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CASE NO.: Appeal (civil)  5093 of 1998

PETITIONER: Commissioner, Hindu Religious,and Charitable Endowment(Admn.), Madras & Anr.

RESPONDENT: Vedantha Sthapna Sabha   

DATE OF JUDGMENT: 07/05/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       A Division Bench of the Madras High Court by the  impugned judgment held that the respondent was entitled  to hold office of trusteeship in Sri Lakshmi Hayavadhana  Perumal Temple in Nanganallur, Saidaret Taluk as  hereditary trustee.  The Commissioner of Hindu Religious  and Charitable Endowment and the Deputy Commissioner,  the appellants herein question correctness of the  judgment.   

Background facts giving rise to the present appeal  need to be noted in some detail.

Respondent-Sabha filed an application under Section  63(b) of the Tamil Nadu Hindu Religious and Charitable  Endowment Act, 1959 (in short ’Act’), before the Deputy  Commissioner (appellant no.2 in the present appeal) for  declaration that the Sabha is hereditary trustee of the  religious institution. The application was dismissed by  the Deputy Commissioner. Since the dismissal was upheld  by the Commissioner (the appellant no.1 herein) against  the rejection of the application, the respondent as  plaintiff filed a statutory suit OS No.257/1981 before  Subordinate Judge, Chengleput. Present appellants as   defendants took the stand that the suit temple is a  public temple constructed out of the collections  including collections from the members of the Sabha and  the grant of funds from the Government, that it is not  for the benefit of Sabha members only but for the  benefit of the Hindu public at large, and thus the  temple is one covered under Section 6(20) of the Act.  The Trial Court rejected the claim of the plaintiff by  holding that it is not entitled to be declared as  hereditary trustee of the suit temple. At the same time  since the Sabha had initiated and taken all efforts to  construct the temple and manage it in the interest of  general worshipping public, it would be appropriate to  have one or more of the representatives of the Sabha, in  the Board of Trustees as the authorities may deem fit.     Aggrieved by that the plaintiff preferred an appeal (AS  No. 240/84) which was also dismissed by a learned Single  Judge of the Madras High Court. The learned Judge also  highlighted the difference inherently inbuilt in the  definition of ’hereditary trustee’ in Section 6(11) and  ’trustee’ in Section 6(22) of the Act. Letters Patent  Appeal was filed by the Sabha in L.P.A. No. 275/1995

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which was allowed and the judgment therein is the  subject matter of challenge in the present appeal. The  Division Bench in the High Court was of the view that  the founder being the Sabha, the entire administration  of the temple is vested in the Sabha only consisting of  its office bearers and they alone are entitled to  administer the temple and its properties.                         Case of the plaintiff in a nutshell is as follows:

       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  Tamil Nadu Societies Registration Act, 1975 (in short  the ’Societies Act’). The objects of the Sabha are to  promote spiritual pursuits of Vashistadvaitha philosophy  as propounded by Sri Bhagavath Ramanuja and Sri Vedantha  Desika, to conduct discourses and arrange for lectures,  to conduct classes in Vadas, Upanishads, Divyaprabandas  and Stothrapathas 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 publish magazines, journals  and other literatures; to establish and maintain  libraries and reading rooms and to organise seminars,  group discussions and conferences and raise charities,  fund for the purpose of giving charities, etc. 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 appellants as Government  grant.  The construction was commenced in the year 1968  and completed in the year 1972. Kumbabishegam 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.   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 founder-cum- hereditary trustee. The Sabha is represented by its  Secretary. A petition was filed under Section 63(b) of  the Act before the 2nd appellant for a declaration that  the respondent is the hereditary trustee of the  institution. That application was dismissed by the 2nd

