) of section 31 of the act all that commissioneri does is to permit the person mentioned in that sub - clause to "assume charge" of such office or service.

(15) The primary question therefore is whether an order of the commissioner under sub - clause (2) of section 3 of the act permitting a person to assume charge of the office or service can be said to be a quasi judicial order or whether it is only a purely administrative order srib. Prakash rao, the learned counsel for the appellant relied upon the decision of the supreme court in state of a. P. Vs. S. M. K. P. Gurukul and submitted that their lordships of the supreme court held that an order of the government apponting non - hereiditary trustees under section 15 of the a. P. Charitable and hindu religious institutions and endowmentt act was purely administrative and was not quasi - judicial in nature and that therefore afortiori an order of the commissioner merely permitting a person to assume office as hereditay office - holder was purely adminitrative.

(16) In the above said decision of the supreme court government appointed a board of trustees under sec. 15 (a) of the act. Their lordships observed as follows:

"an examination of the provisions of the statute does not how that in appointing trustees to the temples the concerned authorities have to act judicially. Section 16 lays down the disqualifications for being appointed a trustee. Sec. 15 (4) lays down that in making the appointment of trustees due regard shall be bad to the religious denominations or aay section thereof to which the insttitution belongs or the endowment is made and the wishes of the founder. If the appointment satisfies the above tests and if a person appointed is not disqualified under any of the clauses of sec. 16, the appointments will not be affected in any way. The administrative authority concerned does not have to weigh the relative merits of various candidates in making the appointment of trustees. Normally it would exercise its own discretion as to who is best fitted to discharge the duties and functions of a trustee. But that is not to say that it must set out the reasons as to why it has appointed somebody as trustee and not appointed somebody else as a trustee. We are of the opinion that the learned, judges of the high court were in error in so far as the implication of their observation is that in exercising their power under; sec. 15 the administrative authorities concerned are exercising quasi - judicial functions."

(17) When the appointment of a person as a non - hereditary trustee under section 15 by the government is held by the supreme court to be a purely administrative act and not a quasi - judicial one we fail to see how an order of the commissioner merely permitting a hereditary office holder to "assume office" can be considered to be a quasi - judicial order. We are of the opinion that an order of the commissioner under section 31 (2) of the, act merely permitting the hereditary office holder to assume office is purely administrative and therefore the government was right in rejecting the revision under section 83 of the act as not maintainable. Sab - clause (1) of section 83 reads as follows :

" (1) the government may suo motu or on an application call for and examine the record of the commissioner or deputy commissioner or assistant commissioner or executixe officer or any trustee, not being the trustee of a math or specific endowment attached to the math, in respect of any proceeding, not being a proceeding in respect of which a suit or an appeal or application or reference to a court is provided by this act, to satisfy themselves as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein and if, in any case it appears to the goernment that such decision or order should be modified, annulled, reversed or remitted for reconsideration they may pass orders accordingly. Provided that the government shall not pass any order prejudicial to any party unless he has had an opportunity of making his repres ont - ation"

The said section is in pari materia with section 99 of the madras hindu religious and charitable endowments act 1951 (act xix of 1951) ,

(18) Dealing with section 99 of the madras act umamaheswaram j. Observed in sangani adinarayana vs. State of andhra of high court of andhra dated 6 - 4 - 56 (w. P. No. 379/54 disposed of on 6 - 4 - 56 as follows : :). .

"the expression "proceeding" snould do understood as a judicial or a quasi - judicial proceeding and not an administrative proceeding. The words ''decision or order" passed in the proceedings also emphasises the view that the proceedings passed by the commissioner, deputy commissioner or assistant commisionor, under section 99 should be a judicial or a quasi - judicial order".

The said judgment was affirmed in w. A. No. 66/1966 by hon'ble k. Subba rao c. J. , (as he then was) and justice n. D. Krishna rao (as he then was) on 6 - 7 - 1956. The above view was accepted and followed by a division bench of this court consisting of sambasiv rao, a. C. J. , (at he then was) and raghuvir, j. , in w. A. No. 653/73 dttd 14 - 3 - 1975 in the case of s. V. Vertkata rao vs. State of andhra pradesh which was a case arising under section 83 of the a. p. act xvii of 1966. We are therefofe of the opinion that the government was right in rejecting the revision as not maintainable.

