Decided on November 01,1972



- (1.) THE petitioner was found in an earlier proceeding by the Deputy Commissioner for Endowment to be the hereditary trustee of Sri Rama Mandir in Thimmasamudram village. THE institution was clubbed along with some other religious institutions and an Executive Officer was appointed for all the institutions. THE Executive Officer filed an application before the Deputy Commissioner for the grant of a certificate under section 93 of the Act in order to enable him to recover possession of the properties, records, etc., of the Sri Rama Mandir from the petitioner. THE Deputy Commissioner issued the necessary certificate observing that the respondent (petitioner herein) did not attend the Court and made no representation. Against the order of the Deputy Commissioner the petitioner filed a revision before the Commissioner in which he alleged that he had no notice either of the proceedings clubbing the temple with other temples or of the application made to the Deputy Commissioner under section 93 of the Act. THE Commissioner found that the petitioner was merely feigning ignorance and that he had evaded service of the notice of the application issued under section 93. THE petitioner raised a contention before the Commissioner that the application under section 93 was not maintainable by the Deputy Commissioner. That contention was overruled. THE revision petition was dismissed. THE petitioner has filed the present application for the issue of a writ to have the orders of the Deputy Commissioner and the Commissioner under section 93 of the Act quashed.
(2.) THE principal submission of Sri Y. G. Krishnamurthy, learned Counsel for the petitioner was that section 93 had no application as the petitioner had not ceased to be a hereditary trustee. He urged that a certificate under section 93 could be granted only where a hereditary trustee, if there was one, had ceased to be such hereditary trustee and not otherwise. THEre seems to be force in the submission of Sri Y. G. Krishnamurthy. Section 93 (1) casts a duty on an ex- office-holder to deliver possession of the records, accounts and properties of an institution or an endowment to his successor. ' Ex office-holder ' is defined in section 93 itself as hereditary trustee or trustee, Executive Officer, officeholder or servant of the institution or a person who is appointed to discharge the functions of a trustee and who has ceased to be such hereditary trustee, Executive Officer, office-holder or servant or a person who has ceased to discharge the functions of a trustee. ' Successor ' is defined as the person who succeeds an ex-office-holder or who is appointed in his place. Section 93 (2) (a) provides that where a successor is resisted in obtaining possession of the records, accounts or properties of the institution by an ex-office-holder or person claiming or deriving title from him or by any person who is otherwise not entitled to be in such possession, the First-Class Magistrate having jurisdiction shall direct delivery of possession on the production of the order of appointment of the successor and a certificate issued by the Commissioner. THE situation contemplated by section 93, therefore, is an officeholder ceasing to be an office-holder and a successor being appointed and such successor being resisted by the ex-office- holder or other person not entitled to be in possession. THE person who is competent to maintain the application for possession is the successor, that is to say, the person defined as the successor in section 93 (1). THE person defined as the successor is the person who succeeds the ex-office-holder or is appointed in the place of the ex-office-holder. In the present case the petitioner continues to be an office-holder. He cannot by any stretch of imagination be called an ex-office-holder. THE Executive Officer cannot, therefore, be called his successor and if he cannot be called his successor he cannot maintain the application' under section 93 (2). It is true that under section 27 (4) (b) it is the Executive Officer and not the hereditary trustee that is entitled to be in custody of the records, accounts, properties etc., of the institution or the endowment. But the summary remedy provided by section 93 is not available to him to recover possession, of the records, properties etc. if they are in the possession of the hereditary trustee so long as that person continues to be a hereditary trustee. It will be open to him to take other proceedings to recover possession of the records and properties of the institution from the hereditary trustee. It may also be open to the Commissioner or other authority under the Act to remove the petitioner from the hereditary trusteeship for non- compliance with the provisions of the Act in which case perhaps an application under section 93 may be maintainable. We are not now concerned with such a situation. THE petitioner continues to be a hereditary trustee and the application was, therefore, not maintainable. THE Writ Petition is accordingly allowed, but there will be no order regarding costs Advocate's fee Rs. 100. Writ petition allowed.;

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