Sri-la-Sri Ayapanateswara Pandara Sannadhi and Others vs The Commissioner, Hindu Religious and Charitable Endowments

K. Veeraswami, C.J.—The question which arises in these matters is whether the Commissioner, in appointing non-hereditary trustees to the

institutions concerned, should follow the procedure u/s 47(2) of Madras Act XXII of 1959. It is not in dispute that these institutions are governed

by a scheme of administration settled by Court which makes provision for appointment of two non-hereditary trustees along with the hereditary

trustee who is the Madathipathy. Section 1(a) of Madras Act XIX of 1951 provided that, notwithstanding the repeal of Madras Act II of 1927,

schemes settled shall, in so far as they are not inconsistent with the Act, be deemed to have been made by the appropriate authority under the

corresponding provisions of the Act, and shall, subject to the provisions of clause (b), have effect accordingly. We are not here concerned with

clause (b). The effect of this provision was, by adopting schemes settled by courts to schemes by the appropriate authority under the

corresponding provisions of the Act, the powers exercisable under such schemes were transferred to the appropriate authority under the Act. If

the matter stood there, Mr. Srinivasan for the appellant and the petitioner admittedly could not say that the Commissioner, in appointing non-

hereditary trustees, should make an enquiry as is contemplated by Section 47(1) of Madras Act XXII of 1959. But the 1959 Act, while repealing

the 1951 Act, made a provision which is Section 118, more or less corresponding to Section 103 of the 1951 Act. Section 118 by clause 2 (b)

provides that if any provision contained in any scheme settled or deemed to have settled under Madras Act II of 1927 and in force immediately

before September 30, 1951, is repugnant to any provision contained in the Act, the provision in the Act shall prevail. Clause (a) of the sub-section

is similar to clause 9a) of Section 103. But, because of clause (b)(i) of sub-section (2) of Section 118, the contention is that this has made a change

in the law, so that, even where a scheme provides for appointment of non-hereditary trustees, the Commissioner, in exercising the power of

appointment, should follow the procedure prescribed by Section 47(2).

We are unable to accept this contention. We do not think that there is anything in the scheme for the institutions which is repugnant to any

provision of the 1959 Act. Apart from that, a careful reading of Section 47(2) itself would show that it has no application to an institution which

was governed by a scheme of administration settled by court providing for appointment of non-hereditary trustees. This is because the enquiry

contemplated by Section 47(2) is for the purpose of the Commissioner satisfying himself that the affairs of the institution are not likely to be

properly managed by the hereditary trustee or trustees. it is only on such satisfaction the Commissioner can invoke his power of appointment of

non-hereditary trustees. That is not the case here. The satisfaction is already there of the Court which settled the scheme of administration. The

appeals as well as the petition are dismissed. No costs.

Order accordingly.