M.K. Mooka Velar Vs. the Commissioner, Hindu Religious and Charitable Endowment Department and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/829909
SubjectTrusts and Societies
CourtChennai High Court
Decided OnFeb-27-1997
Reported in(1998)3MLJ28
AppellantM.K. Mooka Velar
RespondentThe Commissioner, Hindu Religious and Charitable Endowment Department and ors.
Cases ReferredO. Radhakrishnan v. Manickam
Excerpt:
- constitution of india article 141; [a.p. shah, c.j., f.m. ibrahim kaliffulla &v. ramasubramanian, jj] reference to larger bench - precedent - full bench decision held, it is binding on the division bench. only if the full bench comes to conclusion that earlier full bench decision is incorrect, there is scope for making reference to larger bench. division bench doubting correctness of full bench decision cannot direct registry for placing papers before chief justice to make reference to larger bench. a.r. lakshmanan, j.1. this letters patent appeal is directed against the judgment of a learned single judge of this court in a.s.no. 810 of 1981 dated 23.1.1992 dismissing the appeal filed by the plaintiff against the judgment in o.s.no. 81 of 1979 on the file of the subordinate judge, ramanathapuram at madurai. the plaintiff is the appellant herein.2. the short facts are, respondents 2 to 4 / defendants 2 to 4 filed o.s.no. 445 of 1973 on the file of the district munsif court, paramakudi, for permanent injunction restraining the appellant/plaintiff from interfering with their management of the suit temple. that suit was dismissed on 31.3.1975. defendants 2 to 4 filed a.s.no. 135 of 1975 in the sub court, ramanathapuram at madurai. they filed i.a.no. 317 of 1975 in that appeal for amendment of the plaint for adding the relief of declaration that they are joint trustees and are in joint possession. that application was allowed and the appeal was also allowed thereby decreeing the suit and holding that defendants 2 to 4 are joint trustees and that they are entitled to an injunction as prayed for. the plaintiff filed s.a.no. 246 of 1976 in this court, which was dismissed by this court on 23.4.1977. in the second appeal, this court has directed the parties to approach the deputy commissioner, h.r. & c.e. department, for framing a scheme.3. after the judgment in s.a.no. 246 of 1976, defendants 2 to 4 filed o.a.no. 80 of 1977 before the deputy commissioner, h.r. & c.e. department, madurai, for modification of the scheme. the deputy commissioner modified the scheme by order dated 27.2.1978 by allowing each trustee to act solely to the exclusion of others. the plaintiff filed a.p.no. 46 of 1978 before the commissioner of h.r. & c.e. department while defendants 2 to 4 filed a.p.no. 45 of 1978. the first turn was given to the appellant by the deputy commissioner which was challenged in the appeal before the 1st defendant/commissioner. the 1st defendant dismissed the appeal filed by the plaintiff and allowed the appeal filed by defendants 2 to 4, on 22.2.1979. thereafter, the plaintiff filed o.s.no. 81 of 1979 before the sub court, ramanathapuram at madurai, for setting aside the order of the deputy commissioner dated 27.2.1978. that suit was dismissed on 24.2.1981. the plaintiff filed further appeal in this court in a.s.no. 810 of 1981, which was dismissed by a learned single judge on 23.1.1992. aggrieved by the same, the plaintiff has filed the present letters patent appeal.4. defendants 2 to 4, as already noticed, moved the hindu religious and charitable endowment department by filing o.a.no. 80 of 1977 before the deputy commissioner, madurai. the plaintiff objected to the proceeding on various grounds. the deputy commissioner framed a scheme for management of the temple on 27.2.1978. under the scheme, a turn management by rotation was provided as follows:(a) from 1.4.1978 to 31.3.1979 by the plaintiff.(b) from 1.4.1979 to 31.3.1980 by the 2nd defendant.(c) from 1.4.1980 to 31.3.1981 by the 3rd defendant.(d) from 1.4.1981 to 31.3.1982 by the 4th defendant.from 1.4.1982 by successive turn of management among the parties.5. aggrieved by this order, the plaintiff and defendants 2 to 4 separately preferred appeals to the 1st defendant. the 1st defendant by his order dated 22.2.1979 practically confirmed the order of the deputy commissioner with the modification regarding turn management.(a) from 1.4.1978 to 31.3.1980 by the 2nd defendant.(b) from 1.4.1980 to 31.3.1981 by the 3rd defendant.(c) from 1.4.1981 to 31.3.1982 by the 4th defendant.(d) from 1.4.1982 to 31.3.1983 by the plaintiff.6. the order of the deputy commissioner and the commissioner, h.r. & c.e. department are challenged as wrong, erroneous and untenable by the plaintiff on the following grounds:(a) it is established in the case that for about 30 years, the plaintiff alone was in possession of the temple and its properties and was managing the temple and its affairs to the exclusion of all others. prior to the plaintiff, his father karuppa velar was in exclusive possession and management of the temple and its properties and affairs, for over 21 years. by such long, continuous and exclusive possession and management of the temple, its affairs and its properties, the plaintiff had prescribed an indefeasable right to exclusive and sole management of the temple as its sole hereditary trustee.(b) by such long, exclusive and adverse possession and management of the temple and its properties, the right and interest of all others who have or who claimed or who could have claimed any right to the office of trusteeship got extinguished. defendants 2 to 4 had no right to the office of trusteeship and even if they had any right, such right had become extinguished by the ouster and adverse possession of the plaintiff and his father for over the statutory period.(c) the deputy commissioner and the commissioner, h.r. & c.e. department had no jurisdiction to decide a civil dispute whether defendants 2 to 4 had subsisting right to the office of trusteeship and that without first deciding that dispute, the deputy commissioner and the commissioner should not have exercised their powers under section 64 of the hindu religious and charitable endowments act (hereinafter referred to as the act).(d) in the prior proceedings in o.s.no. 445 of 1973, the question whether defendants 2 to 4 had any subsisting right to the office of the trusteeship was not in issue and therefore, any decision rendered in the prior proceedings will not be of any help to decide the specific dispute.(e) the deputy commissioner and the commissioner, h.r. & c.e. department have failed to appreciate that there was already a scheme for proper management of the temple in o.a.no. 69 of 1938, framed by the h.r. & c.e. board under act 2 of 1927. under that scheme, the plaintiff was in management of the temple as the sole hereditary trustee. unless it is shown and established that either the existing scheme was inappropriate to cover the new set of facts or that it could not be worked out under the changed circumstances or that new circumstances had arisen and mat the scheme did not envisage such new circumstances, the existing scheme should not be set aside or modified. but, the orders of the deputy commissioner and the commissioner were silent on these aspects. there is no order to the effect that the existing scheme was set aside. the effect is, that there would be two different schemes providing two different courses of management of the temple which will lead to utter confusion and the institution will suffer great and irreparable loss and injury.(f) the deputy commissioner and the commissioner of h.r. & c.e. department can exercise powers under section 64 of the act only on petition filed by five or more persons. in the instant case, the petition filed by three persons alone was defective and was not maintainable.(g) defendants 2 to 4 are the lessees of the temple lands. as such, they were disqualified to be the trustees.(h) defendants 2 and 3 and the father of the 4th defendant claimed in the settlement proceedings that the lands that were cultivated by them belonged only to them and that the suit temple was not entitled to any right in them. however, patta was granted to the suit temple. by such wilful denial of title of the suit temple to the properties and by setting up a title adverse to that of the suit temple, defendants 2 to 4 had forfeited their right to the office of trusteeship even if they had any right to the office:(i) being a deaf and mute, the 4th defendant is disqualified to function as a trustee of the suit temple.(j) the commissioner, h.r. & c.e. department has not given any reason for negativing the plaintiff of his right to first turn of the management. the fact that the plaintiff had been in continuous management of the temple was no reason to deny him of his right to first turn management. the plaintiff being the member of the first group or vagai of the family, he has an indefeasable and undeniable right to the first turn of the management.7. for the above and other reasons, the suit was laid by the plaintiff for setting aside the order of the deputy commissioner, h.r. & c.e. department, madurai, and of the commissioner, h.r. & c.e. department, madras, and for other reliefs.8. the plaintiff prayed for the following reliefs in the suit:(a) the order of the commissioner, h.r. & c.e. department, madras, made on 22.2.1979 in a.p. nos. 45 and 46 of 1978, modifying the order of the deputy commissioner, h.r. & c.e. department, madurai, dated 27.2.1978 in o.a. no. 80 of 1977, whereby a scheme was framed for management of the suit temple, be set aside.(b) the contesting defendants do pay the plaintiff the costs of the suit and(c) for such other and further reliefs as this court may deem fit and proper in the nature and circumstances of the case.9. the 1st defendant filed a written statement denying the allegations contained in the plaint as false. the plaintiff's claim that he was in exclusive management of the temple as its hereditary trustee and that the department had recognised him as the sole trustee and was also collecting contribution and audit fees are all denied as false. it is stated that defendants 2 to 4 are also the descendants of the founder of the temple and that their fore-fathers had been in management of the temple and its properties. it is contended that the scheme framed by the deputy commissioner is correct and the department is empowered to frame a scheme. this court has specifically stated that the scheme has to be passed only by the deputy commissioner, h.r. & c.e. department. it is explicit from this court's order that defendants 2 to 4 are also the hereditary trustees and as such, they are also entitled to the management of the suit temple. the claim of the plaintiff as the sole hereditary trustee is untenable. the further claim of adverse possession and extinguishment of trusteeship as against defendants 2 to 4 is also false and baseless. it is, therefore, contended by the 1st defendant, that the scheme framed is valid and is in accordance with the provisions of the act and the rules and that the deputy commissioner is empowered to frame a scheme, which is binding upon the plaintiff. the plaintiff having submitted to the jurisdiction is estopped from disputing the jurisdiction of the deputy commissioner to frame a scheme under section 64 of the act.10. defendants 2 to 4 filed a written statement contending that the suit temple was not founded by the ancestors of the plaintiff but founded by that of defendants 2 to 4. there were four branches of the founders. defendants 2 to 4 are the descendants of the original founder and that the successors of the founder have been managing the temple and its properties. all the four branches have been jointly managing. the plaintiff is the adopted son of karuppana velar. it is false to state that the plaintiff assumed charge on the death of his father. it is denied that the plaintiff was in sole and exclusive management of the temple and its properties and affairs. the plaintiff is estopped from denying the relationship and the fact that defendants 2 to 4 are