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Case Number

W.A No. 1289 of 1988

Attorney(S)

For the Appellant: T. Muralidhar Rao, Advocate.

Judges

Yogeshwar Dayal, C.J
Jagannadha Rao, J.

Acts

sub - section 10 of sec. 38.

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Smart Summary

Judgment Summary — Jagannadha Rao, J.

Factual and Procedural Background

The opinion concerns a dispute about the management and succession of a maternity home and an associated Sri Dattatreya Swamy temple at Badepally village, Mahaboobnagar district. Late Smt. Shanta Bai (founder) started a maternity home in 1952 with the Rashtriya Mahila Samaj and later (about 1960) a small temple was dedicated within the same premises. No instrument was executed at the time of the original dedications. In 1974 a trust deed dated 25-10-1974 was filed and the institution was registered under section 38 of the Charitable and Hindu Religious and Endowments Act, 1966; a certificate dated 2-4-1975 (certificate no. 10/75) by the Assistant Commissioner of Endowments Mahaboobnagar recorded the particulars and appended the trust deed.

Smt. Shanta Bai acted as founder-trustee until her death on 14-10-1982. Her two sons (the present appellants/writ petitioners), Dr. Ashok Kumar and Sri Subhash Talpallikar, were described in the trust deed as hereditary trustees entitled to succeed and manage by rotation. After the founder's death the appellants did not immediately apply for recognition under section 20 of the Act.

Acting on an inspector's report of alleged mismanagement, the Commissioner of Endowments (by order dated 3-9-1983) appointed an inspector or "fit person" to manage the temple (and, it appears, the maternity home). The appellants challenged that appointment and sought recognition as hereditary trustees under section 20(1). The Commissioner returned the appeal papers and told them to approach the Government. The Government (memo dated 9-3-1984) held that the application under section 20(1) should have been filed only before the Commissioner and—in any event—directed that the petitioners proceed to the Deputy Commissioner under section 77 for a declaration on their hereditary trusteeship, and refused to discharge the fit person until a section 77 decision was obtained. The appellants filed a writ petition challenging these directions and the prior orders.

Legal Issues Presented

Whether the petitioners (sons of the founder) were required to obtain a declaration under section 77 of the Act to establish their status as hereditary trustees, notwithstanding the registration under section 38 and the trust deed;
Whether the Commissioner and the Government acted lawfully in directing the petitioners to proceed under section 77 and in appointing a "fit person" under section 20(4)(a) pending such a declaration;
How sections 20 (particularly 20(1) and 20(4)(a)) and 77 of the Act should be interpreted and applied to these facts (i.e., succession to hereditary trusteeship where a rule of succession is recorded in the trust deed and the institution was registered under section 38).

Arguments of the Parties

Appellants' Arguments

The appellants asserted they were entitled to recognition as hereditary trustees under section 20(1) as sons of late Smt. Shanta Bai and that the Commissioner should permit them to assume office.
They contended that no notice was given to them before the appointment of the fit person and that the fit person should be discharged.
They sought immediate permission for the 1st writ petitioner to resume charge as hereditary trustee and chairman, and for the 2nd writ petitioner to be associated with management.

Respondent / Department's Position (as reflected in the record)

The record (counter-affidavit relied upon by the Single Judge) stated concerns of mismanagement: an inspector's report that there was no proper management and that the pedda poojari was collecting rents; to avoid alleged misappropriation the Assistant Commissioner suggested appointment of a fit person.
The Government held that the application under section 20(1) should be filed before the Commissioner, and on the Assistant Commissioner's direction the petitioners were to go before the Deputy Commissioner under section 77 to establish hereditary trusteeship; until such a declaration was made the fit person should continue.
The Single Judge noted (from departmental filings) that the maternity home and temple had been constructed with funds from several philanthropic persons and the Nizam Charitable Trust, and that the trust deed dated 25-10-1974 was unregistered (the judge expressed doubts about hereditary status on that basis).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dasaratna Rami Reddy v. Subba Rao, AIR 1957 S.C. 797	Supports the principle that a pious Hindu's dedication to a deity by the usual ceremonies can create a valid trust; "there is no necessity of any document in writing" for creating an endowment.	The court relied on this authority (together with text from B.K. Mukherjea) to hold that the original dedications (maternity home in 1952 and temple c.1960) could themselves create a valid trust and that a subsequent trust deed of 1974 declaring earlier events was not negated by the deed being unregistered.
V. Rangacharyulu v. Raja T. Rameswara Rao, 1983 (2) APLJ 319 = 1983 (2) ALT 408	Addressed the scope of section 77 (as cited) and the circumstances in which proceedings under section 77 are appropriate.	The court cited this decision in support of its conclusion that section 77 is invoked only when there is a dispute whether trusteeship is hereditary; since no dispute existed here (the Assistant Commissioner had certified particulars under section 38), section 77 was inapplicable and petitioners should not have been directed to seek a declaration under section 77.

