MANU/TN/0322/1989

Equivalent Citation: 1989-1-LW593, (1989)2MLJ11

IN THE HIGH COURT OF MADRAS

Decided On: 23.06.1989
Appellants: Alangadu Immudi Aghora Sivacharya Ayira Vysia Mutt,
Nerinjipettai
Vs.
Respondent: Sankarasubramaniam and Ors.
Hon'ble Judges/Coram:
Bellie, J.
Case Note:
Trusts and Societies - Maintainability - Section 59 of the Hindu Religious
and Charitable Endowments Act, 1959 - First Appellate Court held that
trustees had no right to remove first Defendant from post of Madathipathi
without getting his sanction and taking proceedings in Court of law -
Hence, this Appeal - Whether, suit filed for removal of trustee of math
included Madathipathi was maintained against First Defendant - Held, it
was cleared from provision of Section 59 of the Act that suit would be filed
by Commissioner or any two or more persons who were interested, required
to obtain consent in writing from Commissioner for removal of trustee of
math included Madathipathi - However, it was found that suit was filed by
mutt itself represented by Chairman of committee of trustees - Moreover, it
was found that consent from commissioner was said to have been obtained
under Ex.A.63 but persons to whom sanction was given had not filed suit -
Thus, it was clear that Ex.A.63 would not be said to be valid sanction of
Commissioner to file suit - Further, it was pointed out that suit has been
filed only against first Defendant when he was minor and no guardian had
been appointed for him - Therefore, it cleared that suit against First
Defendant was not legally instituted - Hence, suit was defective and was
not maintained against First Defendant - Appeal dismissed.Ratio
Decidendi"If sanction is given to two persons for instituting suits against
trustees, then one of them alone cannot sue without getting sanction to
exercise of right of suit."
JUDGMENT
Bellie, J.
1 . The plaintiff mutt known as Alangadu Immudi Aghora Sivacharya Ayira Vysia
Madam, Nerinipettai, is the appellant in this Section on appeal. The suit was filed for
declaration that the installation of the first defendant as the Madathipathi of the
plaintiff mutt is void ab-initio, or in the alternative for removal of the first defendant
from his office for misconduct. The trial court dismissed the suit as regards the main
relief but decreed as regards the alternative relief. Against that the first defendant
filed an appeal and the plaintiff filed a cross objection aggrieved by the rejection of
main relief. The first appellate court allowed the appeal and dismissed the cross
objection. As against this judgment, now, the plaintiff has filed this second appeal.
2. The necessary facts of the case may be briefly stated thus:
The plaintiff mutt was founded by the Ayira Vysya community which is a

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 section of the Hindu community. The mutt owns extensive movable and
immovable properties. For administration of the mutt a scheme was framed
by the Deputy Commissioner, Hindu Religious and Charitable Endowments,
which was modified by the commissioner-second defendant on appeal.
Subsequently a suit O.S. No. 155 of 1956 was filed in the court of the
Subordinate Judge, Erode, and that court framed a scheme on 24.12.1958
(Ex.A.73). The scheme provides for selection and installation of a
Madathipathi for the plaintiff mutt. As per the terms of the scheme a
committee of trustees were elected and after their term of office of five years
another committee was elected but that committee was dissolved before their
term of office and therefore a third committee was elected in December,
1975. This committee selected the first defendant who was then 12 years old
for the post of Madathipathi of the plaintiff mutt which was vacant, with the
help of His Holiness Sankaracharya of Kanchi Kamakoti Peetam,hereinafter
referred to as His Holiness. A document was executed between the committee
of trustees and the first defendant's father which was registered as an
adoption deed and then the first defendant was installed as Madathipathi. To
make the first defendant fit for the office of Madathipathi tutors were
engaged to impart him lessons in Vadas, Agamas, Sastras etc.
3. It is plaintiff's case that soon it was found that the first defendant had no bent of
mind that would qualify him to be a spiritual head of the vast community. He refused
to discipline himself to the rigours of the office and to take lessons from the tutors
and training from the Gurus nominated by His Holiness. All efforts by the trustees,
tutors, Gurus and even His Holiness to make the first defendant disciplined were of
no avail. He would often absent himself from the Veda classes without any reason
and refused to perform the daily poojas and often went away from the mutt without
informing anybody. He refused to account for the receipt of Padakanickais received
by him and thus he has committed breach of an obligation cast upon the
Madathipathi under the terms of the scheme. Then the first defendant himself
expressed his unwillingness to be a Madathipathi and on 2.7.1978 he went away with
his father with the result there is no Madathipathi in the mutt. This behaviour of the
first defendant amounts to misconduct as contemplated in the scheme for removal of
Madathipathi. The second defendant-Commissioner, Hindu Religious and Charitable
Endowments-was informed at every stage about the behaviour of the first defendant.
It is the further case according to the plaintiff that the selection and appointment of
the first defendant as Madathipathi by the Board of trustees was incompetent and had
no legal force and hence it is void. Therefore the first defendant can never be the
Madathipathi. Therefore the suit is filed for declaration that the first defendant is not
the Madathipathi or in the alternative for removal of him from the post of
Madathipathi.
4 . When the suit was filed the first defendant was a minor and subsequently he
became a major and he was declared accordingly and he filed a written statement. He
denied all the allegations made against him in the plaint. He denied that he ever
expressed unwillingness to be the Madathipathi and went away with his father.
Further he contended that after obtaining some documents from his father by force
himself and his father were taken away from the mutt and they were left at
Valayapatti in Pudukottai District. The first defendant's father sent a telegram to His
Holiness and also the second defendant about the highhanded acts of the Chairman
and trustees. The second defendant held an enquiry and passed an order that the
trustees had no right to remove the first defendant from the post of Madathipathi
without getting his sanction and taking proceedings in a court of law. The first
defendant would submit that he did not relinquish his office of Madathipathi. Even if
his father had given any consent that would not bind him. He would further submit

