V. Ramasubramanian, J.@mdashAll these writ appeals arise out of the dismissal of a batch of writ petitions challenging the suspension of the hereditary trustees of a special religious endowment and the appointment of a fit person by the Tamil Nadu Hindu Religious and Charitable Endowment Department.
2. We have heard Mr. M. Vallinayagam, learned Senior Counsel appearing for the appellants, Mr. V.R. Shanmuganathan, learned Special Government Pleader appearing for the Department and Mr. M. Muthugeethayan, learned counsel appearing for the Temple/Fit Person.
3. By a deed of partition, executed on 07.09.1921, three brothers by name Chidambaram Pillai, Malaiperumal Pillai and Paramasivam Pillai, all sons of one Andiappa Pillai, partitioned the properties belonging to the family among themselves. The deed of partition covered several items of properties. One of the properties covered by the deed of partition was described as Item No. 4 in the IV-Schedule. The said property was a Mandapam at Door Nos. 12, 13, 13-A, 14, 14-A and 14-B, Sannathi Street, Thiruchendur. This property and another property at Alagiyamanavalapuram in Srivaikundam Taluk, Thoothukudi District, were dedicated for the purpose of conduct of the second day mandagapadi in the Tamil months of Avani and Masi in Shri Subramaniyasamy Temple, Thiruchendur. The eldest member of the family, namely Chidambaram Pillai, was entrusted with the obligation of conducting this mandagapadi from out of the income arising from the above properties. The partition deed stipulated that these properties cannot be alienated and that if there was a shortfall in the income, proving it to be inadequate for the conduct of the mandagapadi, the shortfall should be compensated by Chidambaram Pillai and his male heirs.
4. It appears that in the year 1991, the Joint Commissioner of Hindu Religious and Charitable Endowment Department, filed a suit in O.S. No. 291 of 1991 on the file of the Sub-Court, Tuticorin, seeking a declaration. By a judgment and decree dated 14.09.1995, the Sub-Court declared that the aforesaid properties were "Kattalai Properties", constituting a specific endowment. The judgment and decree were confirmed by the appellate court in A.S. No. 193 of 1996.
5. In the year 2001, the Joint Commissioner, Hindu Religious and Charitable Endowments, filed another suit in O.S. No. 11 of 2001, for recovery of possession of the property. This suit was transferred to the Additional District Court, Thoothukudi and renumbered as O.S. No. 59 of 2004. But, the suit was dismissed by the trial court, by a judgment and decree, dated 20.03.2008, after recording a finding that the hereditary trustees have been duly performing the obligations imposed upon them under the partition deed.
6. However, a third suit was filed by the Joint Commissioner of the Temple in O.S. No. 12 of 2011, seeking recovery of possession. But, this suit was in respect of only one of the properties, namely the building at Door No. 13-A, Sannathi Street, Thiruchendur. The said suit was filed on the allegation that the hereditary trustees were guilty of mismanagement. Though the suit was decreed by the trial court on 31.03.2010, the first appellate court reversed the said judgment in an appeal in A.S. No. 17 of 2010, by a judgment and decree dated 25.04.2013.
7. There was also a fourth suit in O.S. No. 68 of 2004, filed by the Joint Commissioner of the Temple for the relief of recovery of possession of one of the properties dedicated to the specific endowment. This suit was decreed ex-parte. But, an application under Section 47 of the Code of Civil Procedure is pending in the Execution Proceedings.
8. Thus, the Temple Administration appears to have been fighting a perennial litigation for the past 25 years, right from 1991, for taking over the possession of the properties, though unsuccessfully. Therefore, the Joint Commissioner at last took recourse to the statutory provisions contained in the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (in short "the Act"). By proceedings dated 05.02.2015, the Joint Commissioner of the Temple suspended all the hereditary trustees and framed charges against them. By another proceedings issued on the same date, namely 05.02.2015, the Joint Commissioner appointed a Fit Person in the place of all the hereditary trustees.
9. Challenging the order of suspension, the trustees came up with three independent writ petitions. Challenging the order of appointment of a Fit Person, one family member came up with an independent writ petition. Thus, there were three writ petitions challenging the suspension and charge memo issued against the hereditary trustees and one writ petition challenging the appointment of a Fit Person. All the four writ petitions were dismissed by a learned Judge, by an order dated 30.09.2015. Challenging the common order passed by the learned Judge, the present appeals have been filed by the hereditary trustees and the family member.