Court's Reasoning and Analysis

The court's analysis proceeds from the factual findings recorded at registration under section 38 and from statutory interpretation of sections 20 and 77 of the Act.

Registration under section 38: The Assistant Commissioner's certificate dated 2-4-1975 appended the trust deed dated 25-10-1974 and certified the particulars as genuine. The deed recited that the maternity home was started in 1952 and the temple dedicated c.1960, and expressly named Smt. Shanta Bai and her two sons as founder and hereditary trustees respectively. The court treated the registration certificate and the inspector's certification as an acceptance of those facts.
Dedication without written deed: The court accepted authorities cited in the judgment (including Dasaratna Rami Reddy and B.K. Mukherjea) for the proposition that dedication by ceremony may suffice to create a trust and that no written document is necessary. Therefore, a subsequent (1974) deed describing earlier dedications was "superfluous or merely as a declaration of what took place earlier." Consequently, the Single Judge's view that the 1974 deed being unregistered negated the dedication was rejected.
Nature of the succession rule: The trust deed and the particulars recorded under section 38 clearly disclosed a rule of succession and the designation of the two sons as hereditary trustees during the founder's life and as successors thereafter, to act by rotation with succession by legal heirs as per inheritance law. Because such a rule of succession existed on the face of the registered record, the prerequisites of section 20(1) were present.
Proper role of section 77: Section 77 permits the Deputy Commissioner to decide disputes "whether trusteeship is hereditary or not" and similar questions. The court emphasized that section 77 is available only where there is a dispute on the hereditary nature or whether a person is holding an office hereditarily. Here there was no dispute: the Assistant Commissioner had certified the trust deed and particulars. Consequently, directing the petitioners to obtain a declaration under section 77 was unjustified.
Appointment of a "fit person" under section 20(4)(a): Section 20(4)(a) permits appointment of a fit person where there is (inter alia) a dispute as to the right of succession or where a vacancy cannot be filled immediately. The court held that where there is no dispute and where rule of succession has been established (as by the deed and the section 38 registration), section 20(4)(a) is not applicable. Therefore, the appointment of a fit person on that basis was illegal and without jurisdiction.
Remedy and direction: Given that the requirements for section 20(1) (a permanent vacancy plus a rule of succession laid down by the founder) were satisfied by the trust deed and the registration certificate, the Commissioner should have merely permitted the successors to assume office. The court therefore quashed the governmental and departmental directions requiring section 77 declaratory proceedings and the appointment of the fit person, and directed the Commissioner to pass orders under section 20(1) allowing the two petitioners to assume office and to give effect to chairmanship by rotation as stated in the trust deed dated 25-10-1974.

Holding and Implications

Core Ruling: The writ appeal is allowed; the orders directing the petitioners to obtain a declaration under section 77 and appointing a fit person are quashed, and the Commissioner is directed to permit the petitioners to assume office as hereditary trustees under section 20(1).

Consequences and immediate effects:

The Government memo dated 9-3-1984, the Commissioner's order dated 3-9-1983, and the Assistant Commissioner's order dated 6-12-1983 (to the extent they directed section 77 proceedings or appointed a fit person) are quashed.
The Commissioner of Endowments is directed to pass orders under section 20(1) permitting the two petitioners (Dr. Ashok Kumar and Sri Subhash Talpallikar) to assume office as hereditary trustees of the maternity home and the Sri Dattatreya Swamy temple, and to pass such further orders as to chairmanship by rotation in accordance with the trust deed dated 25-10-1974.
The Single Judge's dismissal of the writ petition was set aside and the writ petition was allowed. There shall be no order as to costs, and an advocate's fee of Rs. 200/- was awarded.

The court did not purport to lay down any broader novel precedent beyond the application of sections 20 and 77 to the specific facts recorded (i.e., registration under section 38 and the absence of any real dispute as to hereditary succession).

