COMMISSIONER HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS ADMN DEPARTMENT MADRAS Vs. G KUPPUSAMI MUDALIAR

JUDGEMENT

(1.) THE first two defendants viz. the Commissioner and the assistant Commissioner of Hindu Religious and Charitable Endowments (Administration)Department are the appellants. THE suit filed by the two plaintiffs under Sec. 70 of the Hindu Religious and Charitable Endowments Act, hereinafter called'the Act', has been decreed and hence this appeal.

(2.) THE case of the plaintiff is that the temple dedicated to Sri Chenroya Perumal in Dhatti-manipalli village, Gudiyatham Taluk, which is a small village temple is an ancient one and the origin of it is not traceable. THE temple is possessed of 1. 60 acres in Survey No. 211/1 and 0. 22 cents with 8 mango trees in Survey No. 74. THE annual income from the properties would be rs. 120. THE plaintiffs and their predecessors have been doing pooja in the temple and also were managing the temple affairs. THEy are thus poojaris-cum-trustees of the temple. Long ago one Thandavar-aya Gounder was poojari-cum-trustee of the temple and after his death his son Ponnappa Gounder succeeded as poojari-cum-trustee. He functioned in that capacity till 1952 when he died. Since Ponnappa Gounder had no male issues he adopted his sister's son Govindappa Mudaliar as his son. THE plaintiffs belong to Vellala Gounder and they are called both as Gounders and Mudaliars. Govindappa Mudaliar took over the Poojariship and the management of the affairs of the temple. He died on 21. 1. 1975, leaving behind the plaintiffs, his sons to succeed as poojaris-cum-hereditary trustees, and the office of the hereditary trusteeship of the temple had been vested in the plaintiffs'family from time immemorial. THE plaintiffs filed a petition O. A. No. 79 of 1972 before the Deputy commissioner, Hindu Religious and Charitable Endowments (Administration)Department under Sec. 63 (b) of the Act to declare them as hereditary trustees of the suit temple but the petition was dismissed by the Deputy Commissioner. THE plaintiffs preferred an appeal also to the Commissioner, A. P. 35 of 1976 and the appeal also was dismissed. Since defendants 3 and 4 are objecting to the claim of the plaintiffs to the hereditary trusteeship they were impleaded as parties before the Commissioner. THErefore, the plaintiffs have filed the suit to set aside the order of the Commissioner and for declaration that the plaintiffs are the hereditary trustees.