10. As we have pointed out earlier, two sets of orders were under challenge, in the writ petitions. The first order was one where the hereditary trustees were placed under suspension and charges were framed in terms of Section 53 of the Act. By the next order, the Joint Commissioner/Executive Officer of the Temple was himself appointed as the Fit Person for the endowment.
11. The grievance of the appellants herein is not very much to the framing of the charges, but only to the suspension and the appointment of a fit person. The learned Senior Counsel for the appellants made it clear that the appellants do not feel shy of facing the enquiry and coming out clean. Therefore, the grievance of the appellants are now confined only to (i) the order of suspension and (ii) the appointment of fit person.
12. Apart from dismissing the writ petitions on merits, the learned Judge also held that the appellants have an alternative remedy of appeal available under the statute and that therefore they could take recourse to the same. Therefore, before testing the correctness of the contentions on merits, we are obliged to deal with the question of availability of alternative remedy.
Question of Alternative Remedy:
13. As in service jurisprudence, the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 also stipulates two types of suspension, namely (i) suspension pending enquiry and (ii) suspension imposed as a measure of penalty. Section 53(2) of the Act empowers the appropriate authority to suspend, remove or dismiss any trustee, if any of the contingencies stipulated in clauses (a) to (k) therein arises. But, sub-section (3) of Section 53 makes it clear that before taking any action under sub-section (2), the appropriate authority should frame charges against the trustee and give him an opportunity to meet such charges.
14. Therefore, it is clear that the suspension contemplated in sub-section (2) of Section 53 , placed along with removal or dismissal of trustees, is as a measure of penalty. In contrast to sub-section (2) read with sub-section (3), sub-section (4) empowers the appropriate authority to place a trustee under suspension and appoint a fit person to discharge his duties pending disposal of the charges. Therefore, it is clear that the Act contemplates two types of suspension.
15. A remedy of appeal is provided under sub-section (5) of Section 53 . But, sub-section (5) of Section 53 makes it clear that the remedy is available only as against the order passed under sub-section (2). In other words, if suspension is imposed as a measure of penalty, then the suspended trustee has a statutory alternative remedy of appeal under Section 53(5) . Sub-section (5) of Section 53 does not contain a reference to sub-section (4). Therefore, a trustee placed under suspension under sub-section (4) of Section 53 , does not have a remedy of appeal under sub-section (5) of Section 53 . On this aspect, the learned senior counsel for the appellants is right and the finding recorded by the learned Judge is not correct.
16. But, it is contended by Mr. V.R. Shanmuganathan, learned Special Government Pleader, that apart from Section 53(5) , there is also a provision in Section 21 of the Act, under which the Commissioner is vested with a revisional jurisdiction. Therefore, the learned Special Government Pleader contended that the learned Judge was right in holding that an alternative remedy was available to the appellants.
17. But, we do not think that the said contention could be accepted. An alternative remedy of appeal stands on a different footing from the remedy of a revision. The power of revision conferred by Section 21(1) upon the Commissioner is only to satisfy the Commissioner as to the regulatory of any proceeding or the correctness, legality or propriety of any decision or order passed by his subordinates. Moreover, Section 21(1) deals with the general power of revision. This is why Section 21(1) makes it clear that the power of revision is available only in respect of proceedings other than those in respect of which a suit or an appeal to a court is provided by the Act. Section 53(5) is a specific provision dealing with the right of an appeal. Therefore, to say that a person suspended pending enquiry into charges has a revision under Section 21(1) , but a person who is imposed with a penalty of suspension under Section 53(2) will have a remedy of appeal under Section 53(5) may not be appropriate. In any case, the learned Judge has already gone into the merits of the case. Therefore, the question of directing the appellants to take recourse to an alternative remedy does not arise.