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appellant, in O.A. No.69 of 1977. The evidence let in  and the materials placed before the 2nd appellant have  been analysed and considered elaborately to arrive at  the finding that the temple has been constructed and is  maintained thereafter also from funds mobilised from  public and, therefore, it is meant for Hindu worshipping  public as well. As against such dismissal, the  respondent filed A.P. No. 174 of 1978 before the 1st  appellant under Section 69(1) of the Act, which was also  dismissed by the 1st appellant. The reasonings  contained in those orders which are adopted by the  appellants for coming to the conclusion that the  respondent cannot be the hereditary trustee are said to  be baseless. The Secretary of the Sabha elected  periodically, it is asserted, is entitled to hold the  office of trusteeship in respect of the temple in  question. The trusteeship accordingly is claimed to be  only a hereditary one.  Hence the suit.

       The suit was resisted by the appellants as  defendants. According to them, the suit temple is a  public temple constructed out of public collections  including from the members of the respondent 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  respondent 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  Kumbabishegam and the day-to-day expenses thereafter are  met out of public contributions as well as receipts from  Hundial installed in the temple.

       According to the appellants, the allegation of the  respondent that the temple does not own any property is  not correct.  Public at large, other than the members of  the respondent Sabha, have contributed liberally for the  construction and for day-to-day expenses after the  Kumbahishegam.  It is not the personal property of the  members of the Sabha.  The respondent has no right to be  declared as the hereditary trustee.  There is a Hundial  in the suit temple and the public contributes liberally  in it. The petition filed by the respondent under  Section 63(b) of the Act has been duly considered by the  2nd appellant and was rightly dismissed by him, which  was confirmed on appeal by the 1st appellant.  The  reasonings in both the orders are not liable to be set  aside.  The respondent 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 exclusively by the respondent. The  Secretary of the respondent Sabha has no right to be  appointed as its hereditary trustee and the office of  trusteeship cannot be claimed to be an hereditary one.   There is no cause of action to file the suit and the  cause of action claimed is false.  There is a provision  in the bye-laws of the respondent 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

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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 was liable to be  dismissed with costs.                            

The Trial Court framed the following issues:

"1.     Whether the order of the Ist  defendant is liable to be set aside?

2.      To what relief?"

It dismissed the suit observing that taking into  consideration the efforts taken by the members of the  Sabha in constructing 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 said temple. It is for the  defendants to decide as to which one or more of the  members of the Sabha can be appointed as trustee of the  said temple.  

       Aggrieved by the judgment and decree of the trial  Court, plaintiff (respondent No. 1 herein) preferred an  appeal before the High Court and learned Single Judge  dismissed the appeal holding that though the institution  was founded by the appellant-Sabha which is a body of  persons, it was from collections and contributions from  public also and that the same is meant for all Hindu  worshipping public, and that there was no acceptable  ground for declaring it as hereditary trustee. The  Division Bench of the High Court by the impugned  judgment held in view of the admitted position that  Sabha was founder of the Temple, the only other question  which needed to be answered was whether a body of  persons/society or office bearers of the Sabha can be  recognised as hereditary trustee or a trustee of the  temple. The aforesaid question was answered in the  affirmative with reference to the fact that the entire  administration of the temple vis-‘-vis of the Sabha  which consists of office bearers and members of the  Sabha/society alone are entitled to administer the  temple and properties which are also vested with them  either jointly as trustees or co-trustees. Setting aside  the judgment of the present appellant No.2 as confirmed  of the present appellant No.1, it was declared that the  respondent-plaintiff was entitled to hold office of  trusteeship as its hereditary trustee.  