the descendants of the original founder. it is false to state that defendants 2 to 4 have no right and that their forefather never claimed any right of trusteeship. defendants 2 to 4 are the descendants and that they are lawful trustees of the temple entitled to be in management of the temple and its properties. in the face of the prior proceedings and the decision of the appellate court in a.s.no. 135 of 1975 on the file of the subordinate judge, ramanathapuram at madurai, and that of this court in s.a.no. 246 of 1976, it is futile for the plaintiff to deny the right of defendants 2 to 4, further, the present suit is barred by the principle of res judicata by virtue of the decision of the sub court, ramanathapuram at madurai in a.s.no. 135 of 1975 and that of this court in s.a.no. 246 of 1976. the plaintiff is also barred by virtue of the provisions of order 2, rule 2 of the code of civil procedure in making this kind of claim in the present suit viz., case of prescriptive title, ouster and adverse possession. therefore, defendants 2 to 4 prayed for the dismissal of the suit.11. on the above pleadings, the trial court framed the following issues for trial:1. whether the plaintiff had prescribed right to exclusive and sole management of the temple as its sole hereditary trustee?2. whether defendants 2 to 4 had right to office of trusteeship?3. whether the order of the commissioner in a.p.nos. 45 and 46 of 1978 modifying the order of the deputy commissioner is liable to be set aside?4. whether the plaintiff's suit is barred by the principle of res judicata?5. whether the plaintiff is estopped from disputing the jurisdiction of the deputy commissioner?6. whether the suit is barred by limitation?7. whether the suit is bad for want of notice under section 80 of the code of civil procedure?8. to what relief is the plaintiff entitled?12. the plaintiff examined himself as p.w.1 and marked exs.a-1 to a-22 on his side. the 2nd defendant examined himself as d.w.1 and examined one velu as d.w.2. exs.b-1 to b-33 were marked on the side of the defendants.13. the learned subordinate judge, on a consideration of the entire materials placed before him held on issue no. 2 that defendants 2 to 4 had right to the office of trusteeship. on issue no. 1, the learned subordinate judge held that by no stretch of imagination it can be said that the plaintiff has prescribed his title for the exclusive management of the temple by adverse possession or ouster. on issue no. 4, the learned trial judge held that the plea of the plaintiff that he is not barred by res judicata cannot be accepted. on issue no. 5, the trial court observed that the 'plaintiff himself has submitted to the jurisdiction of the deputy commissioner, h.r. & c.e. department, madurai and therefore, he cannot be now heard to question the jurisdiction of the deputy commissioner. however, this issue was not pressed by the plaintiff himself at the time of hearing of the suit. on issue no. 3, the trial court held that the commissioner, h.r. & c.e. department is right in framing a scheme vesting the management of the suit temple by turn for one year in the hands of each of the four trustees by rotation and that the allotment of the last turn to the plaintiff is also justified in view of the fact that he has been in management for many years past. therefore, the trial court held that the order of the commissioner in ex.a-3 cannot be held invalid. on issue no. 6, the learned subordinate judge rejected the contention of the 1st defendant/h.r. & c.e. department that the suit is barred by limitation. since the suit has been filed by the plaintiff on 26.3.1979, the suit is in time. on issue no. 7, the trial court held that since the suit is filed by virtue of the provisions made in the act, under which a statutory right is conferred upon the person concerned, who is aggrieved by the orders of the commissioner, h.r. & c.e. department, no notice under section 80 of the code of civil procedure need be given. in the result, the learned subordinate judge dismissed the suit with costs.14. aggrieved by the judgment and decree of the trial court the unsuccessful plaintiff filed a.s.no. 810 of 1981 in this court reiterating the very same contentions. it is contended that the trial court has misinterpreted exs.a-9, a-12 and a-13 for its conclusion on issue no. 2. the trial court has also failed to appreciate exs.a-4 to a-7, a-10, a-11 and a-14 to a-17, which would establish that the plaintiff and his father alone were absolutely in possession and enjoyment of the suit temple for well over the statutory period. it is further raised in the grounds of first appeal that the scheme framed by the deputy commissioner, h.r. & c.e. department, madurai, on an application made by defendants 2 to 4 alone is clearly not maintainable in law, the same not having been made with the requirements of section 64 of the act.15. a. abdul hadi, j., rejected the contentions of the learned counsel for the appellant/plaintiff as without any substance. the learned judge held that section 64(5)(a) of the act alone will apply which does not stipulate the requirement of five persons being applicants for modification of the scheme. on the question of the plaintiff's claim of prescriptive title, the learned judge rejected the same by accepting the finding of the trial court in paragraph 8 of its judgment relying on several documents including ex.a-12 judgment. the learned judge held that the trial court has come to the right conclusion that by no stretch of imagination it could be said that the plaintiff has prescribed his title for exclusive management of the temple. learned judge has also rejected the contention of the plaintiff regarding the turn management. according to the plaintiff appellant, the commissioner, h.r. & c.e. department, ought not to have given the first turn to defendants 2 to 4 on the ground that the plaintiff was mismanaging the suit temple. on a consideration of the facts and circumstances of the case and the arguments on either side, the learned single judge came to the conclusion that there is absolutely no substance in any of the contentions raised by the learned counsel for the appellant and accordingly dismissed the appeal with costs. dissatisfied with the judgment of the learned single judge, the plaintiff has filed the present letters patent appeal.16. we have heard the arguments of mr. r. alagar, learned senior counsel for the appellant/plaintiff and mr. s. ramanathan, learned counsel for the contesting respondents 2 to 4. we have also perused the documents filed on either side and the judgments of the learned subordinate judge and the learned single judge of this court.17. mr. alagar has addressed arguments mainly on three grounds, viz.,(i) the deputy commissioner, h.r. & c.e. madurai, has no jurisdiction to modify the scheme on an application by any person and that the power conferred on the commissioner, h.r. & c.e., has to be exercised suo motu only. for this proposition, he cited the decision in o. radhakrishnan v. manickam : (1974)2mlj179 .(ii) the turn management is impermissible amongst the trustees and such a provision made in the scheme is invalid. for this proposition, he relied on the judgment of this court in the board of commissioners for the hindu religious endowments, madras v. palaniandi muthirian (1944) m.w.n. 65: i.l.r. 1944 mad. 534.(iii) the mandatory provision of section 64(1) of the act was not complied with by all the trustees.18. arguing contra, mr. s. ramanathan, learned counsel for the contesting respondents 2 to 4 invited our attention to the scheme framed in the year 1939 by the board of commissioners for the hindu religious and charitable endowments, judgment of the district judge, ramanathapuram at madurai, dated 31.3.1941 in o.s.no. 14 of 1939, judgment of this court in s.a.no. 246 of 1976, the memorandum filed by the 2nd defendant and others before the deputy commissioner, h.r. & c.e. department, madurai, in o.a.no. 80 of 1977 and the order of the 1st respondent/1st defendant in a.p.nos. 45 and 46 of 1978. he has also relied on the judgments of this court reported in the commissioner, hindu religious and charitable endowments, madras v. a.p.s. sethurama pillai : (1960)1mlj157 and ramanathan chetty v. murugappa chetty i.l.r. 27 mad. 192.19. ex.a-8 is the order of the board of commissioners for hindu religious endowments, madras dated 15.2.1933 wherein the right of the four branches of the original founder to be the hereditary trustees has been upheld. ex.a-8 is the annexure to the board's order no. 364 regarding o.a.no. 534 of 1932 of the commissioner, h.r. & c.e., madras. in the said order, reference has also been made to a previous suit in o.s.no. 279 of 1912 on the file of the subordinate judge, ramanathapuram, wherein the plaintiff's forefather and the ancestors of defendants 2 to 4 were the plaintiffs and the collector and raja of ramanathapuram were the defendants. as per the judgment in that suit, the right of the ancestors of the plaintiff and defendants 2 to 4 has been upheld.20. moreover, there was another suit in o.s.no. 14 of 1939 on the file of the district judge, ramanathapuram at madurai, filed by the plaintiff's father, fathers of defendants 2 and 4 and the 3rd defendants himself. that suit was disposed of by vesting the management in four hereditary trustees viz., the fathers of the plaintiff and defendants 2 and 4 and in the 3rd defendant himself. that suit was filed to set aside the order of the board of commissioners of the hindu religious endowments, madras, dated 27.2.1939 framing a scheme for the temple in question and also another order dated 25.4.1939 appointing defendants 2 and 3 therein as the trustees of the temple and constituting the 2nd defendant therein as the managing trustee, and for an injunction restraining the 1st defendant therein/ commissioners of hindu religious endowments from giving effect to the scheme and defendants 2 and 3 therein from acting under the scheme. under the board's proceedings, a scheme was framed on 27.2.1939. paragraph 2 of the scheme reads as follows:the management of the temple of sri valivitta ayyanar at kamuthi, mudukulathur taluk, ramnad district, and its endowments shall be administered by one hereditary trustee selected for every fasli by all hereditary trustees and two non-hereditary trustees appointed by the board.21. to modify the above scheme dated 27.2.1939, o.s.no. 14 of 1939 was filed before the district judge, ramanathapuram at madurai. clause 1 of the decree in o.s.no. 14 of 1939 reads as follows:that para 2 of the scheme dated 27.2.1939 (attached hereto) be modified by vesting the management in the four hereditary trustees and in non-hereditary trustees not exceeding five in number, appointed by the board.22. there was another suit in o.s.no. 445 of 1973 on the file of the district munsif, paramakudi, filed by the present defendants 2 to 4 against the plaintiff. ex.a-9 is the copy of the judgment in the said suit. that was a suit for permanent injunction. the present plaintiff took up the very same stand that defendants 2 to 4 have no right to act as the trustees of the temple and that he alone is the sole managing, trustee. this contention was negatived. on appeal in a.s.no. 135 of 1975 before the sub court, ramnad at madurai, the learned subordinate judge allowed the appeal and decreed the suit declaring that the plaintiffs therein are the joint trustees in possession and are entitled to be in joint management of the suit temple along with the defendant and also granted the consequential relief of permanent injunction restraining the defendant from interfering with such rights of the plaintiffs. ex.a-12 is the copy of the judgment in a.s.no. 135 of 1975 dated 8.12.1975.23. against the judgment in a.s.no. 135 of 1975, the plaintiff herein filed s.a.no. 246 of 1976 on the file of this court, sethuraman, j., by his judgment dated 23.4.1977 observed as follows:the next question that arises for consideration is as to how the rights of the parties are to be regulated for the purpose of enabling them to act as hereditary