V S THIAGARAJA MUDALIAR BRAHADEESWARAN SHANMUGHA SUNDRAM Vs. BAVA C CHOKKAPPA MUDALIAR:BAVA C CHOKKAPPA MUDALIAR

JUDGEMENT

(1.) These two appeals by special leave arise out of a decision of the Religious Endowment Board (hereinafter called the Board) constituted under Section 10 of the Madras Hindu Religious Endowments Act, 1926 (Madras Act No. II of 1926) hereinafter called the Act. The Board gave a decision in a dispute in C. A. no. 279 of 1946 and the principal contention with which we are concerned in these appeals is whether the Board had jurisdiction to decide that dispute. Other points were dealt with in the course of litigation, but since the appellants are entitled to succeed on the ground that the Board had no jurisdiction to entertain the dispute, it will not be necessary for us to deal with the other points. We shall, therefore, confine ourselves to the facts which bear upon the point.

(2.) The temple of Sri Tyagarajaswami at Tiruvarur in Tanjore District is a well-known, ancient temple of the South. There are 13 kattalais attached to the temple - one of such kattalais being the Ulthurai Kattalai. The kattalai looks after the:worship and festivals in thetemple. The management of this Ulthurai kattalai was vested in two Mudaliar families. One was the Bava family and the other was the Vadapathimangalam family. The two families held the office of the trusteeship by hereditary succession. Prior to 1943, the hereditary trustee representing the Bava family was one Vaithilinga Mudaliar and the other trustee representing the Vadapathimangalam family was Thiagaraja Mudaliar. The letter is one of the principle parties to this litigation but the litigation was really reference to the succession to the office in the Bava family Vaithilinga's death. Vaithilinga died in 1943 leaving behind him surviving (1) his widow Pappu Ammal (2) a daughter Shivakami Ammal, by another wife (3) a son of this daughter named Brahadeeswaran (4) and (5) two divided brothers Gopalswami Mudaliar and Panchapakesa Mudaliar.

(3.) The office of the trustee of the temple was an office of prestige. After Vaithilinga's death Gopalaswami Mudaliar tried to instal himself as the trustee in the place of his deceased brother. But Thiagaraja Mudaliar, the other trustee, did not permit him to work with as a co-trustee. So Gopalaswami complained to the Board by an application dated April 22, 1944 purporting to be under Section 18 of the Act. Thiagaraja contested the application pointing out that Gopalaswami could not succeed as the hereditary trustee and that only the widow of Vaithilinga viz. Pappu Ammal, should be regarded as the trustee after Vaithilinga's death. Thereafter on February 5, 1945 Gopalaswami applied under Section 42 of the Act for his appointment as an interim trustee pending the dispute about succession being resolved in a Civil Court. He said he was the senior most male member in the Bava family and was in every day a fit and proper person to be appointed as interim trustee till his succession to the trusteeship is declared by the Court. This application under Section 42 also was contested by Thiagaraja Mudaliar and Pappu Ammal and on November 13, 1945 the Board dismissed his application under Section 42 pointing out that since the right to succession to Vaithilinga Mudaliar was in dispute the proper course for Gopalaswami was to establish his right in a Civil Court. The Board also held that there was already a trustee functioning, assisted by the executive officer of the Devasthan and, hence, it was not necessary to appoint Gopalaswami as a fit person under Section 42. Thereafter Gopalaswami commenced two proceedings. On April 3, 1946 he filed O. S. No. 117/1946 in the Court of District Munsif, Tiruvarur for a declaration that after the death of Vaithilinga his brother, he was entitled to the office of the hereditary trustee to the exclusion of Vaithilinga's widow Pappu Ammal. To this suit he joined Pappu Ammal, his younger brother Panchapakesa and Thiagaraja Mudaliar, the other trustee as co-defendants. The other proceeding was before the Board purporting to be one under Section 84 of the Act. This application before the Board was filed on April 11, 1946. His contention before the Board may be set out in his own words:"The last hereditary trustee was Bava C. Vaithilinga Mudaliar the elder brother of the petitioner and he died on April 6, 1943. On his death the petitioner (Gopalswami) has succeeded to the office and is the next hereditary trustee. According to the custom prevailing in the petitioner's family and in the Ulthurai Kattalai all along the hereditary trusteeship is only with male members and with the senior male member thereunder." To this application Pappu Ammal and his younger brother Panchapakesa were made respondents. The prayer in the application was that the Honourable Board should enquire into the matter and declare that the petitioner Gopalaswami was the hereditary trustee of Ulthurai Kattalai in succession to late Bava Vaithilinga Mudaliar.