The Advocate-General of Madras vs Kuppuswami Gurukkal and Others

Frederick William Gentle, C.J.—The sole matter for consideration in this appeal is the construction of Section 75-A of the Madras Hindu

Religious Endowments Act, 1927. That section was added by the Amending Act X of 1946 which came into force on 2nd April, 1946.

The relevant facts can shortly be stated. In C.S. No. 202 of 1938, this Court passed a decree on 2nd December, 1940, framing a scheme for

the Sri Dharmaraja and Sri Vembuliamman temples. The scheme provides for a single trustee and that every vacancy in the office of trusteeship

shall be filled by the Court on an application made to it for that purpose. The first trustee was named in the scheme, and, he having died, the Court

on 31st January, 1946, appointed another in his place. This was before the addition of Section 75-A to the Act. The gentleman so appointed

refused to accept the office whereupon the first and second respondents in this appeal, who are worshippers of the temples, made an application

to this Court after Section 75-A had been included in the Act, seeking for the appointment of a trustee. Notice of the application was given to the

Advocate-General, Madras, who appeared at the hearing of the application before Kunhi Raman, J. The learned Advocate-General contended

that by virtue of the included section the Hindu Religious Endowments Board and not the Court has vested in it the power of appointment of a new

trustee. The learned Judge rejected the argument and duly made an appointment to fill the vacancy. This is the appeal by the Advocate General

against the learned Judge''s order.

Section 75-A provides as follows:

In any scheme settled by a Court whether before or after the passing of this Act, u/s 92 of the Code of Civil Procedure, 1908, unless there is

anything repugnant in the subject or context, all powers of administration vested by such scheme in any Court, Judge, Committee or other authority

or person shall be deemed to have been vested in the Board and the Board shall, notwithstanding any provision of this Act, exercise such powers

in accordance with the said scheme.

It is manifest that by the scheme decree the Court alone is vested with the power of appointment of a trustee. The matter for consideration is

whether the section, cited above, has rendered that part of the scheme a nullity, deprived the Court of its power of appointment of the trustee and,

I would add, ousted the Court''s jurisdiction to make such appointment.

The section vests in the Board all powers of administration which are vested by a scheme settled by a Court in any Court, Judge, committee or

other authority or person. Unfortunately, the Act does not define either the word "" administration "" or the words "" all powers of administration.

The question for consideration is whether the appointment of a trustee is included in the"" word "" administration "" so that when a trustee is appointed

there is an exercise of a power of administration.

Mr. Subba Rao, appearing for the appellant placed some reliance upon the form of the scheme which is contained in the schedule to the decree

in C.S. No. 202 of 1938. It is headed, "" Scheme for the administration of Sri Dharmaraja and Sri Vembuliamman Temples, Choolai, Madras.

Clause 1 gives some definitions, Clause 2 provides that there shall be a single trustee and the provision, to which reference has already been made,

regarding the Court appointing a trustee to fill a vacancy in the office. Clause 3 sets out the powers and duties of trustees. Further provisions in the

schedule do not require reference.

The circumstance that the heading is ""a scheme for the administration "" under which provision is made for the appointment of trustees does not

render the act of appointment an act of administration. I think the heading is merely a convenient explanation of the contents of the schedule.

Administration"", to my mind, means the actual management, superintendence of the subject-matter of the scheme and the execution of all acts

arising and required to be performed in such management and superintendence. Whilst "" administration"" is not defined in the Act, Section 9(13)

defines "" trustee "" as meaning "" a person.... in whom the administration of a religious endowment is vested."" If the appointment of a trustee is an act

of administration of a religious endowment, then the trustee would be able to exercise the power of appointment of himself or of his successor.

Clearly that is not possible, at any rate under the present scheme. In support of the appeal, Mr. Subba Rao referred to Narayanamurthi v.

Achayya Sastrulu (1934) 47 M.L.J. 714 and he relied upon the observations of the judgment of the Court to be found at pages 718 and 719.

There it is expressed as the opinion of the Court that it is far from desirable that Courts should assume to themselves the continued supervision of

institutions, for the management of which they are called upon to frame schemes ; and that it was also undesirable that Courts should be burdened

with such tasks, and that under some of the schemes Courts constituted themselves in some manner as temple committees and the whole burden of

such functions was thrown on the Courts. It then proceeds:

We are also not satisfied that Courts of law are generally the best fitted to choose proper trustees.

In other words, they are not best fitted to make the appointment of trustees. Clearly there was a distinction drawn between the actual management,

superintendence or administration of a trust or institution and the appointment of a trustee for an institution. I can find no support in that judgment

for the contention that the appointment of a trustee is an act of administration of a trust to which he is appointed.

Undoubtedly, the individual who would carry out the acts of administration would be the trustee. It may be that in regard to some of his actions,

as the scheme in fact here provides, he might have to obtain sanction of the Court, but the actual administration itself is that of the trustee ; but

approval of some of the trustee''s acts might well be administration by the Court. When appointing a trustee, what is done is to appoint an

individual to effect the act of administration. I am unable to see any support for the suggestion that an appointment of a trustee must itself be an act

of administration and the exercise of a power of administration.

There is a further aspect. From the argument in support of the appeal, it must follow that the Board, in effect, steps into the shoes of the Court

and exercises the powers which the scheme confers upon it, if, u/s 75-A the Beard is entitled to make the appointment of a trustee. In other words,

as I said earlier, the jurisdiction of the Court is ousted by Section 75-A. The ouster of jurisdiction of the Court must be clearly and unambiguously

expressed when such is the intention of the Legislature. In considering whether the section in question dees effect ouster, reference can

conveniently be made to some other sections of the Act. Section 57(1) empowers the Board, in the circumstances therein specified, by order to

settle a scheme of administration of a temple. But by Sub-section (7) the trustee or any person having interest may within six months of the date of

publication of the order institute a suit to modify or set it aside. By Sub-section (9) any scheme of administration settled by a Court u/s 57 may be

modified or cancelled by the Court. Clearly, in any action taken by the Board u/s 5,7, the Court itself is the ultimate authority to decide finally all

matters with respect to the subject-matter of the scheme framed by the Board. By Sub-section (2) of Section 57, the scheme settled by the Board

may contain provisions for (a) fixing the number of trustees, (b) removing trustees, and (c) appointing new trustees. Clearly there the Board is

authorised to narne some authority other than itself to appoint trustees. The sub-section does not indicate that the Board itself must be the authority

to appoint trustees. Sections 63 and 65 contain corresponding provisions relating to schemes for maths, as does Section 57 in regard to schemes

for temples, being framed by the Board.

If the intention of Section 75-A had been for the Board, to supplant the Court and to oust its jurisdiction, I cannot see that provisions in Sections

57, 63 and 65 would be found as they are at the present moment. Since the Court is the ultimate authority finally to decide matters arising under

the sections mentioned, the unlikelihood that, u/s 75-A, the Board should supplant the Court, is manifest. The language of Section 75-A in no way

supports the argument that the provision, settled by this Court in its decree scheme, by which it is the appointing authority, is nullified. In my view,

there is no such intention and no such effect to be found in the section itself.

In my opinion, the appointing of a trustee is not the exercise of any power of administration, it is merely effecting the appointment of a person

who will carry out, the administration which is that individual''s duty to do. Also I am satisfied that Section 75-A does not withdraw from this Court

the power which it has under the scheme itself to appoint a trustee, in the case of a vacancy arising.

For these reasons, in my opinion, this appeal should be dismissed. The respondents will take their costs out of the temple funds.

Govindarajachari, J.

I agree.