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that he did not behave in any manner that would amount to misconduct on his part.
He would submit that he conducted himself properly befitting the post of
Madathipathi. Then he contends that he was appointed Madathipathi properly as per
the rules and therefore his appointment is not illegal to be questioned. He further
submits that the suit is not maintainable. Therefore the suit is liable to be dismissed.
5 . The second defendant in the written statement merely prayed for passing
appropriate orders.
6. As stated above, the trial court dismissed the suit with regard to the main relief of
declaration that the installation of the first defendant as Madathipathi is ab-initio
void, but decreed with regard to the alternative relief for removal of the first
defendant from the office of Madathipathi for misconduct. As further stated above the
first appellate court allowed the appeal filed by the first defendant and dismissed the
cross objections filed by the plaintiff. The result is the suit stands dismissed.
7 . In this second appeal filed by the plaintiff, arguments were advanced only in
support of their case on which they prayed for the alternative relief that the first
defendant may be removed from the office of Madathipathi for his misconduct. No
argument was advanced as regards the main relief claimed i.e. for declaration that
the installation of the first defendant as Madathipathi is ab-initio void. Therefore as
regards the appellant-plaintiffs case we have to see whether there is any point of law
to argue as against the decision of the first appellant court that no case has been
made out against the first defendant that he is liable to be removed from the office
for misconduct.
8 . On the side of the first defendant-first respondent (second defendant Hindu
Religious and Charitable Endowments Board is the second respondent) it was not
only argued that as a question of fact the first appellate court has found that there is
no misconduct on the part of the first defendant but it was also argued that the
courts below have gravely erred in rejecting the plea taken by him that the suit itself
is not maintainable. We will first see whether there is any substantial question of law
raised by the appellant-plaintiff in the second appeal against the judgment of the first
appellate court.
9. From a reading of the plaint it appears that the case of the plaintiff is that the first
defendant committed acts of misconduct in not attending veda classes regularly, not
doing poojas properly, not accounting for the Padakanickais received by him, and by
leaving the Madam and going away with his father on 2.7.78. Though several issues
have been framed by the trial court no specific issue has been framed with regard to
the allegation that the first defendant failed to attend classes regularly and failed to
do poojas. It further appears that there is a general issue framed to the effect that
whether the first defendant is liable to be removed from office on the ground of his
misconduct. With regard to all the aforesaid four alleged misconduct the trial court
has not given a clear finding but has just stated that in cannot be accepted that the
first defendant attended the classes regularly, did poojas properly, accounted for the
Padakanickais, and he did not leave the mutt of his own accord. On the other hand I
find from the Judgment of the first appellate court that in respect of each of the
above-said four subjects a specific and clear finding has been given. According to the
first appellate court the first defendant has not committed any of the misconduct
alleged against him. These findings appear to be purely findings of fact and therefore
unless any finding is perverse or of grave error that results in miscarriage of justice,
the second appeal cannot be maintained. In this context Mr.V.R. Venkataraman,
learned Counsel for the first defendant strongly relies on the dictum laid down by the
Supreme Court in "Deity Pattabhiramaswamy v. S. Hanumayya and Ors. A.I.R.1959