trustees in the present case. as far as the framing of a scheme is concerned, this has to be done only by the deputy commissioner for the hindu religious and charitable endowments department. section 64 of the tamil nadu act 22 of 1959 provides for framing of a scheme by the deputy commissioner. section 108 bars a civil court from doing so. the parties are, therefore, referred to the deputy commissioner for the purpose of getting a scheme framed so as to enable the joint management to be done in a peaceful and proper manner. if and when the petition is filed, the deputy commissioner, madurai, will i am sure, go into this matter expeditiously and dispose of the same within three months from the date of the filing of the petition.ex.a-13 is the copy of the judgment of this court in s.a.no. 246 of 1976.24. from a reading of the above proceedings, it is futile on the part of the plaintiff to contend that defendants 2 to 4 have no right to be the trustees of the suit temple.25. it is also useful to refer to the memo filed by defendants 2 to 4 pursuant to the directions given by this court in s.a.no. 246 of 1976. the memo has been marked as ex.b-33 dated 8.1.1978. it reads thus:this application for framing of a scheme for vali vittal ayyanar temple at kamudhi is filed under the direction of the high court of judicature, madras in s.a.no. 246 of 1976.... the petitioners are the three of the hereditary trustees while the respondent is the other one.... since it is the high court which has directed this hon'ble court (deputy commissioner) to frame a scheme, it is submitted that there is not even any need for the petition by the petitioners. the formalities required under section 64 heed not be complied with.... anyhow, even otherwise, in view of the order of the high court, this court (deputy commissioner) is entitled to take suo motu proceedings for framing a scheme. it is respectfully submitted it will be the duty as the court vested with this power and enabled under the act itself that this court exercise its powers of initation suo motu. the petitioners' application is only a reminder to this court to exercise its suo motu powers. this remainder can be oral or by means of a petition or even by any single person or persons. for this reminder there need be no five persons.... for all the above and other reasons, the technical objections that five persons have not joined in the application be over-ruled.it is thus seen from the above averments made in the memo that the said memo has been filed in view of the orders of the high court in s.a.no. 246 of 1976, the deputy commissioner is entitled to take suo motu proceedings for framing a scheme and that the deputy commissioner is vested with this power and enabled under the act itself.26. the commissioner/1st defendant passed a common order under ex.a-3 dated 22.2.1979 in a.p.nos. 45 and 46 of 1978. there is also a reference to the order of the high court in s.a.no. 246 of 1976 directing the deputy commissioner to frame a suitable scheme under section 64 of the act to regulate the management by all hereditary trustees, and pursuant to the directions of this court, the deputy commissioner initiated proceedings under section 64 of the act on the application by defendants 2 to 4. it is also mentioned in that order that since the institution was already governed by a scheme of administration settled in board's order no. 1014 dated 27.2.1939, the deputy commissioner proceeded to prescribe only the mode of administration of the temple by the respective hereditary trustees.27. we are, therefore, of the opinion that the claim of the plaintiff for exclusive management cannot stand a moments scrutiny. as already seen, the right of management was the subject matter of various disputes as could be seen from the narrations in paragraphs supra. which is also referred to and considered in detail by the learned subordinate judge. the plaintiff is also not able to place before this court a single communication wherein he is described as the sole hereditary trustee. on the other hand, the right of the three other trustees/defendants 2 to 4 has already been recognised in various judicial proceedings. the documents produced on either side and the oral evidence adduced by the parties do not at all warrant the conclusion that the plaintiff and his predecessors alone were in exclusive management of the suit temple and have prescribed their title by long and exclusive possession. it is settled law that the possession of the management of the temple affairs by one trustee can only be on behalf the co-trustees. in this case, the other trustees viz., defendants 2 to 4 and their predecessors have throughout asserted their right to be the hereditary trustees along with the plaintiff and his father. we are, therefore, of the opinion that defendants 2 to 4 are also entitled to be in management of the suit temple along with the plaintiff and the claim of the plaintiff for exclusive possession has to be necessarily rejected.28. mr. r. alagar contended that the order of the 1st defendant is vitiated in view of the fact that under section 64 of the act, an application by not less than five persons alone is maintainable and in which case alone it will attract the jurisdiction of the deputy commissioner to frame a scheme. he also pointed out that in this case only three persons viz., defendants 2 to 4 alone have filed the petition with a prayer to frame a scheme and therefore, it is not valid. we have already referred to the application exhibited as ex.b-33. it is clearly stated therein that their application was only in pursuance of the high court's judgment and that therefore, the deputy commissioner can frame a scheme suo motu. in our opinion, the 1st defendant/commissioner is right in framing a scheme vesting the management of the temple in question with the plaintiff and defendants 2 to 4 for one year by rotation. the allotment of the last turn to the plaintiff is also justified in view of the fact that he has been in management for many years past. so, in any view of the matter, the submission made by mr. s. alagar cannot at all be countenanced.29. section 64 of the act deals with the powers of the deputy commissioner to settle schemes. under this section, an officer functioning under the act has some specific restrictions and guidelines for the exercise of the power with reference to a scheme settled by a court, to be prescribed by indicating the circumstances under which alone the commissioner will be justified in either modifying or cancelling a scheme settled or ordered by a court. what is applicable to the commissioner will apply to the deputy commissioner also under section 64(5)(a) of the act.30. regarding the turn management, mr. r. alagar submitted that though the authorities prescribed turn management, they had not expressly set aside the earlier scheme which provided for a joint management by four hereditary trustees and five non-hereditary trustees. this submission has no merit. though the order of the authorities does not specifically set aside the earlier scheme providing turn management, it, in our opinion impliedly set aside the original scheme:31. in the decision in the board of commissioners for the hindu religious endowments, madras v. palaniandi muthirian 1944 m.w.n. 65 : i.l.r. 1944 mad. 534 this court has held that there is no power in the board to exclude trustees of excepted temples even for a short period from taking active part in the management of the trust. in respect of certain excepted temples which were in the management of four hereditary trustees, the hindu religious endowment board framed a scheme containing a clause appointing two additional non-hereditary trustees and providing that the temples and their endowments shall be administered by the hereditary trustees in rotation, each one of the four functioning for one fasli along with the two non-hereditary trustees. this court held that the clause was in contravention of the act so far as the hereditary trustees were concerned, as its effect was that one alone of the four hereditary trustees, to the exclusion of the others, was to function for one year in turn with the non-hereditary trustees who were to be in that position permanently. this judgment was rendered under the provisions of the madras hindu religious endowments act ii of 1927.32. in the decision in the commissioner, h.r. & c.e., madras v. a.p.s. sethuraman pillai : (1960)1mlj157 , a division bench of this court has referred to the earlier decision of this court in ramanathan chetty v. murugappa chetty i.l.r. 27 mad. 192 wherein bhashyam iyengar, j., has observed as follows:this argument proceeds on a misapprehension that when trust property is managed in rotation by co-trustees, the possession of the office by each during his turn is exclusive of or adverse to the other co-trustees. though each of the co-trustees may during his turn in the rotation be regarded in a sense as the acting or executive trustee for the year (or period)...yet he holds the office and discharge the duties thereof on behalf of all he co-trustees and not on behalf of himself alone. in fact, as a general rule, even during the turn of each co-trustee, all the co-trustees are entitled, and, in fact, are bound to act jointly in matters other than the ordinary routine duties.the later division bench in the commissioner, h.r. & c.e., madras v. a.p.s. sethuraman pillai : (1960)1mlj157 , observed as follows:it is well settled that where there are more trustees than one all would be entitled to act jointly, they would be in the position of joint trustees and form a corporate body. a scheme providing for the management of a private temple by turns amongst the members of a family would be only an arrangement inter se, but outside the family, the co-trustees would form a corporate entity. the representation of an institution could be valid or effective only if all the trustees jointly act; a fortiori the institution could be bound by an order of the board under the act only if all the trustees are impleaded to the proceedings before the board.33. it follows that whatever may be the number of trustees, the office is a joint one and the co-trustees all form as it were, one collective trustee and therefore, must, execute the duties of the office in their joint capacity. a scheme providing for management by turn amongst the members of the family would be only an arrangement inter se, but outside the family the co-trustees will form a corporate entity. the right of management is vested in all of them.34. the decision reported in o. radhakrishnan v. manickam (1974) 1 m.l.j. 179 cited by mr. r. alagar, can also be easily distinguished. in that case, this court held that as the language in section 64(5)(a) of the act stands, the commissioner has no power to modify or cancel a scheme on an application made by any person and that the power conferred on the commissioner has to be exercised suo motu only. as already pointed out, in this case, the 1st defendant/commissioner has exercised his power and jurisdiction only pursuant to the direction given by this court in s.a.no. 246 of 1976. this court has also expressly directed the parties to approach the deputy commissioner for framing a scheme, having regard to the directions given by this court, to which the parties to this action were also parties and the objects sought to be achieved by the said direction, the power of the commissioner is only capable of being exercised by him. this judgment therefore, has no application to the facts and circumstances of the case on hand.35. for all the aforesaid reasons, we are clearly of the opinion that the judgment, and decree in a.s.no. 810 of 1981, confirming the judgment and decree of the learned subordinate judge, ramanathapuram at madurai, in o.s.no. 81 of 1979, should be upheld as the appellant/plaintiff has failed to show any valid ground for interfering with the same. hence, the letters patent appeal is dismissed with costs of respondents 2 to 4/defendants 2 to 4. consequently, c.m.p.no. 2639 of 1992 is dismissed as no longer necessary.
Judgment:

A.R. Lakshmanan, J.

1. This Letters Patent Appeal is directed against the judgment of a learned single Judge of this Court in A.S.No. 810 of 1981 dated 23.1.1992 dismissing the appeal filed by the plaintiff against the judgment in O.S.No. 81 of 1979 on the file of the Subordinate Judge, Ramanathapuram at Madurai. The plaintiff is the appellant herein.

2. The short facts are, respondents 2 to 4 / defendants 2 to 4 filed O.S.No. 445 of 1973 on the file of the District Munsif Court, Paramakudi, for permanent injunction restraining the appellant/plaintiff from interfering with their management of the suit temple. That suit was dismissed on 31.3.1975. Defendants 2 to 4 filed A.S.No. 135 of 1975 in the Sub Court, Ramanathapuram at Madurai. They filed I.A.No. 317 of 1975 in that appeal for amendment of the plaint for adding the relief of declaration that they are joint trustees and are in joint possession. That application was allowed and the appeal was also allowed thereby decreeing the suit and holding that defendants 2 to 4 are joint trustees and that they are entitled to an injunction as prayed for. The plaintiff filed S.A.No. 246 of 1976 in this Court, which was dismissed by this Court on 23.4.1977. In the second appeal, this Court has directed the parties to approach the Deputy Commissioner, H.R. & C.E. Department, for framing a scheme.