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Dr. Ashok Kumar And Another v. State Of A.P Through Secretary To Govt. Endowment Dept. Saifabad Hyderabad, And Others

Jagannadha Rao, J.:-

(1) This appeal raises a question of interpretation of sections 20 and 77 of the a p charitable and hindu religious and endowments act, 1966 (hereinafter called 'the act').

(2) One late smt. Shanta bai of badepally village, mahaboobnagar district was not only religious - minded but also of a philanthropic temperament. She was also an active member of the local mahila samaj. She wanted to construct a maternity home in the year 1952. Accordingly, she brought the women folk under the rashtriya mahila samaj and started a maternity home at badepally village. The object of the said maternity home was to provide free maternity aid to the needy public. A small temple was also constructed and dedicated to lord dattatreya swamy within the premises of the maternity home. The marble statute of the diety was brought from jaipur and got installed by h h. Sri shankaracharya of shringeri. The temple came into existence some time in 1960. At the time of starting of the maternity home or of the dedication of the temple to the diety, no deed was executed by the said shanta bai. However, she got the maternity home and the temple registered under sec. 38 of the 1966 act in 1974 and obtained a certificate in that behalf. (certificate no 10/75 dated 2 - 4 - 1975). The said certificate signed by the assistant commissioner endowments, mahaboobnagar dated 2 - 4 - 1975 reads as follows : - srimathi shanta bai mla trustee of sri dattatreya swami temple and maternity home, badepally applied on 7 - 11 - 74 for registration of the institution and after due consideration, it is hereby certified that the particulars enclosed to this certificate are ganuine and correctly represent the details of the institution viz. , sri dattatreya swami temple and maternity home, badepalli village, mahaboobnagar taluk".

(3) In the proceedings r. Dis. No. A2/2433/74 dated 2 - 4 - 1975 issued by the assistant commissioner of endowments in exercise of his powers under sec. 38 of the act, it is stated that the institution was registered and that the trustee viz, the said shanta bai is requested to report to the assistant commissioner every year any changes and the particulars relating to the institution under sub - section 10 of sec. 38. The particulars furnished by shanta bai to the assistant commissioner are annexed to the certificate and the correctness thereof has been certified by the inspector of endowments. We shall revert back to the details mentioned in the said particulars a little later. We shall now refer to the facts which led to the filing of the present writ petition.

(4) From 1952 till the date of registration of the property under sec. 38 with the endowments department on 2 - 4 - 1975 and from 2 - 4 - 1975, shanta bai managed these properties as founder - trustee till she died on 14 - 10 - 1982. The writ petitioners - appellants in these appeals viz, dr. Ashok kumar and sri subhash talpallikar, are her two sons. For some time, they did not know that they had to apply for being recognised as the hereditary trustees under sec. 20 of the act. As things stood thus, the commissioner of endowments, appears to have passed an order on 3 - 9 - 1983 upon a report by the assistant commissioner of endowments, that the inspector of endowments should act as a fit - person in respect of the dattatreya swamy temple for the better administration of the same. Of course, nothing has been stated about the management of the maternity home. He further directed that the assistant commissioner of endowments was to take follow - up action in the matter. The appellants become alive to the issue only when the fit person started managing the temple. It appears that the fit person also took over the management of the maternity home. At that stage, the appellants filed an appeal under sec. 20 (5) of the act before the commissioner of endowments at hyderabad questioning the orders of the commissioner dated 3 - 9 - 1983 appointing a fit person. They stated that no notice was given to them before the appointment of the fit person and that on 28 - 11 - 1983 when the fit person visited the temple, they came to know about his appointment and that they immediately filed an application before the assistant commissioner of endowments. They pointed out that as per the law, they being the sons of deceased shanta bai, were entitled to be recognised as the hereditary trustees under sec. 20 (1) and that the fit person should be discharged. They prayed that the 1st writ petitioner be allowed to resume charge as hereditary trustee and as chairman of the board of trustees and the 2nd writ petitioner be associated with the management of the same. They also filed a stay application before the commissioner. It appears that the commissioner returned the papers to the petitioners on the ground that he was not competent to review his own order dated 3 - 9 - 1983 appointing a fit person and stated that the petitioners might approach the government. Accordingly, the petitioners filed an application before the government on 10 - 12 - 1983 under sec. 20 (1) praying that they may be recognised as hereditary trustees and for discharge of the fit person. While the matter was thus pending with the government, the assistant commissioner of endowments passed an order on 6 - 12 - 1983 in lr. No. C/2972/83 stating that the petitioners were to go before the deputy commissioner of endowments, hyderabad under sec. 77 of the act for establishing that they were hereditary trustees entitled to be recognised as such. It was at that juncture the government took up the application of the petitioners on the basis of the further representation of the petitioners counsel dated 21 - 2 - 1984, and issued memo no 249/endts/ii - 1/84 - 1 dated 9 - 3 - 1984 stating that the application under sec 20 (1) had to be filed only before the commissioner and not before the government and that in any event in view of the orders of the assistant commissioner dated 6 - 12 - 1983, the petitioners had to go before the deputy commissioner under sec. 77 of the act for decision on the question as to whether they were hereditary trustees or not. The government dismissed the petitioners application with these observations. The government also refused to set aside the appointment of the fit person and observed that until the petitioners claim for recognition as hereditary trustees under sec. 77 was decided, the fit person should continue. The order of the government proceeds on the basis that the fit person was appointed for managing not only the temple but also the maternity home. It is this order of the government that was questioned in the writ petition.

