1. The unsuccessful plaintiffs, ten in number, are the appellants. Having initially failed before the authorities under the Hindu Religious and Charitable Endowments Act, 1959, hereinafter referred to as the Act, in their O. A. No. 20 of 1969 on the file of the Deputy Commissioner, H. R. & C.E. (Admn.) Department and the subsequent appeal, A. P. No. 56 of 1975, on the file of the Commissioner, H. R. & C.E. (Admn.) Department, they filed 0. S. No. 61 of 1979 on the file of the Sub Court, Tiruvallur, to set aside the order in A. P. No. 56 of 1975 and consequently to allow their petition, O. A. No. 20 of 1969. The said suit filed under Section 70 of the Act was dismissed and hence this appeal.
2. The abovesaid authorities negatived the plaintiff's prayer for declaration that they are the hereditary trustees of the suit temple. According to the plaint, suit temple was built by the father of plaintiffs 1 and 2 with the funds supplied by the family of all plaintiffs in the year 1921, all of them hail from a common ancestor and they and their predecessors alone have been the hereditary trustees of the suit temple all along for over five decades. They also pleaded that they have perfected their right to be such hereditary trustees by continuous, uninterrupted and open enjoyment thereof adverse to the interest of any other person.
3. The first defendant, who died pending the suit and whose legal heirs are defendants 3 to 9, filed a written statement repudiating the claim of the plaintiffs. According to him, the management of the temple was with the elders of the village representing various castes, with the consent of the villagers. The second defendant/Commissioner of the Department filed a written statement also stating that the suit temple has been managed by the villagers and that the claim of the plaintiff was untenable.
4. The court below has held that the plaintiffs are not the hereditary trustees and that the abovesaid order of the Commissioner, H. R. & C.E. is not liable to set aside, but it did not go into the question of the plaintiffs' claim of title to the office by adverse possession.
5. The court below also found that the allegation that the suit temple was constructed by the ancestors of the plaintiffs is not proved. Against this finding there is no attack by the learned counsel for the appellants, but he only made before me two submissions. The first one is that it is in evidence that right from 1938, the plaintiffs' family was alone in management of the suit temple and so they should be declared hereditary trustees as defined under Section 6(11) of the Act. His second submission is that at any rate the plaintiffs have perfected title to the said office by prescription. In this appeal I have to consider these two submissions only.
6. The said claim of the learned counsel for the appellants is strongly rebutted by both the learned counsel for the first respondent/ Commissioner and for the other respondents, the legal representatives of the deceased first defendant.
7. Let me first of all dispose of the question of title by adverse possession. No doubt, as pointed out by the learned counsel for the appellants, this Court held in Dy. Commr. H. R. & C.E. Board v. Sidhdhivinayaga Mudaliar : (1971)1MLJ422 that even the office of hereditary trusteeship could be acquired by prescription. But the learned counsel for the respondents 2 to 8 relied on Kameswara Rao v. Somanna, : AIR1955AP212 , to contend that unless there is a rightful claimant to the office, no person can set up title by adverse possession and the question of adverse possession would not arise at all in such a case. According to the learned counsel for respondents 2 to 8, in the present case though the villagers had the right to elect the trustees for the temple, it is not shown by the plaintiffs that there was any trustee or trusteeselected or nominated at any point of time by the villagers, against whom adverse possession could be claimed by the plaintiffs. The relevant passage in : AIR1955AP212 runs asfollows:--
'The learned Advocate for the respondents relied on -- Palaniyandi Malavarayan v. Dadamalali Vidayan (1916) 2. MLW 723 : AIR 1916 Mad 1001 (A).
The headnote sets out the legal position correctly and is in the following terms;
The right to trusteeship of a temple cannot be acquired by adverse possession so long as there is no lawful trustee who could claim to recover the office from the person who claims to hold it adversely to him.' ....................................
This decision was followed in -- 'Manickkam Pillai v. Thanikachallam Piltai', AIR 1917 Mad 706(B). The relevant observations are as follows:--
'Since however there were no properly constituted trustees of the plaintiff temple there was no person with knowledge of the acts of the defendants or capable of taking proceedings necessary and, therefore, possession was not adverse until the appointment of trustees in 1900'.