3. After the judgment in S.A.No. 246 of 1976, defendants 2 to 4 filed O.A.No. 80 of 1977 before the Deputy Commissioner, H.R. & C.E. Department, Madurai, for modification of the scheme. The Deputy Commissioner modified the scheme by order dated 27.2.1978 by allowing each trustee to act solely to the exclusion of others. The plaintiff filed A.P.No. 46 of 1978 before the Commissioner of H.R. & C.E. Department while defendants 2 to 4 filed A.P.No. 45 of 1978. The first turn was given to the appellant by the Deputy Commissioner which was challenged in the appeal before the 1st defendant/Commissioner. The 1st defendant dismissed the appeal filed by the plaintiff and allowed the appeal filed by defendants 2 to 4, on 22.2.1979. Thereafter, the plaintiff filed O.S.No. 81 of 1979 before the Sub Court, Ramanathapuram at Madurai, for setting aside the order of the Deputy Commissioner dated 27.2.1978. That suit was dismissed on 24.2.1981. The plaintiff filed further appeal in this Court in A.S.No. 810 of 1981, which was dismissed by a learned single Judge on 23.1.1992. Aggrieved by the same, the plaintiff has filed the present Letters Patent Appeal.

4. Defendants 2 to 4, as already noticed, moved the Hindu Religious and Charitable Endowment Department by filing O.A.No. 80 of 1977 before the Deputy Commissioner, Madurai. The plaintiff objected to the proceeding on various grounds. The Deputy Commissioner framed a scheme for management of the temple on 27.2.1978. Under the scheme, a turn management by rotation was provided as follows:

(a) From 1.4.1978 to 31.3.1979 by the plaintiff.

(b) From 1.4.1979 to 31.3.1980 by the 2nd defendant.

(c) From 1.4.1980 to 31.3.1981 by the 3rd defendant.

(d) From 1.4.1981 to 31.3.1982 by the 4th defendant.

From 1.4.1982 by successive turn of management among the parties.

5. Aggrieved by this order, the plaintiff and defendants 2 to 4 separately preferred appeals to the 1st defendant. The 1st defendant by his order dated 22.2.1979 practically confirmed the order of the Deputy Commissioner with the modification regarding turn management.

(a) From 1.4.1978 to 31.3.1980 by the 2nd defendant.

(b) From 1.4.1980 to 31.3.1981 by the 3rd defendant.

(c) From 1.4.1981 to 31.3.1982 by the 4th defendant.

(d) From 1.4.1982 to 31.3.1983 by the plaintiff.

6. The order of the Deputy Commissioner and the Commissioner, H.R. & C.E. Department are challenged as wrong, erroneous and untenable by the plaintiff on the following grounds:

(a) It is established in the case that for about 30 years, the plaintiff alone was in possession of the temple and its properties and was managing the temple and its affairs to the exclusion of all others. Prior to the plaintiff, his father Karuppa Velar was in exclusive possession and management of the temple and its properties and affairs, for over 21 years. By such long, continuous and exclusive possession and management of the temple, its affairs and its properties, the plaintiff had prescribed an indefeasable right to exclusive and sole management of the temple as its sole hereditary trustee.

(b) By such long, exclusive and adverse possession and management of the temple and its properties, the right and interest of all others who have or who claimed or who could have claimed any right to the office of trusteeship got extinguished. Defendants 2 to 4 had no right to the office of trusteeship and even if they had any right, such right had become extinguished by the ouster and adverse possession of the plaintiff and his father for over the statutory period.

(c) The Deputy Commissioner and the Commissioner, H.R. & C.E. Department had no jurisdiction to decide a civil dispute whether defendants 2 to 4 had subsisting right to the Office of trusteeship and that without first deciding that dispute, the Deputy Commissioner and the Commissioner should not have exercised their powers under Section 64 of the Hindu Religious and Charitable Endowments Act (hereinafter referred to as the Act).

(d) In the prior proceedings in O.S.No. 445 of 1973, the question whether defendants 2 to 4 had any subsisting right to the office of the trusteeship was not in issue and therefore, any decision rendered in the prior proceedings will not be of any help to decide the specific dispute.

(e) The Deputy Commissioner and the Commissioner, H.R. & C.E. Department have failed to appreciate that there was already a scheme for proper management of the temple in O.A.No. 69 of 1938, framed by the H.R. & C.E. Board under Act 2 of 1927. Under that scheme, the plaintiff was in management of the temple as the sole hereditary trustee. Unless it is shown and established that either the existing scheme was inappropriate to cover the new set of facts or that it could not be worked out under the changed circumstances or that new circumstances had arisen and mat the scheme did not envisage such new circumstances, the existing scheme should not be set aside or modified. But, the orders of the Deputy Commissioner and the Commissioner were silent on these aspects. There is no order to the effect that the existing scheme was set aside. The effect is, that there would be two different schemes providing two different courses of management of the temple which will lead to utter confusion and the institution will suffer great and irreparable loss and injury.

(f) The Deputy Commissioner and the Commissioner of H.R. & C.E. Department can exercise powers under Section 64 of the Act only on petition filed by five or more persons. In the instant case, the petition filed by three persons alone was defective and was not maintainable.

(g) Defendants 2 to 4 are the lessees of the temple lands. As such, they were disqualified to be the trustees.

(h) Defendants 2 and 3 and the father of the 4th defendant claimed in the settlement proceedings that the lands that were cultivated by them belonged only to them and that the suit temple was not entitled to any right in them. However, patta was granted to the suit temple. By such wilful denial of title of the suit temple to the properties and by setting up a title adverse to that of the suit temple, defendants 2 to 4 had forfeited their right to the office of trusteeship even if they had any right to the office:

(i) Being a deaf and mute, the 4th defendant is disqualified to function as a trustee of the suit temple.

(j) The Commissioner, H.R. & C.E. Department has not given any reason for negativing the plaintiff of his right to first turn of the management. The fact that the plaintiff had been in continuous management of the temple was no reason to deny him of his right to first turn management. The plaintiff being the member of the first group or Vagai of the family, he has an indefeasable and undeniable right to the first turn of the management.

7. For the above and other reasons, the suit was laid by the plaintiff for setting aside the order of the Deputy Commissioner, H.R. & C.E. Department, Madurai, and of the Commissioner, H.R. & C.E. Department, Madras, and for other reliefs.

8. The plaintiff prayed for the following reliefs in the suit:

(a) The order of the Commissioner, H.R. & C.E. Department, Madras, made on 22.2.1979 in A.P. Nos. 45 and 46 of 1978, modifying the order of the Deputy Commissioner, H.R. & C.E. Department, Madurai, dated 27.2.1978 in O.A. No. 80 of 1977, whereby a scheme was framed for management of the suit temple, be set aside.

