Dr. Jayaram Alva Vs. Commissioner for Hindu Religious Institutions and Charitable Endowments, Bangalore and Others - Court Judgment

(Prayer: This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to call for records and to set aside the impugned order dated 12.5.2011 passed by the first respondent and produced hereto as Annexure-A.)

1. Heard the learned counsel for the parties.

2. The brief facts as stated are, that Shri Durga Parameshwari Temple, Kateel, Mangalore Taluk, Dakshina Kannada District is an ancient temple. It is a temple notified as a religious endowment under the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 (hereinafter referred to as 'the 1997 Act' for brevity).

It is stated that the temple has been managed and administered by an ancient noble family, Devashya. It is stated that the said Devashya family owned large tracts of land, comprised in four villages, including that of Kondemoola. It is said that the family also owned large Guthu houses, of which Kodethur Guthu was one, situated at Mennabettu village. It is claimed that with the ownership of Kodethur Guthu, the house, the title and all privileges pertaining to it was and is vested with the petitioner's family. And that all privileges and entitlements pertaining to the rituals and customs at the temple for both Devashya and Kodethur Guthu are also enjoyed by the same family.

The petitioner asserts that he is a member of Devashya- Kodethur Guthu family and that the hereditary trusteeship of the Kateel Durgaparameshwari temple was always held by the same family members. The petitioner has named Kunjappa Shetty, his nephew Deju Shetty, Rama Shetty, Narna Chowta - whose name it is claimed finds place in the 1900 Adangal, published by the Government, as 'Adaltha Muktheshwara' and Kanthanna Shetty, who is said to have held the post between 1925 - 1928.

It is alleged that during the period 1925-28 Deju Shetty had assigned the job of looking after the affairs of the temple to his brother-in-law Koti Shetty, son of Kunjappa Shetty and Poovakka Shetty of Puthige family, who was said to be the great grand mother of the second respondent. It is said that Poovakka was from the Puthige Guthu, and hence her progeny did not belong to Kodethur Guthu family. It is stated that the petitioner's family had however, allowed Kunjappa Shetty's children to look after the affairs of the temple on behalf of the Kodethur Guthu family. It is alleged that the said Kunjappa's children and grand children, though belonging to the Puthige family, started appropriating the name of Kodethur Guthu. It is alleged that the second respondent's family members were actually chalageni tenants of Devashya. And in order to provide them a place of residence, the Kodethur Guthu house was leased to them on a usufructuary mortgage, this had further enabled them to lay claim to the name of Kodethur Guthu. The mortgage however, is said to have been redeemed.

The petitioner is said to belong to the Bunt community, which follows a matrilineal system in respect of family lineage and inheritance. It is stated that the second respondent's family members had falsely branded themselves as belonging to the Kodethur Guthu family and had held the temple trusteeship for a period of time, on account of the domestic and personal problems of the petitioners' family members. The petitioners had unwittingly allowed them to carry on the management of the affairs of the temple.

It is claimed that charges of mismanagement of the affairs of the temple had come to a head during the tenure of one Dayananda Shetty in the trusteeship of the temple, who is said to have belonged to the Puthige Guthu family and a relative of the second respondent. It is alleged that in view of the mis-management by the second respondent's predecessors, the Deputy Commissioner, Hindu Religious and Charitable Endowments, Mangalore is said to have recommended to the first respondent to appoint an administrator to the temple. By an Order dated 25.4.2000, an administrator was said to have been appointed to the temple and the temple was being administered through the said authority, till the date of the petition.

It is stated that on the death of Dayananda Shetty in the year 2007, the petitioner's family is said to have resolved to stake their claim to the hereditary trusteeship of the temple and to curtail the Puthige family from continuing to misrepresent their lineage, while also mismanaging the affairs of the temple. It is stated that one Devidas Shetty of Kodethur Guthu family had initiated the process of laying claim to the hereditary trusteeship of the said temple. Representations are said to have been made to the Commissioner, HR and CE, in this regard from the year 2008.