(19) The learned counsel for the hereditary trustee sri v. R. Reddy then contended that assuming that the order of the government was right the order of the commissioner under section 31 (2) of the act was without jurisdiction and that the appellant ought to have moved the deputy commissioner under section 77 (h) of the act for an a djudication on the question whether the office of archakatvam in the temple was hereditary or not.

(20) We are of the opinion that there is no force in this contention. The commissioner has categorically found in his order dated 10 - 11 - 1972 on an examination of the application of the appellant dated 11 - 2 - 1972, the counter filed by sri n. Pratap reddy manager of the temple (who is an appointee of the hereditary trustee) and the report of the assistant commissioner, endowments mahboobnagar dated 26 - 2 - 1972 that the original office holder was one ramaswamy, that the lands were service inam lands, that ramaswammy was enjoying these lands during the period he held office, that on his death his sons srirangacharyulu and singaracharyulu were rendering service by turns each for six months enjoying the income of the' service inam lands and that after srirangacharyulu's son srikrisnnamacnaryulu assumed office and was rendering service along with his uncle singaracharyulu. He also found that the appellant rangacharyulu had established that he was the adopted son of singaracharyulu by virtue of the decree passed by the district munsif's court in o. S. No. 22/62 as up held in appeal and that therefore the appellant was entitled to be recognised as the adopted son of singaracharyulu. The appellant was accordingly permitted to assume office as archa - kas. The report of the assistant commissioner shows that the sethwar or the survey and settlement register confirm that the lands are inam lands burdened with service of archakatvam and that ramaswamy was the original inamdar. It was also mentioned in the report that for three generations starting with ramaswamy and then his sons srirangacharyulu and singachayulu and thereafter srirangacharyulu's son srikrishnamacharyulu were allowed to assume office without any order of appointment and that therefore the office was hereditary in nature. In the counter affidavit filed by the commissioner and the government in this court it was again mentioned that the sethwar or survey and settlement register confirm that rama swamy was the original inamdar, that the lands were mam lands burdened with service of archakatvam and that for three generations the family members assumed office without any order of appointment by the hereditary trustee. Nor has the hereditary trustee produced any evidence either before the commissioner or before us to prove that each time there was a vacancy in the office of archakatvam, the office was being filled up by an order passed by the hereditary trustee and not by way of the sucsessors assuming office in the place of their predecessors - in - intercst. It is therefore clear that when for three generations the office was being filled up hereditarily it was not open to the hereditary trustee to deny the said fact and claim that he has raised a dispute that the office was not hereditary and that therefore the commissioner should not have acted under section 31 (2) of the act but should have directed the appellant to establish the hereditary nature to the office before the deputy commissioner under section 77 (h) of the act. Jn view of the above facts proved from the revenue accounts and from the family history of the archakas and from the conduct of the hereditary trustee, the commissioner was right in proceeding on the basis that there could be no dispute, at this belated tage, regarding the nature of the office and in passing an order under section 31 (2) of the act permitting the appellant to assume office as hereditary archaka.

(21) In respect of archakatvam service where land had been granted in inam to the archakas burdened with service, the question has arisen whether the service would be hereditary.

(22) Seshagiri ayyar, j, in his order of reference to the full bench, in annayya tantri vs. Ammakka henuu traced the origin of the archakatvam service from the vedic and the puranic periods and the latter periods of manu, buddha and sankara. The learned judge observed:

"the existence of various inams in the names of archakas is irrefutable evidence that rich endowments were granted to them to bind them to the service of the deity. The endowment were intended and in most cases expressed to be, from generation to generation"

In the full bench, wallis, c. J. With whom spencer j. Concurred held as follows:

"it is not disputed that in this pait of india the user in the case of temple archaka is that the office is hereditary and descends in the ordinary course of succession."