Contentions on merits:
18. Assailing the orders of suspension and the appointment of a fit person, it is contended by Mr. M. Vallinayagam, learned senior counsel for the appellants -
"(a) that these orders have been passed completely without any application of mind,
(b) that even if the charges are taken to be proved, the delinquencies complained therein are attributable to the parents of the appellants and the same cannot be passed-on to the children,
(c) that if the appointment of an Executive Officer in the place of a trustee is to be preceded by the observance of principles of natural justice, the same logic would apply even to the appointment of a fit person, but the principles of natural justice has been violated in this case, and
(d) that even if the appellants deserved to be suspended, either pending enquiry into charges or as a measure of penalty, the same would not entitle the appropriate authority to appoint a stranger as a fit person and even the appointment of an Executive Officer as a fit person would tantamount to appointment of a stranger to the specific endowment."
19. We have carefully considered the above submissions.
Non-application of mind:
20. The first contention of Mr. M. Vallinayagam, learned senior counsel for the appellants, is that the impugned orders are vitiated by non-application of mind. Under the impugned order of suspension, the appellants are charged with seven allegations of misconduct. But, the foundation for all the seven charges are (i) the alienation of the property dedicated to the endowment, under a sale deed dated 05.04.1990, and (ii) the alienation of another property dedicated to the endowment under two different sale deeds, registered way back in the years 1956 and 1957.
21. According to the appellants, the sale deed dated 05.04.1990, relied upon by the department in the order of suspension does not relate to the property dedicated to the endowment. It is, therefore, contended that a charge based upon a sale deed related to an unconnected property is vitiated by non-application of mind.
22. But, the above contention of the appellants appears to be only a smoke screen. The fact remains that the property located in Survey No. 241/1, Tiruchendur, which was one of the properties dedicated to the endowment, was sold by the trustees under a sale deed dated 25.09.1989. But, it is claimed by the appellants that the purchaser by name Kannan, jointly executed along with the appellants, a deed of cancellation on 02.06.2005, cancelling the sale deed document. Therefore, two mistakes were committed by the department, while drafting Charge No. 1. They are (i) the mentioning of a wrong document number and date and (ii) not taking note of the cancellation of the sale deed.
23. It is claimed by Mr. Muthugeethayan, learned counsel for the Temple that despite the execution of such a cancellation deed, the purchaser continues to be in possession and enjoyment of the property and that therefore the first charge was justified.
24. However, we do not wish to get into the validity of the charges. Even the appellants do not wish to test the entitlement of the department to enquire into the charges. We have examined the first charge only for the limited purpose of finding out whether there was non-application of mind. Though there appears to be non-application mind in the sense that the date of execution of the sale deed was not correctly mentioned and the factum of cancellation of the sale deed was not taken note of, the substance of the charge will remain and hence there was no non-application of mind on the part of the department atleast insofar as the substance of the allegations are concerned.
25. The next limb of the first contention is that the sale deeds that formed the basis for charges 2 and 3 were executed by the previous trustees (their fathers) in the years 1956 and 1957 and that therefore the appellants cannot be charged of having committed an irregularity.
26. But, this contention also is not sustainable. Charges 2 and 3 may be valid or not valid. These charges may be justified or unjustified. But, all that we are called upon to see now is whether the order of suspension, suffers from any non-application of mind or not. Charges 2 and 3 framed by the impugned proceedings, dated 05.02.2015, do not per se accuse the appellants of executing those sale deeds in 1956 and 1957. If the charges 2 and 3 accuse the appellants of selling the properties in the years 1956 and 1957, the charges would certainly suffer from the vice of non application of mind. But these charges merely accuse the appellants of not taking any action for retrieving the properties back to the Trust. Therefore, these charges also do not suffer from any non-application of mind. Hence, the first contention that the order of suspension and the order of appointment of a fit person are vitiated by non-application of mind is liable to be rejected.
Delinquencies of parents - Its effect upon their children:
27. The second contention of Mr. M. Vallinayagam, learned counsel for the appellants, is that for the delinquencies committed by the father, the son cannot be disqualified and removed from the office of the trusteeship. According to the learned senior counsel, the appellants were minors at the time when the two sale deeds were executed in the years 1956 and 1957, which formed part of charges 2 and 3. The Act does not prescribe, as one of the disqualifications, any act of misconduct or irregularity committed by the father, for the appointment of the son. Therefore, it is contended that the very initiation of proceedings as though an act of irregularity committed by the father will disqualify the son, is not in accordance with law and hence the orders of suspension and the appointment of a fit person should go.
