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PETITIONER: SAMBUDAMURTHI MUDALIAR

       Vs.

RESPONDENT: STATE OF MADRAS AND ANR.

DATE OF JUDGMENT: 15/09/1969

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SHAH, J.C. GROVER, A.N.

CITATION:  1971 AIR 2363            1970 SCR  (2) 424

ACT:     Madras Hindu Religious and Charitable Endowments Act (19 of  1951),  s.  6(9)--Trustee of temple  elected  for  fixed period  by members of community who  established  temple--If hereditary trustee.

HEADNOTE:     The appellant was elected as a trustee of a  temple  for one   year. The temple was rounded two hundred years ago  by the  members of the community and according to the usage  of the  temple,  the trustees were elected for one year,  at  a meeting of the members of the community.     On  the question whether the appellant has a  hereditary trustee,  because he was, under s. 6(9) of the Madras  Hindu Religious and  Charitable Endowments Act, 1951, the ’trustee of  a  religious institution succession to whose  office  is regulated by usage’,     HELD:   The  phrase  ’succession  to  whose  office   is regulated by usage’ would only apply when 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 office of a hereditary trustee  is  in the nature of property.  Succession in relation to  property implies  passing of an interest from one person to  another. [428 C-D]     In the present case, the election to the office was  for a  fixed  period  of one year.  In such a case,  it  is  not possible  to  say  there  is a  succession  to  the  office, because:  (a)  on  the efflux of the period  for  which  one trustee  is  appointed, there is a vacancy  and  another  is elected   to  that  vacancy,  and  (b)  since  there  is   a possibility   of  the  same  trustee  being  reelected,   an impossible legal position arises in which a person could  be a successor of himself. [429 F-H]     In  re Hindu Women’s Right to Property Act, 1941  [1941] F.C.R.  12, Ganesh Chunder Dhur v. Lal Behary, 63 I.A.  448, Bhabatarini  v. Ashalata, 70 I.A. 57, Angurbala  Mullick  v. Debabrata Mullick, [1959] S.C.R. 1125. 1134 and Sital Das v. Sant Ram, A.I.R. 1954 S.C. 606 applied.     Shri  Mahant  Paramananda Das Goswwami  v.  Radhakrishna Das. 51 M.L.J. 258, referred to.

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State  of  Madras v. Ramakrishna, I.L.R. [1957]  Mad.  1084, approved.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1671 of 1966.     Appeal from the judgment and decree dated March 31, 1965 of the Madras High Court in Appeal No. 276 of 1962.     M.K. Ramamurthi, Vineet Kumar, L Ramamurthy and Shyamala Pappu, for the appellant. A.V. Rangam, for the respondents.   425 The Judgment of the Court was delivered by     Ramaswami,  J.   This appeal is brought  by  certificate from  the judgment of the Madras High Court dated March  31, 1965 in A.S. No. 276 of 1962.     The appellant ’brought the suit in O.S. No. 3 of 1961 in the  Court  of Subordinate Judge, Nagapattinam  for  setting aside  the order dated May 10, 1960 of respondent No. 1  the Commissioner  of Hindu Religious and Charitable  Endowments, Madras  who  had affirmed earlier the order  of  the  second respondent,  the  Deputy  Commissioner,  holding  that   the trusteeship  of the Kumaran Koil in Manjakollai village  was not hereditary.   The appellant was elected as a trustee  by the Sengunatha Mudaliars of Manjakollai village at a meeting held  on  June  27, 1957.  According to  the  appellant  the temple  was rounded two hundred years ago by the members  of his  community and since then the management of  the  temple and  is  affairs was always vested in the community  of  the Sengunatha  Mudaliars and no person other than  the  elected trustee had at any time the right of management and  control of  the  temple.   The appellant said that  the  temple  was declared  as  an "exempted" temple under the  provisions  of Madras  Act 1 of 1925.  The case of the appellant  was  that the  trusteeship  of  the  temple  was  "hereditary".    The respondents, however, took a different view and proceeded on the  basis  that  trusteeship of the Kumaran  Koil  was  not hereditary.   The Subordinate Judge held that the  appellant was  a  hereditary trustee and the suit was  not  barred  by limitation.   The respondents took the matter in  appeal  to the Madras High Court which by its judgment dated March  31, 1965  allowed the appeal and set aside the judgment  of  the Subordinate Judge Nagapattinam. Section 6, sub-s. (9) of Madras Act 19 of 1951 states:                        "In   this  Act,  unless   there   is               anything repugnant in               the subject or context--                   (9) ’hereditary trustee’ means 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;" This  Act has been substituted by Madras Act 22 of 1959  but the definition of the trustee is identical in both the Acts.     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 three types of  cases: (1)  succession  to the office of trusteeship  devolving  by hereditary right; (2) succession 426 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

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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 Sangunatha Mudaliar Community  and  so  the appellant must be held to be a trustee within the meaning of s.  6(9)  of Act 19 of 1951.  In our opinion,  there  is  no warrant  for this argument. The phrase "regulated by  usage" in  s.  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, 1941  (1). 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 Chunder Dhur  v.  Lal  Behary(2)  and Bhabatarini v. Ashalata(3). Ordinarily a shebaitship or  the office of dharmakartha 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(4) delivering the judgment of this  Court observed:                   "Unless   therefore,   the   founder   has               disposed of the shebaitship in any  particular               manner--and  this  right  of  disposition   is               inherent in the founder--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(5) the law  was taken as wellsettled 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 (1) [1941] F.C.R. 2. (2) 63 I. A. 448. (3) 70 I.A. 57. (4) [1959] S.C.R. 1r2,5,  (5) A.LR. 1954 S.C. 606. 427 matters of succession to mahantship was that the assembly of bairagis  and  worshippets  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 worshippets. In Sri Mahant  Paramanda  Das

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Goswami  v. Radhakrishna Das(1) the Madras High  Court  took the  view  that  where succession to the  mahantship  is  by nomination by the holder in office, it was 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.  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 s. 6(9) of the Act would include even such cases.     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 s. 6(9) of the Act.   It is not possible to say that there is a  succession of As 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 reelected  because  a  retiring trustee  is eligible for reelection.  The possibility  of  A being  the successor    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  revolution of title  to  property               under the law of descent and distribution.                (1) 51 M.L.J. 258.               428                   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, estate, 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(1).     For  these  reasons we hold that this appeal  fails  and must be dismissed with costs. V.P.S. Appeal dismissed. (1)I.L.R. [1957] Mad. 1084-. 429