(b) The contesting defendants do pay the plaintiff the costs of the suit and

(c) For such other and further reliefs as this Court may deem fit and proper in the nature and circumstances of the case.

9. The 1st defendant filed a written statement denying the allegations contained in the plaint as false. The plaintiff's claim that he was in exclusive management of the temple as its hereditary trustee and that the Department had recognised him as the sole trustee and was also collecting contribution and audit fees are all denied as false. It is stated that defendants 2 to 4 are also the descendants of the founder of the temple and that their fore-fathers had been in management of the temple and its properties. It is contended that the scheme framed by the Deputy Commissioner is correct and the Department is empowered to frame a scheme. This Court has specifically stated that the scheme has to be passed only by the Deputy Commissioner, H.R. & C.E. Department. It is explicit from this Court's order that defendants 2 to 4 are also the hereditary trustees and as such, they are also entitled to the management of the suit temple. The claim of the plaintiff as the sole hereditary trustee is untenable. The further claim of adverse possession and extinguishment of trusteeship as against defendants 2 to 4 is also false and baseless. It is, therefore, contended by the 1st defendant, that the scheme framed is valid and is in accordance with the provisions of the Act and the Rules and that the Deputy Commissioner is empowered to frame a scheme, which is binding upon the plaintiff. The plaintiff having submitted to the jurisdiction is estopped from disputing the jurisdiction of the Deputy Commissioner to frame a scheme under Section 64 of the Act.

10. Defendants 2 to 4 filed a written statement contending that the suit temple was not founded by the ancestors of the plaintiff but founded by that of defendants 2 to 4. There were four branches of the founders. Defendants 2 to 4 are the descendants of the original founder and that the successors of the founder have been managing the temple and its properties. All the four branches have been jointly managing. The plaintiff is the adopted son of Karuppana Velar. It is false to state that the plaintiff assumed charge on the death of his father. It is denied that the plaintiff was in sole and exclusive management of the temple and its properties and affairs. The plaintiff is estopped from denying the relationship and the fact that defendants 2 to 4 are the descendants of the original founder. It is false to state that defendants 2 to 4 have no right and that their forefather never claimed any right of trusteeship. Defendants 2 to 4 are the descendants and that they are lawful trustees of the temple entitled to be in management of the temple and its properties. In the face of the prior proceedings and the decision of the appellate court in A.S.No. 135 of 1975 on the file of the Subordinate Judge, Ramanathapuram at Madurai, and that of this Court in S.A.No. 246 of 1976, it is futile for the plaintiff to deny the right of defendants 2 to 4, Further, the present suit is barred by the principle of res judicata by virtue of the decision of the Sub Court, Ramanathapuram at Madurai in A.S.No. 135 of 1975 and that of this Court in S.A.No. 246 of 1976. The plaintiff is also barred by virtue of the provisions of Order 2, Rule 2 of the Code of Civil Procedure in making this kind of claim in the present suit viz., case of prescriptive title, ouster and adverse possession. Therefore, defendants 2 to 4 prayed for the dismissal of the suit.

11. On the above pleadings, the trial court framed the following issues for trial:

1. Whether the plaintiff had prescribed right to exclusive and sole management of the temple as its sole hereditary trustee?

2. Whether defendants 2 to 4 had right to office of trusteeship?

3. Whether the order of the Commissioner in A.P.Nos. 45 and 46 of 1978 modifying the order of the Deputy Commissioner is liable to be set aside?

4. Whether the plaintiff's suit is barred by the principle of res judicata?

5. Whether the plaintiff is estopped from disputing the jurisdiction of the Deputy Commissioner?

6. Whether the suit is barred by limitation?

7. Whether the suit is bad for want of notice under Section 80 of the Code of Civil Procedure?

8. To what relief is the plaintiff entitled?

12. The plaintiff examined himself as P.W.1 and marked Exs.A-1 to A-22 on his side. The 2nd defendant examined himself as D.W.1 and examined one Velu as D.W.2. Exs.B-1 to B-33 were marked on the side of the defendants.

13. The learned Subordinate Judge, on a consideration of the entire materials placed before him held on Issue No. 2 that defendants 2 to 4 had right to the office of trusteeship. On Issue No. 1, the learned Subordinate Judge held that by no stretch of imagination it can be said that the plaintiff has prescribed his title for the exclusive management of the temple by adverse possession or ouster. On Issue No. 4, the learned trial Judge held that the plea of the plaintiff that he is not barred by res judicata cannot be accepted. On Issue No. 5, the trial court observed that the 'plaintiff himself has submitted to the jurisdiction of the Deputy Commissioner, H.R. & C.E. Department, Madurai and therefore, he cannot be now heard to question the jurisdiction of the Deputy Commissioner. However, this issue was not pressed by the plaintiff himself at the time of hearing of the suit. On Issue No. 3, the trial court held that the Commissioner, H.R. & C.E. Department is right in framing a scheme vesting the management of the suit temple by turn for one year in the hands of each of the four trustees by rotation and that the allotment of the last turn to the plaintiff is also justified in view of the fact that he has been in management for many years past. Therefore, the trial court held that the order of the Commissioner in Ex.A-3 cannot be held invalid. On Issue No. 6, the learned Subordinate Judge rejected the contention of the 1st defendant/H.R. & C.E. Department that the suit is barred by limitation. Since the suit has been filed by the plaintiff on 26.3.1979, the suit is in time. On Issue No. 7, the trial court held that since the suit is filed by virtue of the provisions made in the Act, under which a statutory right is conferred upon the person concerned, who is aggrieved by the orders of the Commissioner, H.R. & C.E. Department, no notice under Section 80 of the Code of Civil Procedure need be given. In the result, the learned Subordinate Judge dismissed the suit with costs.

14. Aggrieved by the judgment and decree of the trial court the unsuccessful plaintiff filed A.S.No. 810 of 1981 in this Court reiterating the very same contentions. It is contended that the trial court has misinterpreted Exs.A-9, A-12 and A-13 for its conclusion on Issue No. 2. The trial court has also failed to appreciate Exs.A-4 to A-7, A-10, A-11 and A-14 to A-17, which would establish that the plaintiff and his father alone were absolutely in possession and enjoyment of the suit temple for well over the statutory period. It is further raised in the grounds of first appeal that the scheme framed by the Deputy Commissioner, H.R. & C.E. Department, Madurai, On an application made by defendants 2 to 4 alone is clearly not maintainable in law, the same not having been made with the requirements of Section 64 of the Act.

15. A. Abdul Hadi, J., rejected the contentions of the learned Counsel for the appellant/plaintiff as without any substance. The learned Judge held that Section 64(5)(a) of the Act alone will apply which does not stipulate the requirement of five persons being applicants for modification of the scheme. On the question of the plaintiff's claim of prescriptive title, the learned Judge rejected the same by accepting the finding of the trial court in paragraph 8 of its judgment relying on several documents including Ex.A-12 judgment. The learned Judge held that the trial court has come to the right conclusion that by no stretch of imagination it could be said that the plaintiff has prescribed his title for exclusive management of the temple. Learned Judge has also rejected the contention of the plaintiff regarding the turn management. According to the plaintiff appellant, the Commissioner, H.R. & C.E. Department, ought not to have given the first turn to defendants 2 to 4 on the ground that the plaintiff was mismanaging the suit temple. On a consideration of the facts and circumstances of the case and the arguments on either side, the learned single Judge came to the conclusion that there is absolutely no substance in any of the contentions raised by the learned Counsel for the appellant and accordingly dismissed the appeal with costs. Dissatisfied with the judgment of the learned single Judge, the plaintiff has filed the present Letters Patent Appeal.

16. We have heard the arguments of Mr. R. Alagar, learned Senior Counsel for the appellant/plaintiff and Mr. S. Ramanathan, learned Counsel for the contesting respondents 2 to 4. We have also perused the documents filed on either side and the judgments of the learned Subordinate Judge and the learned single Judge of this Court.