       In support of the appeal, Mr. K. Ramamoorthy,  learned senior counsel submitted that the principles  governing the appointment of hereditary trustee were not  kept in view. Office of the hereditary trustee is in the  nature of property and where by efflux of time vacancy  arose there can be no succession and that the principle  of heredity will not arise. The common feature in  hereditary trusteeship is succession by hereditary right  or where the succession is regulated by usage or is  specifically provided for by the founder, as long as  such provision of scheme is in force. Undisputed

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position is that members of the public also contributed  for construction of the temple besides Government grant  and there being no details as to how much was  contributed by the founder and how much by the public it  was not permissible to hold that there was scope for the  Sabha being the hereditary trustee. The finding recorded  that money was collected for construction of the temple  and that it was a public temple was not disturbed.  Whether a corporate body or a group of persons can be  appointed as hereditary trustee is really of no  consequence in the factual background of the present  case, and that, therefore, the Division Bench was not  right in allowing the claim of the respondent, as prayed  for.                    Clause (11) of Section 6 of the Act defining  "hereditary trustee" has three limbs. Sections 41 and  42 of the Societies Act have great relevance on the  question of hereditary trusteeship. Bye-law (23) also  throws considerable light on the controversy. There is  no question of any usage being pressed into service,  when the temple is constructed first. The society itself  was formed in 1967 and therefore the question of any  long usage being in existence does not arise.

       In response, learned counsel for the respondent  submitted that merely because contributions had been  received from the public, that does not make  contributors co-founders. Unnecessary stress was laid by  learned Single Judge on the consequences of winding up  of the Sabha. The founder is known as a Sabha and the  management is with the Sabha’s members themselves. There  is no dispute about this aspect. There was also no  hindrance or interference by the public in the  management and administration of the temple. The length  of management commensurate from the time of its  construction is itself suggestive of long usage.  Trusteeship is linked with management and there being no  legal bar on a body becoming a trustee the Division  Bench was correct in holding that the Sabha was a  hereditary trustee. If one looks at Clause (22) of  Section 6, the Sabha as a whole is a trustee and with  reference to Clause (11) of Section 6 it can be said  that the Sabha is a hereditary trustee. The founders  automatically were vested with trusteeship. It is  nobody’s case that it was an elected body, and  therefore, the contributors and the Government cannot be  said to have status as its founders. Sabha is not a  corporate body but is a compendium of names. It is not  the case of the respondent that any particular member  was a trustee. It was the compendium which was the  trustee acting through its Secretary and, therefore,  rightly the Division Bench held that present respondent  No.1 was a hereditary trustee.  

       Section 6 of the Act which is the pivotal provision  so far as relevant reads as follows:

"Section 6(11)- ’hereditary trustee’  means 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 the  founder, so long as such scheme of

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succession is in force.    

6(20)-’temple’ means a place by whatever  designation known used as a place of  public religious worship, and dedicated  to, or for the benefit of, or used as of  right by, the Hindu community or of any  section thereof, as a place of public  religious worship.

6(22) ’Trustee’ means any person or body  by whatever designation known in whom or  in which the administration of a  religious institution is vested, and  includes any person or body who or which  is liable as if such person or body were  a trustee."     

On consideration of the rival submissions, we feel  that the approach of the Division Bench of the High  Court was on erroneous premises and the conclusions  appear to have been arrived at overlooking certain vital  and basic underlying factors, the character of the  temple as well as operation and impact of the provisions  of the Act on the temple and the claims made in relation  thereto. The basic question that arose was not whether a  body of persons or society or office bearers of a Sabha  can be recognised as hereditary trustee or a trustee of  the temple. What was needed to be adjudicated was  whether on the facts as also the prevailing and  governing position of law, particularly the Act in  question, the claim for ’hereditary trustee’ was  established or could be sustained.         A bare reading of definition of "hereditary  trustee" brings into focus three important aspects; i.e.  first, a trustee of a religious institution the  succession to which is devolved by hereditary right; the  second category is that succession can be regulated by  usage and the third category is where succession  relating to the office of trustee is specifically  provided for by the founder and that too so long as the  scheme of such succession is in force.  In contrast to  the criteria engrafted in Section 6(22), the definition  in Section 6(11) lays special and specific emphasis on  the succession to the office of trustee of a religious  institution devolving by anyone of the three methods or  manner envisaged therein. So far as the case on hand is  concerned, the statutory authorities specially  constituted under the Act have held the temple to be for  all the worshipping Hindu public and not confined to the  members of the Sabha only having regard to the manner in  which funds were collected and the manner in which the  public invitations and declarations have been made and  day-to-day administration of the temple is being carried  on from inception.  Though there has been an application  for declaration of the office of trustee of the  religious institution to be an hereditary one, no  application under Section 63(a) for a declaration as to  whether the temple in question is a religious  institution used as a place of public religious worship  and dedicated to or for the benefit of or used as of  right by the Hindu community or section thereof was  filed. Even after, specific findings by the statutory  authorities as to the character of the institution  conspicuous omission in this regard disentitled the