In 'Seeit Kutti v. Kjmbi Pathumma', AIR 1919 Mad 972, Srinivasa Iyengar, J. followed the two decisions referred to above.'
In view of the abovesaid observations, I think there is no scope for any prescriptive title to the plaintiffs in the present case with reference to the trusteeship of the temple.
8. Coming to the other question, it has to be seen whether the plaintiffs could be termed 'hereditary trustees' of the suit temple as per the definition of that term found in Section 6 (11) of the Act. Section 6(11) of the Act runs as follows :--
''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 succession is in force.'
So there are three kinds of hereditary trustees as per the above definition :
1. A trustee, succession to whose officedevolves by hereditary
2. A trustee, succession to whose office is regulated by usage
3. A trustee, succession to whose office is specifically provided for by the founder.
Admittedly, in the present case, the last category will not apply, because first of all there is no evidence as to who actually founded the suit temple and whether there was any specific provision made by the founder relating to the trusteeship. Regarding the second category, viz., a trustee, 'succession to whose office is regulated by usage', it has been held by the Supreme Court in Sambudamurathi Mudaliar v. State of Madras (1970) II MLJ 58 as follows :--
'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 Rule's. 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 , (Section 6 (9) above referred to is of the old Act corresponding to the present 6(11) of the Act.)
Now, in the present case, there is no plea in the plaint that the succession to the office is regulated by usage. No doubt there is such a plea in the application, O.A. No. 20 of 1969, before the Deputy Commissioner, as follows :--
'.....Office of the trusteeship is regulated by usage, that is the eldest male member of the family to hold office, and in that the first petitioner has been holding the office for over40 years.'
Thus the regulation by usage is only regarding who actually among the members of the plaintiffs family is to hold office. If that is so, it is not known first of all how all the plaintiffs claimed in the present suit that all of them are hereditary trustees. Any way only to the extent that the eldest male member could hold the trusteeship, there is a 'modified rule'. If at all, only the first plaintiff, who was the first petitioner in O. A. No. 20 of 1969, can claim the hereditary trusteeship. But I find from the evidence of P. W. 1,. the first plaintiff himself that there as another person called Elumalai Chettiar, elder to the first plaintiff. If that is so, the first plaintiffs -- also cannot claim the hereditary trusteeship. The above said Elu-malai Chettiar's name is no doubt mentioned as one of the nine trustees along with the first plaintiff, of the suit temple in Ex. A.3, the invitation for Kumbabishekam for this temple sent in the year 1938. But P.W. 1 admitted as follows :--
(Vernacular matter is omitted)
Further P.W. 1 also admitted as follows :
(Vernacular mailer is omitted)
(The above said 1.24 acres, one of the two landed properties of the suit temple is admittedly not with the plaintiffs all along; nor have they taken any steps to recover the same from the first defendant.) In the light of the above admission, it is clear that the plaintiffs can lay no claim to hereditary trusteeship of the first or second type abovestated:
Further, in the abovesaid connection, I may also point out the following observations in the decision reported in : (1971)1MLJ422 (above referred to);
'The distinction between custom and usage as brought out in this decision has been clearly expressed in the following passage at page 15 of 'Hindu Law' by N. R. Ragha-vachariar, 5th Edn :--
Though usage and custom are often used as convertible terms, the antiquity, the uniformity and the notoriety which are required in the case of a custom are not necessary in proving a valid usage. It is sufficient if it is shown that the usage is so well known and acquiesced in that it may be reasonably presumed to have been tacitly imported by the parties into their transactions.'
In the light of the above referred to evidence in the present case, and alleged usage cannot also be reasonably presumed to have been tacitly imported by the parties into their transactions. Therefore also the plaintiffs cannot claim to come under the above-referred to second type of hereditary trusteeship defined under Section 6(11) of the Act. Further, though the temple was only with Beri Chetty community to which the plaintiffs belong, it was not so stated in the plaint at all. Further P.W. 1 admitted that it was not so stated in O. A. No. 20 of 1969 proceedings. All these clearly show that the plaintiffs have taken out different stands at different times regarding their claim to hereditary trusteeship.