28. But, this contention has arisen on account of a misreading of charges 2 and 3. Charges 2 and 3, as they have been framed, do not accuse the appellants per se of selling the properties. The charges state that the properties were sold contrary to the deed by which the endowment was created and that the appellants herein failed and neglected to take any steps for the recovery of the properties. In other words, the appropriate authority has not charged the appellants of having inherited the sins or misconduct committed by their parents. The charges accuse the appellants of not undertaking any act of reparation. Therefore, the decision in
29. The said decision would have been of assistance to the appellants if the very charges framed against them are to the effect that their parents sold away the properties endowed for religious purpose, thereby making the sons ineligible for appointment. But that was not the charge. Hence, the second contention does not also hold good.
Violation of natural justice:
30. The next contention of the learned senior counsel for the appellants is that before passing the order appointing a fit person, no notice was issued and no opportunity was given. Though Section 53(4) which empowers the appropriate authority to appoint a fit person, does not provide for the observance of the principles of natural justice, it is contended by the learned senior counsel for the appellants that if the appointment of Executive Officer in the place of the existing trustees is to be preceded by the observance of the principles of natural justice, the same reasoning would apply even to the appointment of a fit person.
31. In this regard, the learned senior counsel for the appellants relies upon the decision of this Court in
32. But, the said contention does not merit acceptance. As we have pointed out earlier, the Act contemplates two types of suspension. One is a suspension pending enquiry, passed under Section 53(4) and another is a suspension by way of punishment passed under Section 53(2) . Suspension as a measure of penalty cannot be imposed without following the principles of natural justice, as these principles are in-built in sub-section (3) of Section 53 itself. But, to say that even to place a trustee under suspension pending enquiry into charges is something that would actually make the procedural safeguard, completely submerge the very purpose of placing a person under suspension.
33. Whether it is in service jurisprudence or it is in the law relating to Trusts, the suspension of a person, pending enquiry into grave charges, is to keep him out of office, for the time being until the completion of the enquiry. It has two purposes to be served. The first is to ensure that the evidence on record is not tampered. The second is to prevent further acts of irregularities being committed, even when an enquiry into grave charges is going on.
34. Mr. M. Vallinaygam, learned senior counsel for the appellants, submitted that the suspension of the hereditary trustee of a temple or endowment should not be treated on par with the suspension of a Government servant. A Government servant, even if he is suspended pending enquiry into grave charges, does not lose his status. He continues to be a Government servant. Even his monetary rights are protected to some extent, in the form of subsistence allowance. But, when the hereditary trustee of a Temple or Endowment is placed under suspension, he loses his very status. Therefore, the learned senior counsel contended that the law relating to the suspension of a Government servant pending enquiry into grave charges cannot be applied to the suspension of a hereditary trustee.
35. We have no difficulty in accepting the above submission. The suspension of an employee in the private sector or a Government servant stands on a different footing than the suspension of a trustee. But, it must be remembered that the rights of the employees or Government servants are protected by statutes or statutory rules, which occupy the field. The office of trusteeship is not protected by any statutory rule. Therefore, before reading into Section 53(4) of the Act, the principles of natural justice, one has to see whether the office of trusteeship is protected statutorily and if so to what extent.
36. It is true that shebaiti right or the right to the office of trusteeship is recognised in India to be akin to the right to property. But, there is a small distinction between the right to property and the right to the office of trusteeship. The right to property includes within it, the right to transfer the property for a consideration. An office of trusteeship cannot be transferred for a monetary consideration. Moreover, the right to property does not depend upon how one manages or mismanages the property. But, the right to the office of trusteeship depends upon the proper management and administration of the property of the Trust. A trustee of a public charitable or religious endowment, forfeits his right to hold the office, the moment he commits an act that belies the trust reposed in him. Therefore, the rigours placed upon the office of trusteeship are much more. Hence we are of the considered view that the observance of the principles of natural justice before slapping an order of suspension on a hereditary trustee under Section 53(4) of the Act pending enquiry into grave charges, is neither feasible nor required. Therefore, the third contention of the learned senior counsel for the appellants is also rejected.