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respondent-Sabha to incidentally or vaguely project that  it is for the members of the Sabha only.  Once it is a  religious institution within the meaning of the Act, the  provisions of the Act have full force and effect and the  claim of the nature, unless substantiated as provided  for under the statute cannot be countenanced on certain  assertions made which was besides such statutory  provisions. This Court highlighted this aspect of the  matter in the decision reported in D. Srinivasan v.  Commissioner and Ors. (2000 (3) SCC 548).              

The Act applies to all Hindu Public Religious  Institutions and Endowments.  ’Religious Institution’,  as defined at the relevant point of time meant a math,  temple or specific endowment and ’temple’ meant a place  by whatever designation known, used as a place of public  religious worship and dedicated to or for the benefit of  or used as of right by the Hindu community or of any  section thereof, as a place of public religious worship.   ’Trustee’ meant any person or body by whatever  designation known in whom or in which the administration  of a religious institution is vested and includes any  person or body who or which is liable as if such person  or body were a trustee. In respect of a religious  institution, which has no hereditary trustee, the  competent authority concerned depending upon the class  of temple has been empowered under the provisions of the  Act to constitute also a Board of Trustees. ’Hereditary  trustee’ has been defined 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 the founder, so long  such schemes of succession is in force. ’Non-hereditary  trustee’ has also been defined to mean a trustee who is  not a hereditary trustee. Consequently, the office of  trustee, hereditary or non-hereditary though may have an  incumbent who occupies or holds the office of  trusteeship at a particular point of time or for a  period of duration it is only the manner or method by  which the incumbent concerned comes to occupy it that it  is decisive of the nature and character of it as to  whether it is hereditary or non-hereditary.

       Prior to the 1959 Act, The Madras Hindu Religious  and Charitable Endowments Act 1951, occupied the field  from 1.10.1951 and came to be replaced by the 1959 Act.   The scope of meaning of the terminology ’hereditary  trustee’ under the 1951 Act came up for consideration of  the Madras High Court as well as this Court.  In ILR  1957 Mad. 1084=AIR 1957 Mad. 758 State of Madras v.  Ramakrishna Naidu, a Division Bench of the Madras High  Court had an occasion to exhaustively deal with the  position in the context of an ancient temple known as  Sri Parthasarathy Swami Temple, in Triplicame in Madras  city.  The administration of the temple at the relevant  point of time was in accordance with a scheme framed by  the Madras High Court, which inter alia provided that  the management and affairs of the temple shall be  carried on by a body of dharmakartas under the  supervision and control of a Board of Supervision.  The  dharmakartas were to be three in number, of whom one  shall be a Brahmin, one an Arya Vysia (Komatti) and one  a non-brahmin not Arya Vysia and the dharmakartas shall  hold office for a period of five years from the date of