In the calcutta high court mookerjee j. In mahamaya debi vs. Haridas haldar observed that there was no doubt that a pala in the kalighat temple was hereditary, and the custom in this respect wai established beyond doubt. The bombay high court in krishna bhat vs. Kapa bhat quoted colebrooke. -

"colebrooke in his digest (vol. 1 page 375 madras ed. 1863) describes the position of purohits and grachika priests and says they are considered hereditary office."

The madras high court again considered this question in suryanarayanacharyulu vs. Seshamma. Therein subba rac j. , (as he then was) sitting with panchapakesa ayyar, j. Concluded, after a review of the above cases, as follows:'

"it will therefore, be seen that archakatvam office is heritable property governed by hindu law succession"

And the said view was approved by the supreme court in angurhala vs. Devabrata and in rajakali kuar vst ram rattan pandey.

"the law on the subject is therefore well settled, the office of an archaka when emoluments are attached to it, is heritable and partible property so long as the services are duly performed, the incidents of that property are analogous to those of any other heritable or partible property under hindu law."

And it was further observed that section 58 of the madras hindu religious act (act 2 of 1927) only indicated that where the office was hereditary, the next in line of succession would be entitled to succeed, and the legislature did not mean to depart from the pre - existing law relating to the office of archakatvam service.

(23) In the present case it is clear from the sathwar or the survey and settlement register, that act 9 - 89 cents was registered is the name of the original archaka ramaswami and that these lands were burdened with service. This is clear from the facts found by the commissioner and the report of the assistant commissioner dated 26 - 2 - 1972, as well as the counter affidavit filed on behalf of the government and the commissioner. Further for three generations the archakas were assuming office by succession. In hallamothu chimpiraiah vs. Konuri butchaiah the supreme court was dealing with a case of trustees who were proved to be assuming office for three generations in succession. The said conduct was held sufficient to hold the office as being hereditary. Their lordships observed:

"it is common ground that if members pf the appellants' family have been acting as trustees for a long time and for successive generations and that on other person has exercised the right, there is a presumption that trusteeship is hereditary. The division bench after referring to gopal lall thakoor v teluck chu der rai rajah suttosurrun ghosal vs. Mohesh chunder miner ramadas vs hanumantha rao* kandaswamy iyer vs siva chithambaram chcttier madana palo vs h. R. E. Boarod and munuswamy vs kanniah naidu found this principle well established. Since we have come to the conclusion that from 1867 onwards the family of the appellants have been acting as trustees for three successive generations it follows that they have established their right to be hereditary trustee of the temple in question"

)

(24) In our opinion therefore, the commissioner was right in exercising power under section 31 (2) of the act and permitting the appellant to i assume office as hereditary archaka on the basic that the office was hereditary.

(25) It is true that section 77 (1) (h) of the act states that the deputy commissioner has the power to inquire into and decide a "dispute" as to whether any office is of a herediatry nature or not.

(26) It is not whenever and wherever such a dispute is raised that the provisions of section 77 (1) (h) are attracted, where, as here, no dispute was ever raised by the hereditary trustee during the period when three generations of archakas assumed office and were enjoying the income from the inam lands which were burdened with service, the hereditary trustee cannot suddenly turn round and claim to have raised a dispute. The dispute raised must be real and not fanciful. Where the proved facts of the case leave no room for raiting a dispute under section 77 (1) (h) before the deputy commissioner, it is open to the commissioner to act under section 31 (2) of the act and permit the hereditary archaka next in line of succession to assume office.

(27) On tho facts as proved and found by the commissioner there is tharefors no question of directing the appellant archaka to move the deputy commissioner under section 77 (1) (h) of the act.

(28) We cannot therefore accede to the alternative submission of the learned counsel for the hereditary trustee that the order of the commissioner was without jurisdiction.

(29) For all the above reasons the writ appeal is allowed and tho writ petition dismissed: no costs. Advocate fee rs. 200/ -. W. A. Allowed

V. Rangacharyulu v. Raja T. Rameswara Ra...