(5) The learned single judge dismissed the writ petition by holding that the government was right in directing the petitioners to go before the deputy commissioner under sec. 77 of the act. The learned judge observed that the deed of trust was an unregistered one and that it was doubtful whether the petitioners could be treated as hereditary trustees. He further observed that the fit person was appointed in the context of a report by an inspector that there was no proper management of the institution and that the pedda poojari was collecting rents from the tenants and that to avoid misappropriation of funds, the assistant commissioner suggested the appointment of a fit - person. Obviously, these facts were culled out from the counter - affidavit filed by the department. The learned judge also observed that it was not as if the maternity home and the temple were constructed by late shanta bai with her own funds, but that the same were constructed with the funds of several philanthropic persons and the donations granted by the nizam charitable trust etc. He also observed that the maternity home was started on 20 - 11 - 1952 on behalf of the rashtriya mahila samaj, whereas, the unregistered deed was created by shanta bai on 25 - 10 - 1974. The learned judge then observed that even though the said deed described the petitioners as hereditary trustees after shanta bai, still the petitioners could not claim to be so unless they obtained a declaration of their status under sec. 77 of the act. He pointed out that the fit parson was only in temporary management till such a declaration was obtained and that he had already taken charge or; 25 - 11 - 1983 and that this fact was suppressed by the writ petitioners. With these observations, the writ petition was dismissed.

(6) In this appeal, we have heard the learned counsel for the appellants sri t. Muralidhara rao and the learned assistant government pleader,

(7) At the outset, it has to be noted that the very certificate of registration dt. 2 - 4 - 75 issued in favour of late shanta bai by the assistant commissioner of endowments, mahaboobnagar under sec. 38 of the act, has the trust deed appended to it. This trust deed is dated 25 - 10 - 1974 and it shows that smt. Shanta bai constructed the maternity home as founder "with the help of" rashtriya mahila samaj and through benovolent aid from government and other agencies in 1952 at badepalli and also constructed a temple and dedicated to sri dattatreya swamy in the same premises. It is clearly recited that the property wherein the temple and the maternity home are situated are the properties belonging to the founder and out of her own efforts and expenses, she got the buildings constructed both for the maternity home and for the temple. She further stated that she, the founder, was desirous of dedicating the properties for the maternity home and the temple. She also stated that she was appointing herself as the first chairman of the trust board and that her two sons viz. , the writ petitioners, shall also function as hereditary trustees along with her and that one g. Viswanatham and sri b. Kishan rao are to be the non - hereditary trustees. She further stated that during her life time, shs herself shall manage the affairs of the institution as chairman and after her death the above - noted hereditary trustees (the writ patitioners) shall manage the affairs of the institution by rotation. In case of any vacancy due to death or resignation or otharwise of a hereditary trustee his legal heirs shall succeed him as per law of inheritance. The legal heirs of the above hereditary trustees (the writ petitioners) only shall function as hereditary trustees. The succession to chairmanship or management shall vest in the fa nilies of the above two heredtary trustees according to rule of primogeniture, by way of rotation. If any person entitled to succeed is a minor, a guardian should be appointed for the property. The hereditary trustee - chairman should administer the institution and manage the same. Various other details are mentioned in the deed, with which we are not concerned now.