(3.) ACCORDING to the plaintiffs Ponnappa Gounder was poojari-cum-hereditary trustee of the temple until his death in 1952 and then his adopted son Govindappa Mudaliar became trustee till his death on 21. 1. 1975 and thereafter his sons, the plaintiffs, are the trustees, and thus for three generations the plaintiffs and their family have been the trustees and therefore the plaintiffs are hereditary trustees. Ex. A-10 is a copy of'a' registrar which shows that Ponnappa Gounder was acting as trustee of the temple. Ex. A-11, dated 17. 7. 1948 is a registration copy of the sale deed executed by one Kichana Naidu in favour of Ponnappa Gounder wherein Ponnappa gounder has been described as trustee (Dharmakarta) of the temple. From these two documents it would appear that Ponnappa Gounder was trustee (it may be noted that it is not mentioned that Ponnappa Gounder was a hereditary trustee ). If Ponnappa Gounder was a trustee and his adopted son Govindappa Mudaliar was also a trustee and then his sons-the plaintiffs are also trustees then of course for three generations the plaintiffs'family members having been trustees, the plaintiffs can claim to be hereditary trustees. Now, as per the plaint allegations since Ponnappa Gounder had no son he adopted Govindappa mudaliar, his sister's son, as his son. The defendants deny that there was any such adoption. Admittedly there is no adoption deed. The plaintiffs have let in oral evidence to prove adoption by examining P. Ws. 2 to 5 besides the first plaintiff as P. W. I. The question arises whether by mere oral evidence of P. Ws. 1 to 5, it can be held that in fact there was an adoption. However, that may be, from the evidence it would appear that Ponnappa Gounder was not competent to adopt a son because he had a son by name Chithira Gounder. To prove that Ponnappa Gounder had a son by name Chithira Gounder, the defendants have filed Ex. B-9, kist receipt and Ex. B-10 voters'list. The learned trial Judge seems to be of the view that these two documents show that Ponnappa gounder had a son by name Chithira Gounder. During the course of arguments in the appeal also the defendants'case that Ponnappa Gounder had a son by name Chithira Gounder has not been seriously disputed. Therefore, it can be safely held that it is true that Ponnappa Gounder had a son by name Chithira gounder. However, the learned trial Judge would say that there is no evidence to prove that Chithira Gounder was acting as a trsutee of the suit temple after the death of Ponnappa Gounder. That may be true. But the question is while chithira Gounder was alive as a son of Ponnappa Gounder can Ponnappa Gounder adopt a son. In law, Ponnappa Gounder cannot do so. Ponnappa Gounder having died in 1952 if at all there was any adoption it could be only before then. At that time, the law prior to the Hindu Adoptions and Maintenance'Act, 1956, will be applicable. As per that law, in Mulla's Hindu Law, fifteenth Edition, at page 570, under Sec. 450, as to the, competency of a male hindu before the Act, it is stated thus: '450. (1) Subject to the provisions of any law for the time being in force, every male Hindu, who is of sound mind, and has attained the age of discretion, even though he may be a minor, may lawfully take a son in adoption, provided he has no son, grandson, great grandson, natural or adopted, living at the time of adoption.' It is, therefore, clear that as per the law then existing ponnappa Gounder could not have validly adopted a son when he had a son born to him. In this position one thing is that it is difficult to believe that when the law is such Ponnappa Gounder had adopted Govindappa Mudaliar as his son and another thing is that even if some ceremonies of adoption had been gone through that will not give a valid adoption. Therefore, Govindappa Mudaliar cannot be regarded as the son of Ponnappa Gounder, and as such he cannot be a member of the family of Ponnappa Gounder. Therefore, even if Govindappa Mudaliar had been a trustee of the temple that will not help the plaintiffs to prove that the members of their family had been trustees for three generations and therefore they are hereditary trustees. In Ex. A-17 audit report dated 3. 8. 1976 of the suit temple for faslis 1378 to 1383 submitted by the Inspector, Hindu Religious and Charitable Endowments (Administration) Department, it is stated that govindappa Mudaliar-father of the plaintiffs, was acting as hereditary trsutee of the suit temple from 1. 7. 1968 to 30. 8. 1974. Merely because Govindappa mudaliar was acting as a trustee the Inspector was not competent to say that he was acting as a hereditary trustee. This may only show that for the said period govindappa Mudaliar was a trustee. But, it will not show that he became a trustee hereditarily. Here it may be noted that it is in evidence that Ponnappa gounder died in 1952 and as per Ex. A-17 Govindappa Mudaliar was trustee only from 1. 7. 1968 to 30. 8. 1974 and it is not known as to who was the trustee from 1952 to 30. 6. 1968. In this view of the matter the plaintiffs - sons of govindappa Mudaliar cannot claim that they are hereditary trustee Here it is worth noting that the first plaintiff himself has been appointed as a trustee for five years by the Deputy Commissioner as per his order Ex. B-15, dated 26. 6. 1963. In the normal course, this would not have happened if the first plaintiff was a hereditary trustee. It is argued that the first plaintiff has not applied for being appointed as a trustee and there is no evidence'to show that there was such an application. But as per Sec. 114 of the Evidence act, Official Acts must be presumed to have been regularly performed and there appears to be no reason as to why the first plaintiff should have been appointed as a trustee if there was no application made by him.