V K B K GOVINDARAJA MUDALIAR FIT PERSON SRI SUBRAMANYA SWAMI TEMPLE KUMARAKOTTAM KANCHEEPURAM Vs. V ANNASAMI

JUDGEMENT

(1.) THOUGH the C.M.Ps. are listed for hearing, by consent of both sides, the main appeal itself is taken up for final disposal.

(2.) THE appeal is preferred against the order dated 20th September, 1994 passed by the learned single judge on C.M.P. No. 34228 of 1994 filed in A.S. No. 615 of 1986. In C.M.P. No. 3428 of 1994, the petitioners sought for a direction to the 2nd and 3rd respondents, viz., the Executive Officer and the Deputy Commissioner to remove the Ist respondent, viz., the appellant herein from the office of the fit person of the suit temple pending A.S. 615 of 1986.

(3.) THE order of the Deputy Commissioner which is sought to be set aside in the aforesaid suit is the one passed in O.A. 14 of 1978 (Madras) on 21st April, 1982. Though the said order is not included in the typed set of records, learned senior counsel appearing for the appellant has brought to our notice that order. THE operative portion of the said order is relevant for our purpose. Before quoting the operative portion, we may point out that the said proceeding arose out of the application filed by the plaintiffs in the present suit under Section 63(b) of the Act claiming that they are the hereditary trustees of the temple in question known as Arulmighu Subramanya Swami Temple, Kumarakottam, Kancheepuram, Chingleput District. THE Deputy Commissioner by the aforesaid order dated 21st April, 1982 held: "THE evidence on record in this case establishes that the office of trusteeship has been held hereditarily till 20.3.1990 when the father of the petitioner relinquished office. It is also found that in O.A. 286/1935 in BO. dated 30.9.1935 the temple has already been declared to be excepted on the specific ground of the management having been hereditary and that all the scheme proceedings neither bar nor mar the claim of the petitioner in this case." Thus, it is clear that the original hereditary trustee relinquished the office as long back as in the year 1950. THEreafter, only for the first time in the year 1978, the application came to be filed. Even though the office of the hereditary trusteeship was relinquished as long back as in the year 1950, no fit person was appointed. Only in the year 1964, the fit person came to be appointed. No record is produced in the proceedings to show that the fit person in question appointed in the year 1964 was because of the reason that the hereditary trustee was not in a position to perform his functions, nor he had become incapacitated or declared as an undischarged insolvent. In addition to that, the plaintiffs who have claimed the hereditary trustees, have also failed to establish that they are the hereditary trustees. Thus, this is a case in which it is not possible to hold that the fit person in question was appointed in place of the hereditary trustees. If that be so, one can proceed only on the basis that he came to be appointed in place of non-hereditary trustee. Section 26(1)(b) of the Act fixes the upper age limit for a non-hereditary trustee that he should not be more than 70 years of age. THE contention advanced before us is that whatever may be the requirements of section 26(1)(b) of the Act, it cannot be applied to fit person, because the Act as such does not prescribe any age limit for the fit person to hold office.