(8) As already staled, this deed was filed before the assistant commissioner of endowments, mahaboobnagar and its contents were accepted as clearly certified in the certificate granted under sec. 38 by the assistant commissioner. No objection was raised on the ground that the trust deed was unregistered or that the property did not vest in the religious or charitable endowments. It will be noted that the maternity home came into being on 22 - 11 - 1952 itself and the temple came into being some time in 1960 and at the time when they were so dedicated, there was no deed executed. Obviously, for such dedication, no deed was necessary inasmuch as there was no question of any transfer inter vivos. As pointed in b k. Mukherjea's hindu law of religious and charitable trusts (tagore law lectures - 3rd edition page : 122) , ''when a pious hindu dedicates a property to a diety by following usual ceremonies, thai could be sufficient to create a trust and no express words of gift either directly by way or

" a trust are necsssary to create a valid endowment; there is no necessity of any document in writing."

the said principles were also stated by the supreme court in dasaratna rami reddy vs. Subba rao (1) air 1957 s c. : 797. In view of the above said facts accepted by the assistant commissioner in the certificate granted on 2 - 4 - 1975, the view taken by the learned single judge that the deed of trust dated 25 - 10 - 74 was unragistsred and there by there is no valid dedication cannot be accepted. When the dedication look plae in respect of the maternity home in 1952 and in respect of the temple in 1960 orally any recital in the subsequent deed of 25 - 10 - 1974 should be understood as superfluous or merely as a declaration of what took place earlier.

(9) We shall now come to the question of succession to the office of the hereditary trusteeship. Admittedly, between 1952 and 1982 for over 20 years, shanta bai and the two writ petitioners were in management as disclosed in the trust deed as also from the particulars recorded under sec. 38 of the act by the commissioner on 2 - 4 - 1975. Nobody questioned the truth or validity of their status as hereditary trustees of the maternity home and the temple. After shanta bai died on 14 - 10 82 it was unfortunate that the two writ petitioners did not take any action under sec. 20 of the act. They perhaps thought that it was not necessary in view of what has contained in paragraph 4 of the said certificate, which reads as under : -

"4) name of the founder if any and the names of the past and present trustees and particulars of the custom, if any, regarding the succession to the office of the hereditary trustee or trustees. Any decision declaring the rights of hereditary trustee should bs mentioned. Ans. Founder : smt. Shantabai, m l. A. The founder executed a trust deed on 25 - 10 - 74. According to this the founder shall function as hereditary chairman during her life time. Founder's two sons viz. , (1) sri doctor ashok kumar and (2) sri subhas talpakar shall function as hereditary trustees along with the founder."

The above said answer was certified by the inspector of endowments to be correct in the particulars attached to the certificate issued under sec. 38.

(10) It will be seen that according to the trust deed, late shanta bai and the two sons were to act as founder - hereditary trustees and late snanta bai was to be the chairman after the death of shanta bai, the two sons were to manage the affairs of the institution by rotation. This is clear from para 2 of the trust deed which reads as follows : -

"2. I hereby constitute and appoint myself as the first chairman of the trust board - cum - hereditnry trustee of the institutions. M v two sons dr. Sri ashok kumar and sri subhas talpalikar shall also function as hereditary trustees of the institutions along with me. During my life time, i shall myself manage the affairs of the institutions as chairman. After my death, the above - noted heriditary trustees m/s. Dr. Shri ashok kumar and sri subhas talpalikar shall manage the affairs oj the institutions by rotation. In case of any vacancy caused due to death or resignation or otherwise of a hereditary trustee (mentioned - above) , his legal heirs shall succeed him as per law of inheritance. The legal heirs of the above hereditary trustees viz. , dr sri ashok kumar and sri subhas talpalikar only shall function as hereditary trustees. .

(11) From the afore - said recitals in the trust deed as well as para 4 of the particulars attached to the certificate issued by the assistant commissioner of endowments on 2 - 4 - 1975 which contains a further certificate of inspector of endowments that the answers are correct, it is clear that during the life time of late shanta bai, there was three hereditary trustees : 1. Late shanta bai, 2. Dr. Sri ashok kumar, and 3. Sri subhash talpalikar, these three were recognised by the asst. Commissioner endowments department (as per the certificate given under sec. 38 of the act) as hereditary trustees simultaneously. If any one of them died, their legal heirs according to the law of succession were to come on record as hereditary trustees. Each of the two sons was to act us chairman by rotation.

(12) We shall next deal with the question of recognition under sec 20 of the act by the commissioner of endowments. Sec. 20 of the act deals with filling of vacancies in the office of hereditary trustees. Sub - clause (1) thereof states :

"where a permanent vacancy occurs in the office of a hereditary trustee of a charitable or religious institution or endowment on account of his becoming subject to any disqualification specified in subsection (1) of sec. 16 or otherwise, the person next entitled to succeed, according to the rule of succession laid down by the founder, or 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 where no such usage or custom exists according to the law of succession for the time being in force shall with the permission of the commissioner. Assume charge of the office of trustee."