9. In this connection, I must point out the following passage from Sri Mahant Parama-nanda Das Goswami v. Radhakrishna Das : AIR1926Mad1042 which is also quoted with implied approval in the above-referred to : (1970)2MLJ58 :--
'Hereditary succession is succession by theheir to the deceased under the law, the officemust be transmitted to the successor according to some Definite Rules of descent whichby their own force designate the person tosucceed.'
Further in Commr. H. R. & C.E. v. Maligai and Shop Varthagar Sangam : AIR1976Mad67 also, I find the following passage :
'The usage' can have relevancy, meaningand significance only if a Particular Methodof Succession has been proved to be inexistence over a long period during whichmore than one succession had been takenplace.''
But the plaintiffs as stated above is not having any specific case of such 'definite rules of descent' of 'particular method of succession'.So also the plaintiffs cannot claim to be 'hereditary trustees' under the abovesaid Section 6(11) of the Act either the second or first type stated above.
10. No doubt, the learned counsel for the appellants brought to my notice the following features of the case; (1) In Ex. A-44, survey register of the suit temple properties, the first plaintiff is described as Dharmakartha, The said document is signed and approved by the officers of the H. R. & C.E. Department. (2) An admission by D. W. 1, the only witness examined on the side of the defendants is as follows :--
(Vernacular matter is omitted.
(3) The plaintiffs have examined three elderly persons in the village as P. Ws. 2 to 4. They all support the case of the plaintiffs. P.W. 2 is aged about 85, P.W. 3, is aged 90 and P.W. 4 is aged 65. (4) Right from 1947 to 1971 the appellants alone have paid kist in relation to one of the suit temple properties, as borne out by Exs. A-4 to A-42, the kist receipts. (5) As per Ex. A-49, photo, there is an inscription in the temple that a portion of the temple was constructed by Ramasami Chetty of the plaintiffs' family.
10A. Learned counsel for the appellants also relied on Subramania Pillai v. Trustees, Temple Group 1981) II MLJ 77. There, after referring to several decisions, the Division Bench has observed that when members of a particular family alone were exercising rights of trusteeship, they would be 'hereditary trustees' under the abovesaid Section 6(11) of the Act, fhat it is not necessary that the trusteeship should develove from father to son and so on and that as regards the person to act as trustee at any particular point of time, it would be open to the family to decide the matter as and when the question arises. Despite all these, I find the following features referred to by the learned counsel for the first respondent, apart from all that I have pointed out earlier; in Ex. B-53, the order in A.P. No. 56 of 1975 passed by the Commissioner, H. R. & C.E. Department, it is observed that the appellants filed earlier O. 3. No. 129 of 1965 to get a declaration that they are the hereditary trustees of the suit temple and the said suit was dismissed and there subsequent appeal in A. S. No. 323 of 1966 was also dismissed. No doubt, in this connection, the learned counsel for the appellants pointed out that in view of Section 108 of the Act, the decisions in O. S. No. 129 of 1965 and A, S. No. 323 of 1966 are without jurisdiction, since the abovesaid declaration could be got only from the relevant authorities and not from a civil court. The said Section 108 of the Act no doubt runs as follows :--
'108 Bar of Suits in Respect of Administra-tion or Management of Religious Institutions, etc. -- No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of law, except under, and in conformity with, the provisions of this Act. Section 63 (b) of the Act reads as follows :--
'Deputy Commission to Decide Certain Disputes and Matters :-- Subject to the rights of suit or appeal hereinafter provided, the Deputy Commissioner shall have power to inquire into and decide the following disputes and matters :--
(a) .....
(b) Whether a trustee holds or held office as a hereditary trustee;' Therefore, according to the learned counsel for the appellants, the civil court has no jurisdiction in the above matter and the abovesaid dismissal of the suit and the appeal can have no effect. He also pointed out that there is no reference to the abovesaid decisions in O.S. No. 129 of 1965 and A. S. No. 323 of 1966 in the written statement of the Commissioner in the suit.