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his appointment, the retiring dharmakartas being also  eligible for re-appointment, otherwise if so qualified.   The said dharmakartas shall be elected by person whose  names are included on the date of election in the list  of voters maintained at the temple, in terms of the  qualifications prescribed for being so enrolled as  voters and elaborate rules for the conduct of elections  have been also laid down in the scheme.  When the period  of office of one of the dharmakartas by name Rao Bahadur  v. Ranganathan Chetty expired by efflux of time after  the commencement of the 1951 Act, though the vacancy had  to be under the scheme, filled up by election, the  Commissioner, Hindu Religious And Charitable Endowments,  passed an order in exercise of his powers under Section  39(i) of the 1951 Act, appointing one C. Subramaniam  Chetty as Trustee in the vacancy caused by the expiry of  the term of trustee of Sri V. Ranganathan Chetty.  This  order came to be challenged in the High Court and a  learned Single Judge sustained the claim of challenge on  the ground that Sections 39 and 42 had no application,  as the trustees of the temple were hereditary trustees.   Those who challenged the appointment were not either the  outgoing trustee- V. Ranaganathan Chetty or his heirs or  successors but two thengalai worshippers interested in  the said temple.  If the trustees of the temple are  hereditary trustees, Sections 39 and 42 had no  application and it is in that context the question that  was adverted to for consideration was \026 whether it is an  institution, which has a hereditary trustee or  hereditary trustees. After adverting to the definition  of ’hereditary trustee’ in Section 6(9) of the 1951 Act,  which defined the same to mean the trustee of a  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.  The Division  Bench specifically noticed the fact that the claim of  those who challenged the order of Commissioner was on  the ground that the office of dharmakartas was a  ’hereditary’ one and it was not on the basis that their  office devolved by succession or because succession to  their office has been specifically provided for by the  founder, but that the succession to the office "is  regulated by usage’, which found favour of acceptance  with the learned Single Judge.  The stand taken for the  State before the Division Bench was that, the phrase  ’regulated by usage’ must be read with the expression,  "succession to whose office" and when so read that part  of the definition would only apply where the ordinary  rules of succession under the Hindu Law are modified by  usage and succession has to be determined in accordance  with the modified rules. It was observed that though  several schemes framed took notice of the usage and  embodied it in the scheme framed with such modifications  as the court deemed fit, it cannot be said that the  succession continued to be governed by usage when as a  matter of fact it was governed by the provisions of the  scheme and not by usage any longer.

       Proceeding further, the Division Bench construed  the scope and purport of the definition ’hereditary  trustee’, placing strong reliance upon the decision of  this Court reported in 1951 SCR 1125 (Angurbala Mullick  v. Debabrata Mullick) and AIR 1954 SC 606 (Sital Das v.  Sant Ram), and held therein as follows:

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"In the case of mutts whose heads are often  celibates and sometimes sanyasins, special  rules of succession obtain by custom and  usage.  In Sital Das vs Sant Ram, the law is  taken as well-settled that succession to  mahantship of a mutt or religious institution  is regulated by custom or usage of the  particular institution except where the rule  of succession is laid down by the founder  himself who created the endowment. In that  case the custom in matters of succession to  mahantship was that the assembly of bairagis  and worshippers of the temple appointed the  successor; but the appointment had to be made  from the disciples of the deceased mahant if  he left any, and failing disciples, any one of  his spiritual kindred.  Such a succession was  described as not hereditary in the sense that  on the death of an existing mahant, his chela  succeeds to the office as a matter of course,  because the successor acquires a right only by  appointment and the authority to appoint is  vested in the assembly of the bairagis and the  worshippers.  In Sri Mahant Paramananda Das  Goswami vs Radhakrishna Das a Division Bench  took the view that where succession to the  mahantship is by nomination by the holder in  office, it is not a hereditary succession.   Venkatasubba Rao, J., as said:  

"If the successor owes his title to  nomination or appointment, that is, his  succession depends on the volition of  the last incumbent and does not rest  upon independent title, I am inclined to  the view that the office cannot be said  to be hereditary."

Krishnan, J., the other learned Judge, came to  the same conclusion on the following  reasoning:

"Where succession is by nomination by  the holder in office of his successor it  seems to me impossible to contend that  it is a hereditary succession.   Hereditary succession is succession by  the heir to the deceased under the law,  the office must be transmitted to the  successor according to some definite  rules of descent which by their own  force designate the person to succeed.   There need be no blood relationship  between the deceased and his successor  but the right of the latter should not  depend upon the choice of any  individual".