17. Mr. Alagar has addressed arguments mainly on three grounds, viz.,

(i) The Deputy Commissioner, H.R. & C.E. Madurai, has no jurisdiction to modify the scheme on an application by any person and that the power conferred on the Commissioner, H.R. & C.E., has to be exercised suo motu only. For this proposition, he cited the decision in O. Radhakrishnan v. Manickam : (1974)2MLJ179 .

(ii) The turn management is impermissible amongst the trustees and such a provision made in the scheme is invalid. For this proposition, he relied on the judgment of this Court in The Board of Commissioners for the Hindu Religious Endowments, Madras v. Palaniandi Muthirian (1944) M.W.N. 65: I.L.R. 1944 Mad. 534.

(iii) The mandatory provision of Section 64(1) of the Act was not complied with by all the trustees.

18. Arguing contra, Mr. S. Ramanathan, learned Counsel for the contesting respondents 2 to 4 invited our attention to the scheme framed in the year 1939 by the Board of Commissioners for the Hindu Religious and Charitable Endowments, judgment of the District Judge, Ramanathapuram at Madurai, dated 31.3.1941 in O.S.No. 14 of 1939, judgment of this Court in S.A.No. 246 of 1976, the memorandum filed by the 2nd defendant and others before the Deputy Commissioner, H.R. & C.E. Department, Madurai, in O.A.No. 80 of 1977 and the order of the 1st respondent/1st defendant in A.P.Nos. 45 and 46 of 1978. He has also relied on the judgments of this Court reported in The Commissioner, Hindu Religious and Charitable Endowments, Madras v. A.P.S. Sethurama Pillai : (1960)1MLJ157 and Ramanathan Chetty v. Murugappa Chetty I.L.R. 27 Mad. 192.

19. Ex.A-8 is the Order of the Board of Commissioners for Hindu Religious Endowments, Madras dated 15.2.1933 wherein the right of the four branches of the original founder to be the hereditary trustees has been upheld. Ex.A-8 is the annexure to the Board's Order No. 364 regarding O.A.No. 534 of 1932 of the Commissioner, H.R. & C.E., Madras. In the said Order, reference has also been made to a previous suit in O.S.No. 279 of 1912 on the file of the Subordinate Judge, Ramanathapuram, wherein the plaintiff's forefather and the ancestors of defendants 2 to 4 were the plaintiffs and the Collector and Raja of Ramanathapuram were the defendants. As per the judgment in that suit, the right of the ancestors of the plaintiff and defendants 2 to 4 has been upheld.

20. Moreover, there was another suit in O.S.No. 14 of 1939 on the file of the District Judge, Ramanathapuram at Madurai, filed by the plaintiff's father, fathers of defendants 2 and 4 and the 3rd defendants himself. That suit was disposed of by vesting the management in four hereditary trustees viz., the fathers of the plaintiff and defendants 2 and 4 and in the 3rd defendant himself. That suit was filed to set aside the order of the Board of Commissioners of the Hindu Religious Endowments, Madras, dated 27.2.1939 framing a scheme for the temple in question and also another order dated 25.4.1939 appointing defendants 2 and 3 therein as the trustees of the temple and constituting the 2nd defendant therein as the Managing Trustee, and for an injunction restraining the 1st defendant therein/ Commissioners of Hindu Religious Endowments from giving effect to the scheme and defendants 2 and 3 therein from acting under the scheme. Under the Board's Proceedings, a scheme was framed on 27.2.1939. Paragraph 2 of the scheme reads as follows:

The management of the temple of Sri Valivitta Ayyanar at Kamuthi, Mudukulathur Taluk, Ramnad District, and its endowments shall be administered by one hereditary trustee selected for every fasli by all hereditary trustees and two non-hereditary trustees appointed by the Board.

21. To modify the above scheme dated 27.2.1939, O.S.No. 14 of 1939 was filed before the District Judge, Ramanathapuram at Madurai. Clause 1 of the decree in O.S.No. 14 of 1939 reads as follows:

That para 2 of the scheme dated 27.2.1939 (attached hereto) be modified by vesting the management in the four hereditary trustees and in non-hereditary trustees not exceeding five in number, appointed by the Board.

22. There was another suit in O.S.No. 445 of 1973 on the file of the District Munsif, Paramakudi, filed by the present defendants 2 to 4 against the plaintiff. Ex.A-9 is the copy of the judgment in the said suit. That was a suit for permanent injunction. The present plaintiff took up the very same stand that defendants 2 to 4 have no right to act as the trustees of the temple and that he alone is the sole Managing, Trustee. This contention was negatived. On appeal in A.S.No. 135 of 1975 before the Sub Court, Ramnad at Madurai, the learned Subordinate Judge allowed the appeal and decreed the suit declaring that the plaintiffs therein are the joint trustees in possession and are entitled to be in joint management of the suit temple along with the defendant and also granted the consequential relief of permanent injunction restraining the defendant from interfering with such rights of the plaintiffs. Ex.A-12 is the copy of the judgment in A.S.No. 135 of 1975 dated 8.12.1975.

23. Against the judgment in A.S.No. 135 of 1975, the plaintiff herein filed S.A.No. 246 of 1976 on the file of this Court, Sethuraman, J., by his judgment dated 23.4.1977 observed as follows:

The next question that arises for consideration is as to how the rights of the parties are to be regulated for the purpose of enabling them to act as hereditary trustees in the present case. As far as the framing of a scheme is concerned, this has to be done only by the Deputy Commissioner for the Hindu Religious and Charitable Endowments Department. Section 64 of the Tamil Nadu Act 22 of 1959 provides for framing of a scheme by the Deputy Commissioner. Section 108 bars a civil court from doing so. The parties are, therefore, referred to the Deputy Commissioner for the purpose of getting a scheme framed so as to enable the joint management to be done in a peaceful and proper manner. If and when the petition is filed, the Deputy Commissioner, Madurai, will I am sure, go into this matter expeditiously and dispose of the same within three months from the date of the filing of the petition.

Ex.A-13 is the copy of the judgment of this Court in S.A.No. 246 of 1976.

24. From a reading of the above proceedings, it is futile on the part of the plaintiff to contend that defendants 2 to 4 have no right to be the trustees of the suit temple.

25. It is also useful to refer to the memo filed by defendants 2 to 4 pursuant to the directions given by this Court in S.A.No. 246 of 1976. The memo has been marked as Ex.B-33 dated 8.1.1978. It reads thus:

This application for framing of a scheme for Vali Vittal Ayyanar Temple at Kamudhi is filed under the direction of the High Court of Judicature, Madras in S.A.No. 246 of 1976.... The petitioners are the three of the hereditary trustees while the respondent is the other one.... Since it is the High Court which has directed this Hon'ble Court (Deputy Commissioner) to frame a scheme, it is submitted that there is not even any need for the petition by the petitioners. The formalities required under Section 64 heed not be complied with.... Anyhow, even otherwise, in view of the order of the High Court, this Court (Deputy Commissioner) is entitled to take suo motu proceedings for framing a scheme. It is respectfully submitted it will be the duty as the court vested with this power and enabled under the Act itself that this Court exercise its powers of initation suo motu. The petitioners' application is only a reminder to this Court to exercise its suo motu powers. This remainder can be oral or by means of a petition or even by any single person or persons. For this reminder there need be no five persons.... For all the above and other reasons, the technical objections that five persons have not joined in the application be over-ruled.

It is thus seen from the above averments made in the memo that the said memo has been filed in view of the orders of the High Court in S.A.No. 246 of 1976, The Deputy Commissioner is entitled to take suo motu proceedings for framing a scheme and that the Deputy Commissioner is vested with this power and enabled under the Act itself.