The petitioner was said to have been chosen by his family, ideally qualified to hold the office of Hereditary Managing Trustee of the temple and accordingly, an application is said to have been made to the Deputy Commissioner, HR and CE, Mangalore, on 10.8.2010, for a declaration that he was the Hereditary Managing Trustee of the said temple. Similarly, the second respondent is also said to have filed an identical application before the said authority, as on 19.8.2010.

The Deputy Commissioner, after a summary enquiry, by his letter dated 19.10.2010 addressed to the Commissioner, had opined that since there were rival claims, the matter be referred to the competent civil court.

Upon such reference, the first respondent is said to have commenced an enquiry. According to the petitioner, the enquiry was conducted with undue haste and in a perfunctory manner. The petitioner has indicated the sequence of events at the enquiry, in a tabular form, thus:

The petitioner would hence seek to emphasize that the matter has not been considered on merits but has been disposed of on extraneous and irrelevant considerations. The same is in violation of principles of natural justice and that it smacks of bias. It is emphasized that the petitioner had raised a threshold bar of jurisdiction in the said authority proceeding to adjudicate on a dispute as regards hereditary trusteeship, which it has been held by the Apex court as well as this court, as falling outside the scope of the jurisdiction of the office of the first respondent. However, the first respondent having chosen to ignore the said preliminary objection and having proceeded to consider and accept the claim of the second respondent to the hereditary trusteeship of the temple, while the petitioner had not even chosen to address the matter on merits and this aspect having been placed on record by way of abundant caution, in that, the petitioner was seeking a ruling on the question of jurisdiction as a preliminary issue, in order to address the case on merits, and the authority having proceeded to deal with the matter on merits, the present writ petition is filed.

3. The learned Senior Advocate, Shri Jayakumar S. Patil, appearing for the counsel for the petitioner would hence contend that the primary issue that would arise for consideration is whether the first respondent was acting within his jurisdiction in having passed the impugned order and if not, that the parties be relegated to a civil suit in order that the dispute be adjudicated, in accordance with law.

4. Per contra, it is contended on behalf of the second respondent that it is true that from time immemorial, the temple has been managed by the senior most member of the Kodethur Guthu family, which is governed by the Alia Santhana law of inheritance. It is denied that the petitioner belongs to the Kodethur Guthu family.

It is asserted that the ancestors of the second respondent have been the managing trustees of the temple since time immemorial. The second respondent seeks to trace lineage from Ramanna Shetty who was said to be the Managing Trustee of the temple from 1.10.1888 till 1920. He was said to be the son Poovakke. Thereafter, his brother Koti Shetty is said to have been the managing trustee from 11.7.1920 onwards. Thereafter, his sister's son Mahabala Shetty is said to have been the trustee from 18.5.1937 onwards. On account of his ill health, he is said to have resigned and his brother Shridhara Shetty had become the managing trustee from 11.3.1950 onwards. It is claimed that the records maintained by the temple would reflect the above tenure of the several ancestors of the second respondent having continuously held the office of a hereditary trustee of the temple. The second respondent also draws attention to an Order dated 20.12.1954, passed by the Deputy Commissioner, HR and CE, Coimbatore, recognizing the trustees from Kodethur Guthu family as hereditary trustees of the temple.

It is pointed out that one Bhoja Shetty, said to be an ancestor of the petitioner, had filed an application under Section 57 (b) of the Madras Hindu Religious and Charitable Endowments Act, 1951, before the Deputy Commissioner, HR and CE, South Kanara in OA.1/1968, against Dr. Gananath Shetty and others and had sought to be appointed as a hereditary trustee of the temple, on the ground that he belonged to the Kodethur Guthu family. It was his specific case that properties belonging to his family had been mortgaged under a deed dated 3.6.1891 to the family of Dr. Gananath Shetty. It was his further case that his family had filed a civil suit in OS No. 198 / 1951 in Karkala, for redemption of mortgage in favour of Poovakke Shedthi, said to have been the maternal grandmother of Dr Gananatha Shetty. It was his contention that the mortgage having been redeemed in the year 1964, the privileges in respect of the hereditary rights to the trusteeship of the temple, which were also mortgaged, stood restored to his family.