Next in the Line of Succession:
37. The next contention of the learned senior counsel for the appellants is that even if the appellants deserved to be suspended, either pending enquiry into charges or as a measure of penalty, the same would not entitle the appropriate authority to appoint a stranger as a fit person. Even the appointment of an Executive Officer as a fit person would tantamount to the appointment of a stranger to the specific endowment. In this connection, the learned senior counsel places reliance upon the following decisions:
(iii)
(iv) G. Shanmugam v. The Commissioner, HR&CE (Admn.) Department, Chennai -[2010] 0 Supreme (Mad) 702."
38. As in the present case, the challenge in P.K. Soundaraja Mudaliar was to an order by which the hereditary trustee was placed under suspension and a fit person was appointed. K. Srinivasan, J (as he then was) quashed even the order of suspension on the ground that the charges were framed in January, 1961 and in the course of the enquiry, the order of suspension and appointment of a fit person was passed much later, in July, 1961. Therefore, the learned Judge felt that there was no reason as to why after six months of the framing of the charges, a suspension pending enquiry should be passed. It is while quashing the order of suspension that the learned Judge held that whenever a permanent or temporary vacancy arose, due to the suspension of a hereditary trustee, the same cannot be filled-up by strangers but had to be filled-up only by a person next in the line of succession.
39. In N.H.M. Pandian, the hereditary trustee contended that the appointment of a fit person in exercise of the power conferred by Section 54(2) was illegal, in respect of cases covered by Section 53(4) . But the Division Bench of this Court held that the power to appoint fit person under Section 53(4) was a special provision covering a specific contingency and that therefore the general power of appointment of a fit person available under Section 54(2) stood excluded by Section 53(4) . Nevertheless, on the question as to who should be appointed, the Division Bench made it clear that having regard to the nature of the office of hereditary trusteeship under the general law, the appropriate authority is bound to have due regard to the claims of members of the family of the trustee. However, in the case before the Division Bench, the claim of the eldest son of the hereditary trustee who was placed under suspension was considered and rejected by the appropriate authority and hence the Division Bench chose in N.M.H. Pandian not to interfere with the decision of the appropriate authority.
40. In Rajambal Ammal, a learned single Judge of this Court was concerned with a case where there was two hereditary trustees. Only one of them was placed under suspension. Therefore, the learned Judge held that when one of the hereditary trustee was available in flesh and blood, without having been removed or facing any disciplinary action, it was not proper for the appropriate authority to appoint a fit person. Therefore, the said decision is of no assistance to the learned senior counsel for the appellants.
41. Interestingly, the decision of the Division Bench of this Court in G. Shanmugam was virtually a hereditary litigation for the office to hereditary trusteeship. This decision also arose out of the appointment of a fit person to the very same temple Badrakaliamman Temple in Kollampalayam Road, Erode Town, which was the subject matter of dispute in Rajambal Ammal. While in Rajambal Ammal, the validity of appointment of a fit person in the absence of any proceedings against a co-trustee by name Rajambal Ammal was in question, what was in question in G. Shanmugam was whether the son of Kuppurathinammal against whom disciplinary proceedings were initiated was entitled to be appointed upon the suspension of his mother. The other children of the suspended trustee Kuppurathinammal gave letters of consent to the appointment of the eldest son G. Shanmugam. But, they withdrew the consent letters after the death of Kuppurathinammal. The question that arose before the Division Bench was whether such withdrawal of consent could be accepted. The Division Bench held that the situation that arose after the death of Kuppurathinammal was completely different and that after the death of Kuppurathinammal, the line of succession opened.
42. From all the above decisions, it appears that this Court has consistently taken the view that the suspension of a hereditary trustee is not a bar for considering the claims of persons next in the line of succession to the office of trusteeship. The logic behind the aforesaid view is perhaps our traditional belief that sinners and saints need not necessarily beget sinners and saints, respectively. Hindu mythology has it that most of demons (asuras) were born only to great Rishis. The converse is also proved by the case of Prahlad born to Hiranyakasipu.
43. Moreover, atleast in respect of appointment of fit persons to endowments of this nature, the contention of the appellants cannot be rejected so easily. This can be understood better by having a look at the nature of the endowment in question.
44. As seen from the document by which the endowment in question was created, it was a partition deed. While partitioning the properties of the family, three brothers kept aside two properties, specifically for the purpose of performing the second day mandagapadi in the months of Avani and Masi and the obligation to perform this religious piety was entrusted to the eldest brother, namely A. Chidambaram Pillai and his lineage. The deed of partition stipulated that the obligations imposed therein should be performed from out of the income from these properties. If the income was not sufficient to perform these obligations, the trustee was also made obliged to spend money from his pocket. The deed further stipulated that these properties cannot be alienated.