26. The Commissioner/1st defendant passed a Common Order under Ex.A-3 dated 22.2.1979 in A.P.Nos. 45 and 46 of 1978. There is also a reference to the order of the High Court in S.A.No. 246 of 1976 directing the Deputy Commissioner to frame a suitable scheme under Section 64 of the Act to regulate the management by all hereditary trustees, and pursuant to the directions of this Court, the Deputy Commissioner initiated proceedings under Section 64 of the Act on the application by defendants 2 to 4. It is also mentioned in that order that since the institution was already governed by a scheme of administration settled in Board's Order No. 1014 dated 27.2.1939, the Deputy Commissioner proceeded to prescribe only the mode of administration of the temple by the respective hereditary trustees.

27. We are, therefore, of the opinion that the claim of the plaintiff for exclusive management cannot stand a moments scrutiny. As already seen, the right of management was the subject matter of various disputes as could be seen from the narrations in paragraphs supra. which is also referred to and considered in detail by the learned Subordinate Judge. The plaintiff is also not able to place before this Court a single communication wherein he is described as the sole hereditary trustee. On the other hand, the right of the three other trustees/defendants 2 to 4 has already been recognised in various judicial proceedings. The documents produced on either side and the oral evidence adduced by the parties do not at all warrant the conclusion that the plaintiff and his predecessors alone were in exclusive management of the suit temple and have prescribed their title by long and exclusive possession. It is settled law that the possession of the management of the temple affairs by one trustee can only be on behalf the co-trustees. In this case, the other trustees viz., defendants 2 to 4 and their predecessors have throughout asserted their right to be the hereditary trustees along with the plaintiff and his father. We are, therefore, of the opinion that defendants 2 to 4 are also entitled to be in management of the suit temple along with the plaintiff and the claim of the plaintiff for exclusive possession has to be necessarily rejected.

28. Mr. R. Alagar contended that the order of the 1st defendant is vitiated in view of the fact that under Section 64 of the Act, an application by not less than five persons alone is maintainable and in which case alone it will attract the jurisdiction of the Deputy Commissioner to frame a scheme. He also pointed out that in this case only three persons viz., defendants 2 to 4 alone have filed the petition with a prayer to frame a scheme and therefore, it is not valid. We have already referred to the application exhibited as Ex.B-33. It is clearly stated therein that their application was only in pursuance of the High Court's judgment and that therefore, the Deputy Commissioner can frame a scheme suo motu. In our opinion, the 1st defendant/Commissioner is right in framing a scheme vesting the management of the temple in question with the plaintiff and defendants 2 to 4 for one year by rotation. The allotment of the last turn to the plaintiff is also justified in view of the fact that he has been in management for many years past. So, in any view of the matter, the submission made by Mr. S. Alagar cannot at all be countenanced.

29. Section 64 of the Act deals with the powers of the Deputy Commissioner to settle schemes. Under this section, an officer functioning under the Act has some specific restrictions and guidelines for the exercise of the power with reference to a scheme settled by a court, to be prescribed by indicating the circumstances under which alone the Commissioner will be justified in either modifying or cancelling a scheme settled or ordered by a court. What is applicable to the Commissioner will apply to the Deputy Commissioner also under Section 64(5)(a) of the Act.

30. Regarding the turn management, Mr. R. Alagar submitted that though the authorities prescribed turn management, they had not expressly set aside the earlier scheme which provided for a joint management by four hereditary trustees and five non-hereditary trustees. This submission has no merit. Though the order of the authorities does not specifically set aside the earlier scheme providing turn management, it, in our opinion impliedly set aside the original scheme:

31. In the decision in The Board of Commissioners for the Hindu Religious Endowments, Madras v. Palaniandi Muthirian 1944 M.W.N. 65 : I.L.R. 1944 Mad. 534 this Court has held that there is no power in the Board to exclude trustees of excepted temples even for a short period from taking active part in the management of the trust. In respect of certain excepted temples which were in the management of four hereditary trustees, the Hindu Religious Endowment Board framed a scheme containing a clause appointing two additional non-hereditary trustees and providing that the temples and their endowments shall be administered by the hereditary trustees in rotation, each one of the four functioning for one fasli along with the two non-hereditary trustees. This Court held that the clause was in contravention of the Act so far as the hereditary trustees were concerned, as its effect was that one alone of the four hereditary trustees, to the exclusion of the others, was to function for one year in turn with the non-hereditary trustees who were to be in that position permanently. This judgment was rendered under the provisions of the Madras Hindu Religious Endowments Act II of 1927.

32. In the decision in The Commissioner, H.R. & C.E., Madras v. A.P.S. Sethuraman Pillai : (1960)1MLJ157 , a Division Bench of this Court has referred to the earlier decision of this Court in Ramanathan Chetty v. Murugappa Chetty I.L.R. 27 Mad. 192 wherein Bhashyam Iyengar, J., has observed as follows:

This argument proceeds on a misapprehension that when trust property is managed in rotation by co-trustees, the possession of the office by each during his turn is exclusive of or adverse to the other co-trustees. Though each of the co-trustees may during his turn in the rotation be regarded in a sense as the acting or executive trustee for the year (or period)...yet he holds the office and discharge the duties thereof on behalf of all he co-trustees and not on behalf of himself alone. In fact, as a general rule, even during the turn of each co-trustee, all the co-trustees are entitled, and, in fact, are bound to act jointly in matters other than the ordinary routine duties.

The later Division Bench in The Commissioner, H.R. & C.E., Madras v. A.P.S. Sethuraman Pillai : (1960)1MLJ157 , observed as follows:

It is well settled that where there are more trustees than one all would be entitled to act jointly, they would be in the position of joint trustees and form a corporate body. A scheme providing for the management of a private temple by turns amongst the members of a family would be only an arrangement inter se, but outside the family, the co-trustees would form a corporate entity. The representation of an institution could be valid or effective only if all the trustees jointly act; a fortiori the institution could be bound by an order of the Board under the Act only if all the trustees are impleaded to the proceedings before the Board.

33. It follows that whatever may be the number of trustees, the office is a joint one and the co-trustees all form as it were, one collective trustee and therefore, must, execute the duties of the office in their joint capacity. A scheme providing for management by turn amongst the members of the family would be only an arrangement inter se, but outside the family the co-trustees will form a corporate entity. The right of management is vested in all of them.

34. The decision reported in O. Radhakrishnan v. Manickam (1974) 1 M.L.J. 179 cited by Mr. R. Alagar, can also be easily distinguished. In that case, this Court held that as the language in Section 64(5)(a) of the Act stands, the Commissioner has no power to modify or cancel a scheme on an application made by any person and that the power conferred on the Commissioner has to be exercised suo motu only. As already pointed out, in this case, the 1st defendant/Commissioner has exercised his power and jurisdiction only pursuant to the direction given by this Court in S.A.No. 246 of 1976. This Court has also expressly directed the parties to approach the Deputy Commissioner for framing a scheme, having regard to the directions given by this Court, to which the parties to this action were also parties and the objects sought to be achieved by the said direction, the power of the Commissioner is only capable of being exercised by him. This judgment therefore, has no application to the facts and circumstances of the case on hand.

35. For all the aforesaid reasons, we are clearly of the opinion that the judgment, and decree in A.S.No. 810 of 1981, confirming the judgment and decree of the learned Subordinate Judge, Ramanathapuram at Madurai, in O.S.No. 81 of 1979, should be upheld as the appellant/plaintiff has failed to show any valid ground for interfering with the same. Hence, the Letters Patent Appeal is dismissed with costs of respondents 2 to 4/defendants 2 to 4. Consequently, C.M.P.No. 2639 of 1992 is dismissed as no longer necessary.