The present definition in Section 6, clause  (9), would, however, comprise even such cases.

       It appears to us to be singularly  inappropriate to say that there is a  succession of A’s office to another when on

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the efflux of the period for which A was  appointed there is a vacancy and B is elected  to that vacancy."

       In AIR 1971 SC 2363 = 1970(1) SCC 4 (Sambudamurthi  Mudaliar vs. The State of Madras and another), this  Court had an occasion to construe Section 6 (9) and the  scope of the terminology ’hereditary trustee’ and held  as follows:

"3. The question to be considered in this  appeal is whether the appellant is a  hereditary trustee within the meaning of the  section.  The definition includes the three  types of cases: (1) succession to the office  of trusteeship devolving by hereditary right;  (2) succession to such office being regulated  by usage; and (3) succession being  specifically provided for by the founder on  condition that the scheme of such succession  is still in force.  It is not the case of the  appellant that the trustees of the temple of  the Kumaran Koil are hereditary trustees  because their office devolves by hereditary  right or because succession to that office is  specifically provided for by the founder.  The  contention on behalf of the appellant is that  the succession is "regulated by usage".  It  was said that according to the usage of the  temple the trustees were elected for a period  of one year each at a meeting of the members  of the Sengunatha Mudaliar Community and so  the appellant must be held to be a trustee  within the meaning of Section 6(9) of the Act  19 of 1951.  In our opinion, there is no  warrant for this argument.  The phrase  "regulated by usage" in Section 6 (9) of the  Act must be construed along with the phrase  "succession to this office" and when so  construed that part of the definition would  only apply where the ordinary rules of  succession under the Hindu Law are modified by  usage and succession has to be determined in  accordance with the modified rules.  The word  "succession" in relation to property and  rights and interests in property generally  implies "Passing of an interest from one  person to another" (vide in Re. Hindu Women’s  Right to Property Act, 1937, (1941 FCR 12) =  (AIR 1941 FC 72).  It is now well established  that the office of a hereditary trustee is in  the nature of property. This is so whether the  trustee has a beneficial interest of some sort  or not.  (see Ganesh Chander Dhur v. Lal  Behari, 63 Ind App 448 = (AIR 1936 PC 318) and  Bhabatatini v. Ashalata, 70 Ind App 57 = (AIR  1943 PC 89).  Ordinarily a shebaitship or the  office of dharamakarta is vested in the heirs  of the founder unless the founder has laid  down a special scheme of succession or except  when usage or custom to the contrary is proved  to exist.  Mukherjea J., in Angurbala Mullick  v Debabrata Mullick, 1951 SCR 1125 = (AIR 1951  SC 293) delivering the judgment of this Court

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observed:

"Unless, therefore the founder  has disposed of the shebaitship in  any particular manner \026 and this  right of disposition is inherent in  the founder \026 or except when usage  or custom of a different nature is  proved to exist, shebaitship like  any other species of heritable  property follows the line of  inheritance from the founder."

In the case of mutts, whose heads are often  celibates and sometimes sanyasins, special  rules of succession obtain by custom and  usage.  In Sital Das v. Sant Ram, AIR 1954 SC  606 the law was taken as well settled that  succession to mahantship of a mutt or  religious institution is regulated by custom  or usage of the particular institution except  where the rule of succession is laid down by  the founder himself who created the endowment.   In that case the custom in matters of  succession to mahantship was that the assembly  of bairagis and worshippers of the temple  appointed the successor; but the appointment  had to be made from the disciples of the  deceased mahant if he left any, and failing  disciples, any one of his spiritual kindred.   Such a succession was described as not  hereditary in the sense that on the death of  an existing mahant, his chela does not succeed  to the office as a matter of course, because  the successor acquires a right only by  appointment and the authority to appoint is  vested in the assembly of the bairagis and the  worshippers.  In Sri Mahant Paramananda Das  Goswami v. Radha Krishna Das, 51 MLJ 258 =  (AIR 1926 Mad 1012), the Madras High Court  took the view that where succession to the  Mahantship is by nomination by the holder in  office, it is not a hereditary succession.  In  that case Venkatasubba Rao, J., said:

       "If the successor owes his title to  nomination or appointment, that is, his  succession depends on the volition of  the last incumbent and does not rest  upon independent title, I am inclined to  the view that the office cannot be said  to be hereditary."

Krishnan, J., stated as follows:

       "Where succession is by nomination  by the holder in office of his successor  it seems to be impossible to contend  that it is a hereditary succession.   Hereditary succession is succession by  the heir to the deceased under the law,  the office must be transmitted to the  successor according to some definite  rules of descent which by their own  force designate the person to succeed.  

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There need be no blood relationship  between the deceased and his successor  but the right of the latter should not  depend upon the choice of any  individual."

It is true that the artificial definition of  hereditary trustee in Section 6 (9) of the Act  would include even such cases.

4. But the election to the office of trustee  in the present case is for a fixed period of  one year and not for life.  It is, therefore,  difficult to hold that the office of the  appellant is hereditary within the meaning of  Section 6 (9) of the Act.  It is not possible  to say that there is a succession of A’s  office to another when on the efflux of the  period for which A was appointed, there is a  vacancy and B is elected to that vacancy.  It  is quite possible that for that vacancy A  himself might be re-elected because a retiring  trustee is eligible for re-election.  The  possibility of A being the successor of A  himself is not merely an anomaly, it is an  impossible legal position.  No man can succeed  to his own office.  In Black’s Law Dictionary  the word ’succession’ is defined as follows:

       "The devolution of title to  property under the law of descent  and distribution.

       The right by which one set of  men may, by succeeding another set,  acquire a property in all the goods,  movables, and other chattels of a  corporation.

       The fact of the transmission of  the rights, estates, obligations,  and charges of a deceased person to  his heir or heirs."

The view we have taken is borne out by the  reasoning of the Madras High Court in State of  Madras v. Ramakrishna, ILR (1957) Mad 1084 =  (AIR 1957 Mad 758)."

       Thus, it could be seen that even in S. Mudaliar’s  case (supra), the challenge was by a person who was  appointed only for one year and not for life and that  his claim before the Court, which fell for consideration  is not that he himself was a hereditary trustee but that  the trusteeship of the temple was ’hereditary’ in  nature.  This Court also approved the ratio of the  decision of the Division Bench of the Madras High Court  in Ramakrishna Naidu’s case (supra).  Consequently, the  distinction sought to be made of the decision of this  Court by a Division Bench of the Madras High Court which  decided the case in 1975(2) M.L.J. 178 - A.N. Ramaswamy  Iyer and Ors. v. The Commissioner H.R.& C.E. and  another, particularly para 11 is without any substance  or really any difference to so distinguish.  The said  decision cannot be considered to lay down a correct

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proposition of law, in the teeth of the specific  declaration of the legal position made by this Court in  S. Mudaliar’s case (supra). As long as there is no  provision by any founder for devolution of the office of  trusteeship by succession hereditarily, in or by anyone  of the mode or method envisaged it is futile to claim  that the temple has hereditary trustee or that the  management or administration of the affairs of the  temple is carried on by a hereditary trustee or that the  respondent is entitled for a declaration that it is the  hereditary trustee of the temple in question. In this  case no such provision has shown or found to exist, and  as a matter of fact the learned Single Judge in the High  Court found such provision to be conspicuously absent.

