A DHAKSHINAMOORTHY Vs. COMMISSIONER / SPECIAL COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENT DEPARTMENT

JUDGEMENT

(1.) The Writ Petition has been filed challenging the order of the Joint Commissioner, Hindu Religious and Charitable Endowment Department, Madurai, / the second respondent herein, passed in Se.Mu.N.K.A.No.9290/2007/A-1, dated 15.02.2010, as illegal and contrary to law.

(2.) The case of the writ petitioner is that one Nacharammal, Amma Pillai, Rakkayee Ammal and Seeniammal @ Anda Thayammal had founded a Trust namely "Sri Nacharammal Trust" and they had executed a registered settlement deed dated 23.04.1923 to perform the mandagapadi to Sri Lord Kallalagar during chitra pournami festival. Initially, five members were appointed as Hereditary Trustees from the family members to perform the kattalai as enunciated under the said trust deed. One Senior Muthusamy Pillai and Junior Muthusamy Pillai had been declared as Hereditary Trustees of the said trust. Thereafter, difference of opinion arosed between the trustees regarding performance of the said trust which led to framing of a Scheme in O.A.No.3 of .1967 on the file of the Deputy Commissioner, Hindu Religious and Charitable Endowment Department, Madurai. The specific endowment and administration vest with the Hereditary Trustees comprised in two branches namely M.P.Anandham Pillai, Senior Muthusamy Pillai and Junior Muthusamy Pillai. The above said M.P.Anandham Pillai is the father of the first petitioner viz., A.Dhakshinamoorthy and Junior Muthusamy Pillai's branch is now represented by M.Thirupathy. While so, the office of the trusteeship has been declared as Hereditary within the meaning of section 6 (11) and 63 (b) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. As per the Scheme framed in O.A.No.3 of 1967, the two sons-in-law of the founders of the endowment in the order of seniority and after them the lineal descendants are entitled to take the rank of Hereditary Trustees of M.P.Anandham Pillai and Junior Muthusamy Pillai. On the resignation of Senior Muthusamy Pillai, his eldest son M.P.Anandham Pillai had become the Hereditary Trustee in his place. The Hereditary. Trustee No.2, namely, Junior Muthusamy. Pillai shall .be the Chairman of the Board of Trustees initially for a period of 3 years from the date of the scheme till the end of Chitrai Sowmiya and after expiry of the said period, the Trustee No.1, viz., M.P.Anandham Pillai, son of Senior Muthusamy P.illai shall be the Chairman of Board of Trustees for a term of 3 years and thereafter, the Hereditary Trustee No.1 viz., M.P.Anandham Pillai shall successively be the Chairman of Board of Trustees alternatively each for a term of 3 years. The first petitioner herein is the lineal descendant of the above said M.P.Anandham Pilllai. As per the scheme, the lineal descendant of M.P.Anandham Pillai and Junior Muthusamy Pillai are legally entitled to administer the trust alternatively for a period of 3 years. Accordingly, the said M.P.Anandham Pillai have been functioning as Hereditary Trustee of the above trust for over 40 years and his branch has acquired right of Hereditary Trusteeship in respect of Senior Muthusamy Pillai's branch by adverse possession. As far as the third respondent is concerned, neither the third respondent nor his father never claimed any right over the trusteeship in respect of Senior Muthusamy Pillai branch and therefore, the third respondent is legally not competent to seek appointment as a Hereditary Trustee. As far as the fourth respondent is concerned, she has already relinquished her rights along with her sisters as Hereditary Trustees in respect of Junior Muthusamy Pillai's branch in favour of her brothers even in 1973. Thereafter, one M.Sethuraman, who is the brother of the fourth respondent was functioning as Hereditary Trustee from 1973 upto 1992. Thereafter his younger brother one M.Thirupathy became the Hereditary Trustee and functioned as such from 1992 onwards. The fourth respondent filed a petition in O.A.No.17 of 1993 before the second respondent for declaring her as Hereditary Trustee representing Junior Muthusamy Pillai's branch. The said petition is still pending. The fifth respondent's father namely Thirupathia Pillai had never claimed any right over the trusteeship of the said trust. The fifth respondent's family lost their right of trusteeship to Late. Velusamy PiIlaiywho functioned as one of the Hereditary Trustees for over 6 decades.

(3.) The Secretary to Government, H.R.& C.E Department, passed a G.O.Ms.No.81, dated 21.05.2002 appointing Executive Officer to administer the said Trust. Challenging the same, the father of the first petitioner herein viz., M.P.Anandham Pillai filed a writ petition in W.P.No.33183 of 2002 before the Principal Bench of this Court. During the pendency of the said writ petition, the father of the first petitioner died and the first petitioner herein was impleaded as second petitioner. The above Writ petition was allowed setting aside the orders passed by the Secretary to Government. As against the said order, the respondents 1 and 2 therein filed a Writ Appeal in W.A.No.8 of 2005 and the same was also dismissed. Pursuant to that, the management was restored to the first petitioner herein and he has been functioning as a Hereditary Trustee of the said trust. However, the above trust was continuously in the administration of the H.R. & C.E Department from 1981 onwards upto 2006. The Executive Officer had to set right defects in the trust. After assumption of office by Executive Officer the same position continued for over 20 years. The lessees of the trust have stopped the payment of lease to the Executive officer. A sum of Rs.7,00,000/- was due from the tenants towards arrears of lease. The Executive Officer has not initiated any action against them to recover the amount or evict them from the demised land. Even in the Auditors report, it has been specifically mentioned that the Executive Officer has caused heavy loss to the trust. The Executive Officer has failed to initiate action to set right the trust property. The trust has landed properties and there is no regular income from the said land. Therefore, it was very difficult to perform mandagapadi during Chitra festival in accordance with trust deed and fulfill the aspiration of the founders.