45. Therefore, what was created by the deed of partition was undoubtedly an endowment. The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, speaks of two types of endowments. They are (i)"charitable endowments", defined in Section 6(5) of the Act, and (ii)"religious endowment" or "endowment", defined in Section 6(17) of the Act.
46. Charitable Endowment is defined in Section 6(5) to mean all property given or endowed for the benefit of, or used as of right by the community or any section thereof, for the support or maintenance of objects of utility to the said community.
47. In contrast, a religious endowment or endowment means all property belonging to or given or endowed for the support of maths or temples or given or endowed for the purpose of any service or charity of a public nature connected therewith or of any other religious charity.
48. It was held by a Division Bench of this Court in
"XIV. KATTALAI GRANTS IN SOUTH INDIA 4.55. Kattalai or special grant.--Before I close this chapter one thing requires to be noticed and that is a special grant for religious services in a temple which is in vogue in Southern India and is known by the name of Kattalai. As Muttusami Aiyyar, J. explained in Vythilinga v. Somasundara, in ordinary parlance, the term Kattalai as applied to temple means endowments and signifies a special endowment for certain specific service or religious charity in the temple. Ardajama Kattalai or endowment for midnight service is an instance of the former and Annadan Kattalai or an endowment for distributing food to the poor is an example of the latter. In this sense the word Kattalai is used in contradistinction to the endowment designed generally for the upkeep and maintenance of the temple. Persons who endow properties for kattalais are entitled to appoint special trustees to administer them, and the general trustees of the institution have no right to dispossess them. And if under the terms of the grant, the special trustee has to utilise the income for specified services in the temple, the general trustee has the right, as the person in charge generally of the temple, to require the special trustee to hand over the income to him. But the special trustee is, in respect of the management of the kattalai properties, under the same obligations as a trustee, and an alienation by him of those properties would be void, unless it is for necessity or benefit. In the case of some important temples, the sources of the income are classified into distinct endowments according to their importance. Each endowment is placed under a separate trustee and specific items of expenditure are assigned to it as legitimate charges to be paid therefrom. Each of such endowments is called also a Kattalai and the trustee who administers it is called the Kattlaigar or stanik of the particular Kattalai. The import of this expression was discussed in detail by Sesagiri Aiyyar, J. in Ambala Vana v Sree Minakshy. According to him, this expression is used with reference to three different kinds of endowments. Properties may be endowed- (a) for the performance of pujas in the temple, or (b) for the performance of certain festivals in the temple, or (c) for the performance of Archanas to the deity in the name of the donors.
(a) Ordinarily, the puja is not performed in the name of the donor, and consequently, supplementary grants are made by pious persons in order that the service should be more efficiently performed. Instances of this type of grant are to be found in the famous temple at Chidambaram, where almost all the necessary daily services are conducted by means of Kattalais endowed by pious donors.
(b) It also happens that where lands for funds in respect of particular service or festival at temples are not sufficient for conducting them on the original scale, new donors come forward to supplement these funds.
(c) For Archana, however, no supplementary grant by other donors is possible. It is intended solely for the spiritual benefit of the grantor and it is not the concern of third parties to help in his performance if the funds are for any reason not found sufficient. Whatever the exact nature of Kattalais may be-and that must depend upon the usages of particular temples-one fact ought to be remembered in this connection, and that is that when the grant is to the deity and the income of particular funds is earmarked for special services which are entrusted to special trustees, if there is a surplus which cannot be spent on these services, it would be a case for the application of the cy pres doctrine and the special trustee can, on no account, claim the surplus. This has been held by the Judicial Committee in an appeal from the Madras High Court."
49. Therefore, it must be borne in mind that Hindu Religious and Charitable Endowments admits two categories of trustees, namely (i) general trustees, who may be in-charge of the management and administration of the temple itself, and (ii) special trustees who may be administering specific endowments, which may be religious or charitable or a combination of both.