It is claimed that the Deputy Commissioner, had at the enquiry found that in view of an admission by Bhoja Shetty that he belonged to a Devasya family, the question of claiming hereditary trusteeship under the Kodethur Guthu line of succession, did not arise. It was also found that the mortgage deed did not disclose the transfer of any such rights in the first place. The rights referred to in the mortgage deed were only moolgeni rights. And accordingly, by an order dated 16.7.1969, it was held that Dr. Gananatha Shetty was entitled to hold the said office as per the Aliasanthana Law of succession. Incidentally, Dr. Gananatha Shetty was said to be the grand father of the second respondent herein. The above said order had attained finality.

It is stated that after Dr Gananatha Shetty was named as the hereditary trustee, one Dr. Shamba Shetty, had filed a civil suit in O.S.No.389/1971, before the Court of Munsiff, Karkala, seeking a declaration that he was the senior most member of the Kodethur Guthu family and claimed to be eligible for appointment as the hereditary trustee of the temple. The said suit is said to have been decreed as prayed for. That judgment dated 20.3.1976 is said to have been challenged in appeal in R.A.No.42/1976, before the Court of the Principal Munsiff, Karkala. The appeal is said to have been dismissed by a judgment dated 22.2.1978. This is said to have been confirmed by a judgment of this court on its appellate side, in R.S.A. 450/ 1978, dated 5.2.1981, affirming the view that the senior most member of the entire Kodethur Guthu family would have claim to hereditary trusteeship and could not be restricted only one 'Kavaru' or the descendants of one sister alone.

Thus, Dr. Shamba Shetty had become the hereditary trustee of the temple with effect from 1981 till his demise in the year 1989. He is said to have been succeeded by Dr. Gananatha Shetty, who in turn is said to have expired on 15.4.1998. Thereafter, one Ramanna Shetty who was to have succeeded to the trusteeship had relinquished his right on account of ill health, in favour of one Dayananda Shetty, who is said to have held such office till his death in the year 2007. It is claimed that from then, the post of hereditary trustee from the Kodethur Guthu family has been vacant, as the next senior most member of the family - Shantaram Adappa and Nagaraja Shetty have been unwilling to accept the position and are said to have given their consent for the second respondent herein to hold the said post.

In the above background, it is claimed that the second respondent had staked his claim to be named as the hereditary managing trustee of the temple. It is thereafter that the petitioner is said to have also staked his claim. Though for more than 124 years neither the petitioner nor his ancestors had made any such claim to the hereditary trusteeship rights. The last such attempt was as already stated by Bhoja Shetty.

It is denied that the petitioner who is said to be a member of the Devasya family, could also claim that the said family was a part of Kodethur Guthu. It is denied that there has been any irregularity in the enquiry before the first respondent. It is asserted that the power of the first respondent may be curtailed in a case where there was a dispute between two family members as to who was the rightful heir, but in a situation where a stranger, who did not even belong to the family, seeks a declaration - without any material proof of his claim, the first respondent would be in a position to exercise his discretion to make an assessment as to the seriousness of the dispute, in a given case to relegate the parties to a civil court. In the absence of any cogent material documents to evidence the petitioner's claim, the jurisdiction of the first respondent being attacked to appoint a hereditary trustee, in the face of overwhelming material available to enable the first respondent to make the appointment, is unfair and unjust. On the other hand, it is pointed out that the second respondent is only seeking to succeed as the next available senior member of the Kodethur Guthu family, without there being any dispute inter-se in their family - who have continued in an uninterrupted line of succession.