(13) The question of appointing a fit person arises only under sec. 20 (4) (a) , which reads as follows :

"where a permanent or temporary vacancy occurs in such office and there is a dispute in regard to the right of succession to the office or where such vacancy cannot be filled up immediately or where a hereditary trustee is a minor and has no guardian fit and willing to act as such or there is a dispute in regard to the person who is entitled to act as guardian or where a hereditary trustee is by reason of unsoundness of mind or other mental or physical defect or infirmity unfit to perform the functions of the trustee, the commissioner in the case of institutions or endowments jncluded in the list published under clause (a) of see 6 and the deputy commissioner in the case of other institutions or endowments may appoint a fit person to perform the functions of the trustee of the institution or endowment until the disability of the hereditary trustee ceases or another hereditary trustee succeeds to the office or for such shorter term, as he may fix."

(14) Section 77 of the act in so far as it is relevant for our purpose reads as follows :

"77. Powers of deputy commissioner to decide certain disputes and matters : - the deputy commissioner having jurisdiction shall have the power, after giving notice in the prescribed manner to the person concerned, to enquire into and decide any dispute as to the question : - (a). (b). (c) whether trusteeship is hereditary or not. (d). (e). (f). (g) whether any office - holder or servant is holding or has held his office hereditarily. (h) whether any office or servie is of a hereditary nature."

(15) From the facts already stated. It will be noted that though the two writ petitioners were accepted as hereditary trustees by the assistant commissioner while granting certificate under s. 38, there does not appear to be any order under sec. 20 (1) by the commissioner permitting them to assume office. It was precisely for that reason that they filed the application under sec. 20 (1) before the commissioner.

(16) Under sec. 77 (c) , the deputy commissioner can be approached only if there is a dispute whether the trusteeship is hereditary or not. Under sec. 77 (g) , he can be approached only if there is a dispute whether a person is holding or held his office hereditarily. When there is no dispute raised in the present case as to the hereditaiy nature of the office or as to whether the petitioners are hereditary trustees or not. S. 77 was clearly not applicable. (v. Rangacharyulu vs. Raja t. Rameswara rao (2) 1983 (2) aplj. 319=1983 (2) alt 408. Even if the assistant commissioner could raise an issue, suo motu, there is no scope for raising any dispute because he had himself given a certificate under s. 38 on 2 - 4 - 1975 accepting the deed of trust dt. 25 - 10 - 1974 and its contents. We are therefore unable to find any justification what - so - ever to drive the petitioners to get a declaration under s. 77 of the act. Even for purposes of appointing a fit person under sec. 20 (4) (a) there must be a dispute and a vacuum created for the interval before a person could obtain a declaration under sec. 77 of the act. If there is no dispute or scope for a dispute, s. 20 (4) (a) is not applicable. The commissioner therefore acted illegally and without jurisdiction in asking the petitioners to obtain a declaration under s. 77 and in appointing a fit person obviously under s. 20 (4) (a).

(17) Under sec. 20 (1) whenever there is a permanent vacancy in the office of a hereditary trustee, and a rule of succession is laid down by the founder, the commissioner is to merely permit the successor to assume office. Here, the deed of trust and the registration certificate granted under sec. 38 provide the rules of succession. Even during the life time of shanta bai, the petitioners were designated as hereditary trustees and after her, they were to be continued as such. One of them is to be chairman by rotation. Hence for applying the provisions of sec. 20 (1) there is absolutely no difficulty.

(18) We, therefore, quash the proceedings of the government dt. 9 - 3 - 1984, as well as the proceedings of the commissioner dated 3 - 9 - 1983 and of the assistant commissioner dated 6 - 12 - 1983 by which they directed the petitioners to obtain a declaration under sec. 77 and by which they appointed a fit person. We direct the commissioner to pass orders under sec. 20 (1) permitting the two petitioners to assume office as hereditary trustees for the maternity home and the sri dattatreyaswami temple in question, and pass such further orders as to chairmanship by rotation as stated in the trust deed dated 25 - 10 - 1974.

(19) The writ appeal is allowed and the order of the learned single judge is set aside and the writ petition is allowed as stated above. There shall be no order as to costs. Advocate's fee - rs. 200/ -.

Dr. Ashok Kumar And ... v. State Of A.P Through...