50. The Act itself contemplates the appointment of Executive Officers (and some times fit persons) in the place of general trustees. But, insofar as special trustees who manage specific endowments such as ''kattalais'' are concerned, the Act does not provide for the appointment of Executive Officers, but provides only for the appointment of fit persons, either under Section 53(4) or under Section 54(3) .
51. It is needless to point out that the appointment of a fit person, either in the place of general trustees or in the place of special trustees, is always contemplated only as a temporary measure so that after the exhaustion of the contingencies which lead to the appointment of fit person, the next in the line of succession could be appointed as special trustees. But the appointment of an Executive Officer is not normally a temporary affair, like the appointment of a fit person.
52. Once the above distinction (i) between general trustees and special trustees, and (ii) between the nature and object of appointment of an Executive Officer and the nature and appointment of a fit person is understood, it will be clear that the continued appointment of special trustees in the case of ''kattalais'' is an inevitable option. The reasons for the law being what it is, is not far too difficult to seek.
53. In the case of specific endowments such as ''kattalais'', an obligation is imposed by the founder of the endowment upon the trustees, to continue to perform specific services perpetually. A property is endowed for the purpose, with a stipulation that the income arising there from should be utilised for the performance of the kattalai. As a consequence, the ownership of the property is not passed on to the idol, but a charge is created on the property for the performance of the services for which the specific endowment is created.
54. Since the primary object of creating a kattalai is to ensure the continued performance of a specific service, the trustees are also normally endowed with an obligation to spend money out of their own pockets whenever the income from the dedicated properties fall short of the expenditure required for the performance of the kattalai.
55. If a fit person is appointed completely ousting the descendents of the founder from trusteeship, on the ground that one of them or some of them in the lineage committed an irregularity, thereby disqualifying all his descendents, the very purpose of the kattalai will be in jeopardy.
56. Take for instance a case where the expenditure involved for the performance of a kattalai is about Rs. 50,000/- per year. If the income from the properties dedicated to the kattalai is only Rs. 40,000/- per year, the special trustees are obliged to perform the kattalai by contributing shortfall of Rs. 10,000/- from out of their own pockets. They cannot escape the obligation on the ground that the income is not sufficient.
57. But, that is not the case with a fit person. A fit person cannot be expected to spend money out of his pocket to perform the kattalai. Therefore, if the wishes of the founder of a specific endowment are to be honoured, it is necessary that the rule of next in the line of succession statutorily recognised, has to be followed. This is perhaps the reason why this Court has consistently taken the view that even in cases where the parents were guilty of some wrong doing, the children were not disqualified from being appointed as trustees.
58. We are not to be understood as putting a seal of approval on the attempts of the present trustees to alienate a property. We are also not to be understood as affixing a seal of approval on the alienation made by the parents of the appellants in 1956 and 1957. By law, all these alienations are null and void. Even under the deed dated 07.09.1921, by which the endowment was created, the trustees had no power of alienation. Therefore, irrespective of whether steps were taken for the restoration of the properties or not, those alienations are null and void. If the appellants, who fight for the devolution of trusteeship, are interested in honouring the wishes of the founder, they should certainly take steps to recover possession of the properties already alienated.
59. Therefore, in fine, the last contention of Mr. M. Vallinayagam, learned senior counsel for the appellants, that the appointment of the fit person was illegal and that the next in the line of succession should have been appointed, merits acceptance. Interestingly, none of the seven charges framed against any of the appellants allege that they ever failed to perform the mandagapadi in a befitting manner. Therefore, the obligations created under the document of the year 1921, creating an endowment, appear to have been fulfilled all these years by the descendents of the founder of the endowment. It is only when there is any laxity on the part of the trustees in the performance of these obligations that their complete removal from the scene, if at all it is legally possible, can be resorted to.
60. Therefore, the writ appeals are allowed and the common order of the learned Judge is set aside. The writ petitions filed by the appellants would stand partly allowed to the following effect:
"(i) The order placing the trustees under suspension and framing charges against them is upheld. The competent authority is directed to proceed with the enquiry into the charges and pass final orders within a period of three months from the date of receipt of a copy of this order.
(ii) The order of appointment of fit person is set aside. The appropriate authority shall appoint the next in the line of succession in the family of the founder as the trustee/trustees, within a period of one week from the date of receipt of a copy of this order.
(iii) No order as to costs. Connected miscellaneous petitions are closed."
