N T SHANMUGHAM Vs. KONDALAVANNAN

JUDGEMENT

(1.) The Appellants (who are the legal representatives of the sole plaintiff) having lost before the trial Court as well as before the learned single Judge of this Court, has preferred the above appeal. The plaintiff laid a suit in O.S.706 of 1977 on the file of the learned Subordinate Judge, Coimbatore against the respondents 1 to 7 and the father of the respondents 8 and 9 herein praying the Court to grant a decree in her favour as well as 7th defendant (who is 6th respondent in this appeal) setting aside the order of the Commissioner, HR & CE i.e, 8th defendant (who is 7th respondent in this appeal) in A.P.104 of 1975 and further declaring that the plaintiff and the 7th defendant are entitled to hold office as the hereditary trustees of the temples or in the alternative, the defendants 1 to 6 are entitled to hold office as hereditary trustees of the above temples and then declare that the plaintiff and the 7th defendant are entitled to hold office as the hereditary trustees along with the defendants 1 to 6 as per the turns to which they are entitled to under law.

(2.) The genealogical tree given hereunder would disclose the relationship between the parties. Kondaswamy Nadar | | Ramaswamy Nadar | | | | | Rangaswamy Nadar Kondaswamy Nadar Thiruvenkataswami | | Nadar | | | | | | Govindaswamy Nadar Ramaswamy Nadar Selvanambi Nadar | | | | | | Srinivasamurthy (D-1) | | | | Adilakshmi Thayammal | (Plaintiff) (D-7) | | | | | | Kondalvannan Reghuraj Karthikeyan Thirumalai- Jagadeesan (D-2) (D-3) (D-4) swamy(D-5) (D-6)

(3.) The averments in the plaint are to the following effect. Plaintiff's father Selvanambi Nadar and his grandfather Kondaswami Nadar constructed the temples of Badrakaliamman, Pandurangan and Selva Vijayakar temple at Nanjundapuram. Till death, Kondaswami Nadar was acting as trustee and thereafter his only son Ramaswamy Nadar succeeded to the trusteeship and was so acting. When Ramaswamy Nadar died, his three sons Rengasamy Nadar, Kondaswami Nadar, Thiruvengadaswami Nadar succeeded to the trusteeship. The plaintiff's father died when he was comparetively young, leaving his only son Selvanambi Nadar. After some time, that was in 1973, Selvanambi Nadar died and thereafter Rengaswamy Nadar died leaving his only son Govindaswamy. The first defendant Srinivasamurthi was the only son of Govindasamy Nadar. Kondaswamy Nadar, the other son of Ramaswamy Nadar died leaving his only son Ramaswamy Nadar. The said Ramaswamy also died leaving his five sons, who are defendants 2 to 6 herein. A partition took place on 30.10.1914 between Ramaswamy Nadar, Kondaswamy Nadar and Selvanambi Nadar and the properties in Ramanathapuram village bearing survey No.126/2, 127/2, 210 and 551 were endowed to the above temples. The Trust was created by means of the said partition deed and a provision was also made for the management of the above said three temples and according to which Ramaswamy Nadar to be in management of the temples and their properties till his death and thereafter, each branch of his three sons should be in management of the above said temples and their properties for one year each by turn. However, the said arrangement mentioned in the deed was not given effect to. When Ramaswamy Nadar died, Selvanambi Nadar assumed management of the temples and their properties till his death in the year 1973. The branches of Rengaswamy Nadar and Kondaswamy Nadar did not claim any right. Govindaswamy Nadar son of Rengaswamy Nadar and Ramaswamy Nadar son of Kondaswamy Nadar were never in the management of the above temples and properties. In fact, Selvanambi Nadar was in management of the above said temple and their properties till his death in the year 1973 in spite of the fact that several proceedings were instituted to dislodge the Selvanambi Nadar. The frustrated defendants 1 to 6 in the year 1967 filed an application for framing of a scheme for the above temples and the same was dismissed. Again, the defendants 1 to 6 filed an application in O.A.88 of 1970 on the file of the Deputy Commissioner for framing of a scheme providing for the management of the above temples by the three branches in turns of one year each. This was objected to by Selvanambi Nadar on the ground that the defendants 1 to 6 and their predecessors never exercised the right of management and that Selvanambi Nadar had perfected his right to the management of the temples and its properties by adverse possession. The said application was allowed erroneously by the Deputy Commissioner. In the meantime Selvanambi Nadar died and the plaintiff as legal representative of the late Selvanambi Nadar, filed an appeal in A.P.104 of 1975 on the file of Commissioner, H.R. & C.E. Board against the order of the Deputy Commissioner framing a draft scheme in O.A.88 of 1970. However, the same was dismissed. Aggrieved by that, plaintiff filed a suit in O.S.706 of 1977 on the file of Sub Court, Coimbatore under Section 70 of the H.R. & C.E. Act, mainly contending that the Commissioner ought to have considered the objections raised and disposed of the matter only on merits. The view taken by the Commissioner that the appeal had become infructuous is not sustainable in law. According to the plaintiff, when the draft scheme itself is challenged, there is no question of the appeal becoming infructuous. According to the plaintiff, she has overwhelming documentary evidence which would show that the defendants 1 to 6 have no manner of right of management of the temple and their properties. The plaintiff also contended that if for any reason Court comes to the conclusion that the defendants 1 to 6 are entitled to participate in the management then in any event the plaintiff and the 7th defendant should also be declared as entitled to exercise their right of management of the above temples and its properties along with the defendants 1 to 6 inspite of the fact they belonged to female sex as per the turn. The order of the Commissioner, which is dated 16.10.1976 was served on the counsel for the appellant on 1.2.1977. Notice under Section 80 of Code of Civil Procedure was also given to the Commissioner and that period has to be deducted from the period of limitation prescribed under Section 70 of Act 22 of 1959.