5. The third respondent has entered appearance and has filed statement of objections to claim that the temple was originally managed by a sole hereditary trustee, of the Kateel Asranna family. It is stated that in the records maintained by the temple, it is found from an entry in the statutory register that the first entry is the appointment of one Sri Krishna Asranna as the sole hereditary trustee in the year 1807. Thereafter, in the year 1860 he has been succeeded by one Lakshminarayana Asranna. It is stated that from the year 1888, a trustee from the Kodethur Guthu family had been inducted into the management of the temple and ever since there have been two trustees, one from the Asranna family and one from the Kodethur Guthu family. It is denied that the petitioner or anybody claiming under him could claim to be entitled to be the managing trustee. And it is pointed out that under the provisions of the law governing the temple, the management vests in a trustee or a body of trustees.

6. In the light of the above rival contentions and having regard to the facts and circumstances of the case, it is not in dispute that the temple is managed by two hereditary trustees one each of the Kodathur Guthu and Asranna family. It is on record that an ancestor of the present petitioner, Bhoja Shetty, had staked his claim against Dr.Gananatha Shetty, who was the grand uncle of the second respondent. It was the specific claim of Bhoja Shetty that he belonged to the Kodathur Guthu family and as such he sought to be appointed as hereditary trustee, on the footing that his family had mortgaged all their rights including the hereditary rights pertaining to the temple and that with the redemption of the mortgage, the hereditary rights reverted to his family. That claim has been negatived with specific findings that there had been no mortgage of any such hereditary rights and that the very claim of the said Bhoja Shetty belonging to the Kodethur Guthu family, not being tenable, by an order dated 16.7.1969.

Thereafter, there has been no dispute from any quarter except within the family of the line of succeeding members of the Kodethur Guthu family. It transpires that there were charges of misappropriation against Dayanand Shetty, a hereditary trustee from the Kodethur Guthu family and he was kept under suspension by the Commissioner, HRand CE, till his death in the year 2007. The next two senior members of the Kodethur Guthu family are said to have relinquished their claim to hereditary trusteeship, and it is in that background that the second respondent had filed an application seeking appointment as the next hereditary trustee representing the Kodethur Guthu family, with no objection from any of his family members.

The petitioner in turn is said to have claimed a declaration as a hereditary trustee of the Kodethur Guthu family as well. The Deputy Commissioner, HR and CE, who is said to have received the respective representations of the second respondent and the petitioner, is said to have recorded the fact that the second respondent had furnished records from the year 1888 to 2007 to prove the hereditary trusteeship of the Kodethur Guthu family and that the petitioner had not produced any such records. He had hence referred the matter for a decision by the Commissioner.

It transpires that the parties had submitted their written submissions before the Commissioner, the petitioner choosing to restrict his contentions as to the jurisdiction of the Commissioner to adjudicate on a disputed rival claim to such appointment as the hereditary trustee.

The Commissioner having proceeded to decide in favour of the second respondent, as no serious dispute could be found with regard to his claim, and that on the other hand, the petitioner was not in a position to make out a prima facie case, much less could he refute other overwhelming material that was available to negate the case of the petitioner. This exercise of discretion by the Commissioner is in tune with the observation of the Apex Court in the case of V. S. Thiagaraja Mudaliar v. Bava C. Chokkappa Mudaliar, AIR 1974 SC 944, (at paragraph no. 15), in that, the competent authority before exercising jurisdiction to determine the controversy before it, the authority may have to tentatively decide whether the applicant is a stranger without any locus standi or is the heir to the last trustee. The petitioner in the case on hand, was not claiming as a heir under the last known trustee, but was seeking to trace his lineage in the hoary past and on the basis of certain assumptions that could not be readily accepted, to treat the matter as involving a serious dispute, that would require adjudication by a civil court and for the Commissioner to be denuded of jurisdiction to name a hereditary trustee.

It cannot be that each time a hereditary trustee, demits office or dies while in office, the next senior most member, who may indisputably be the next legal heir to the trusteeship should be driven to a civil court, merely because a stranger or even a relative, though not claiming under the last trustee, asserts his claim to hereditary trusteeship.

The only remedy of the petitioner is to firstly to establish that he belongs to the Kodethur Guthu family and that the hereditary trusteeship has been illegally usurped by the second respondent and his ancestors over the previous century and beyond. The fate of any such civil action is left to the imagination.

The present writ petition is however, without merit and is dismissed.