       In Dr. Srinivasan’s case (supra), this court  adverted to the definition of ’hereditary trustee’ under  Section 9 (6) of the Madras Hindu Religious Endowments  Act, 1926 (Act 2 of 1927) as also Section 6 (9) of the  1951 Act and Section 6 (11) of the 1959 Act and taking  note of the change brought about by the 1951 and 1959  Acts respectively, it was held that, after the  commencement of the 1951 Act itself the definition of  ’hereditary trustee’ contained in Section 6 (9) therein  did not recognize a person who was nominated by other  trustees as hereditary trustees and that the same  position prevails under Section 6 (11) of the 1959 Act,  which also does not describe a person nominated by the  existing board to be called a hereditary trustee. It is  useful to refer to the observation made therein, as  hereunder:

"24. We, therefore, hold that if any trustee  has been nominated subsequent to the  commencement of the 1951 Act by the Board of  Trustees who were in office prior to the 1951  Act or by their nominees then such persons  could not be called "hereditary trustees"  within the meaning of sub-section (6) of  Section 9 of the 1951 Act.  Similarly, if the  persons who were themselves not hereditary  trustees after the 1951 Act, either by  themselves or along with other hereditary  trustees after 1951, nominated trustees, then  such trustees would not be hereditary  trustees.  The position is no different after  the 1959 Act.

26. This does not, however, mean that the  right conferred on the Board of Trustees,  whenever a vacancy occurs in the five places  created by Venkatarangaiah, is done away with  altogether by the 1951 Act or by the post-1951  Acts.  It will be open to the nominated five  trustees in office, from time to time to  nominate fresh trustees whenever there is any  vacancy in these five offices of trustees.   Such persons can be trustees but cannot be  called "hereditary trustees".  They will have  to be described as "non-hereditary trustees".   What their rights are will necessarily have to  be governed by the provisions of the statute.   We need not go into the question as to their  rights. Suffice to say that they are not  "hereditary trustees"."

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       The authority to nominate or appoint or specify  periodically for a specified period even by a body which  had authority to do so would not make such office a  hereditary one so as to call such trustees ’hereditary  trustees’ as defined under the 1951 or 1959 Acts.  It is  the definite rules of succession and devolution by any  one of the three modes of succession envisaged in  Section 6(11) that could alone enable a claim of  hereditary trustee to be legitimately made.

       Having regard to the conclusions arrived at supra,  the submissions made on the basis of the finding  recorded that the Sabha was the founder of the temple in  question or that as founder it had every right to  provide for the administration of the affairs and  management of the temple and its property, if any, and  for future management as well, pales into insignificance  and really does not call for our decision to determine  the question as to whether the Sabha could get itself  declared as ‘Hereditary Trustee’ under the provisions of  the Act.  Similarly, the question as to whether a body  could be a Trustee or constitute Board of Trustees also  is beside the point.  Even, as a body \026 whether it could  claim to be a trustee or not, so far as in the case on  hand is concerned, it cannot, as held by us, claim to be  hereditary trustee.             No doubt, normally every donor contributing at the  time of foundation of a Trust cannot claim to become a  founder of the Trust, except in cases where all the  contributors of the Trust Fund become the founders of  the Trust itself inasmuch as a decision on the question  as to whether a person can be a joint founder, cannot be  made to rest merely upon the factum of contribution  alone unless the surrounding and attendant circumstances  proved in the case and subsequent conduct of parties  warrant such a finding.   All these issues also seem to  be beside the real issue as to the hereditary nature of  the office claimed \026 which by no means could be  countenanced in law, in favour of the respondent-Sabha.    

The analysis undertaken by learned Single Judge  seems to be correct. As noted above, Sabha itself came  into existence a few years before the declaration was  sought for by filing a suit by the present respondent.  The concept of long continuance and passage of time is  inbuilt in the expression ’usage’ and the factual  position also in the present case does not enable the  Sabha to establish application of the usage concept.  That being so, the judgment of Division Bench of the  High Court is set aside and that of the learned Single  Judge is restored. The appeal is allowed with no order  as to costs.