11. But the judgments in O. S. No. 129 of 1965 and A. S. No. 323 of 1966 have not been exhibited in this proceeding and it cannot be said definitely why the said suit and the appeal were dismissed. So in the absence of those documents (judgment copies), it will not proper for the me to infer that the abovesaid suit and appeal and without jurisdiction, particularly when the plaintiffs have chosen to suppress the same in their plaint. If reallythey were without jurisdiction, the plaintiffs would have certainly referred to them and stated so in the plaint.
12. That apart, learned counsel for the first respondent/Commissioner brought to my notice another important admission by P.W. 1, the first plaintiff in his deposition before the Deputy Commissioner in the abovesaid proceeding, O.A. No. 20 of 1969 itself. (The said deposition is marked as Ex. B. 2 in the suit). A portion of the said deposition is as follows:
'I belong to Beri Chetty community Kandappa Chetti is a Vaniya Chetty. There wasno dispute about the honours. There was adispute in 1938 about honours. Thereon therewas a panchayat on it and Ex. A-21 is thefindings of the Panchayat. Kandappa Chettywas also in Management of the Suit Templethen.'
Ex. A-21, referred to in the passage quoted above, is the same as Ex. A-46 dated 24-12-1943 marked in the suit. It is the decision given by the panchayatdars when there was some dispute regarding temple honours in the suit temple between the first plaintiff and the above referred to Kandappa Chetty. In the abovesaid passage P.W. 1 himself has admitted that Kandappa Chetty was also in management of the suit temple then. In the abovesaid context, the term 'then' therein should be taken as the period around the year '1943'.
13. Learned counsel for the first respondent/Commissioner also argued that without notice under Section 80, Code of Civil Procedure, the present suit filed is not maintainable and for this he relied on Executive Officer, Arulmighu Ranganathaswami Devasthanam v. H.H. Srivan Sitagopa Sri Vedantha Desika Yathindra Mahadesigan, (1989) MLW 361 and also Maharashtra v. Sh. Chander Kant, : [1977]1SCR993 . But the judgment reported in (1989) I LW 361 has been set aside by the Supreme Court in H. H. Srivan Satagopa Sri Vedantha Desika Yathinddra Mahadesignan, (1991) 2 MLW 599, wherein the Supreme Court has allowed the matter to be gone into on merits, despite the fact that the abovesaid section 80 CPC notice was not there. That apart the learned counsel for the appellants relied on several earlier decisions of this Court like S. N. Chinna Kandar v. Commr. H. R. & C.E., ILR (1980) Mad. 213; Commr. H. R. & C. E. v. Kacherichamy (1981) II MLJ 375 : Lak-shmana Shah v. Commr. H. R. & C.E. : AIR1972Mad319 wherein it was held differently from the decision reported in Executive Officer, Arulmigu Ran-ganathaswami Devasthanam v. H. H. Srivan Satagopa Sri Vedantha Desika Yathidra Mahadesigan, (1989) I MLW 361 holding that for the statutory suit under Section 70 of the Act, notice under Section 80 CPC is not required. So far as Maharashtra v. Sh. Chander Kand, : [1977]1SCR993 is concerned, that arises under M.P. Public Trusts Act, 1951 and there appears to be some differences between the relevant provisions in the said Act and Hindu Religious & Charitable Endowments Act 1959, and so I am unable to follow the said decision. All these apart, the learned counsel for the appellants also pointed out that there could be waiver of notice required under section 80 CPC and in that connection he relied on Dhian Singh Sobha Singh v. The Union of India, : [1958]1SCR781 and Commr., H. R. C. E. V. P. Kanniappa Nicker, 1989 TLNJ 232. This claim of waiver is submitted on the ground that in the written statement of the first respondent/Commissioner, the abovesaid notice question was not at all raised. In view of the above said decisions, I hold that the suit is maintainable.
14. Yet, in view of my earlier mentioned conclusions, there is no merit in this appeal and hence it is dismissed. However, in the circumstances of the case, there will be no order as to costs.
15. Appeal dismissed.