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S.C.57, wherein it has been held that:
The provisions of Section 100 are clear and unambiguous. There is no
jurisdiction to entertain a second appeal on the ground erroneous finding of
fact, however gross the error may seem to be. Nor does the fact that the
finding of the first appellate court is based upon some documentary evidence
make it any the less a finding of fact. A judge of the High Court has,
therefore, no jurisdiction to interfere in second appeal with the findings of
fact given by the first appellate court based upon an appreciation of the
relevant evidence.
The Supreme Court has quoted in the Judgment a passage from the Judgment of the
Privy Council in paragraph 13 which reads:
There is no jurisdiction to entertain a second appeal on the ground of
erroneous finding of fact, however gross the error may seem to be.
When considered in this background of the law it does not appear to me that this
court can interfere with any of the findings arrived at by the first appellate court.
Mr.KAlagumalai, learned Counsel for the appellant-plaintiff would however contend
that the first appellate court has erred in law in failing to understand the scope of the
misconduct alleged. According to the learned Counsel the word misconduct is a
relative term and in this case it should have been considered as regards the first
defendant's conduct as a Madathipathi and not his conduct as an individual divorced
from his position as Madathipathi, but the first appellate court has considered the
alleged misconduct as a general term relating to any individual and thus it has come
to a wrong conclusion that there was no misconduct. I am afraid I find there is no
substance in this submission. A reading of the judgment of the first appellate court
would clearly show that the first appellate court has considered the alleged
misconduct one by one as the acts alleged against the first defendant in his capacity
as the Madathipathi and there is absolutely no basis for the contention of the learned
Counsel.
As regards the alleged misconduct Mr. K. Alagumalai mainly argued on the alleged
conduct of the first, respondent that he did not attend the veda classes. He would
submit that two of the documents filed by the plaintiff on this point have not been
considered by first appellate court and they are ExsA.22 and A50 ExA.22 dated
28.11.1977 is a letter sent by the then Manager of the Madam P.W.2 to the chairman
and ExA.50 dated 21.2.1978 is fortnightly report sent by P.W.2 to all the trustees. In
Ex.A.22 it is stated among others that the first defendant was not properly studying
and in Ex A.50 it is mentioned that he did not attend veda classes for 15 days. Even
if it is true that the first defendant did not attend veda classes for a few days can it
be said to be misconduct on his part as Madathipathi? It must be remembered that he
was installed as Madathipathi when he was just 12 years old on 5.2.1977, and when
he was thus 12 or 13 years old he is alleged to be guilty of misconduct. It is but
natural when a boy has been separated from his parents and made to live with
strangers in austerity in a mutt, he cannot be expected to behave in a manner as one
would like him to behave. For a few days' absence from the veda classes or even if
he shows some aversion to study vedas it cannot be said he does not behave
properly and he renders himself unfit to be a Madathipathi and hence he must be
removed. Thus there is absolutely no merit in the plea that the first defendant did not
attend veda classes and thus he is guilty of misconduct.
10. The further allegation against him is that he has not accounted for the amounts
received by him as Padakanickais Here also it must be remembered the first

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defendant was in his tender age. It has not been stated as to how much amount he
received and how much amount he has not accounted for P.W.I Clerk in the Madam
has stated that the first defendant would give the amount received by him as
Padakanickai to him or to the Manager in the evening or next day morning. P.W.2 the
then Manager has stated that the first defendant used to give accounts for
Padakanickais and again he has stated that the amounts received by him (P.W.2)
would be deposited in Bank. Even if the first defendant had spent some amount out
of Padakanickais received by him it will not by itself amount to misconduct. In the
scheme Ex.A.73 itself a discretion has been given to the Madathipathi to spend
Padakanickais received by him and the only prohibition is that he should not spend
the same for illegal or immoral purposes. No allegation has been made anywhere that
the first defendant has spent Padakanickais for any illegal or immoral purposes. No
doubt it is stated that the Madathipathi can spend Padakanickais at his discretion in
furtherance of any religious or charitable object or use, but in the absence of any
proof that he has spent the Padakanickais for immoral or illegal purpose it must be
presumed that he has spent the amount for permissible cause. Thus there is
absolutely no merit in the case of the plaintiff that he was guilty of misconduct in not
accounting for Padakanickais.
11. It is next said that he was not doing poojas regularly. To repeat, he was a boy of
12 or 13 years. It is not the case of the plaintiff that the first defendant refused to do
pooja. It is the evidence of P.W.4, an employee of the Madam who used to do poojas
and take classes in vedaparayanam that the, first defendant used to do poojas
regularly both in the morning and evening and if the first defendant was not well he
would do pooja. In this state of evidence the plaintiff's plea that the first defendant
was guilty of misconduct in not doing pooja cannot be countenanced.
12. Lastly it is contended that the first defendant has on 2.7.78 left the Madam along
with his father stating his unwillingness to be the Madathipathi. First defendant
denies that he ever expressed unwillingness to be the Madathipathi and he would
state that by force his father's signatures were obtained in papers and they (he and
his father) were taken from the Madam to their village Valayapatti and left there. The
first appellate court has considered in detail the entire evidence touching this point
and has concluded that the first defendant did not willingly leave the Madam. I do not
think this point can be reconsidered in the second appeal. However I would just say
that the very fact that within two days the first defendant's father has sent a telegram
Ex.B.13 to the second defendant stating that the trustees took him and his son from
Nerinjipettai (Madam) and his son's life was threatened and he (father) was forced to
write in stamp papers and then himself and his son were taken in a car to his home
at Valayapatti and the contents of the said papers will not bind them, would strongly
indicate that the first defendant did not of his own accord left the Madam. Therefore I
hold that the finding of the first appellate court that there was no voluntary leaving
from the mutt of the first defendant is correct and that cannot be interfered with.
Thus there is absolutely nothing to show that the first defendant was guilty of mis-
conduct as Madathipathi and therefore he is liable to be removed from office.
1 3 . Considering the nature of the office of Madathipathi unless there are strong
grounds and not flimsy reasons for holding that he is guilty of mis-conduct he cannot
be removed from the office. The scheme (Ex.A.73) describes the Madathipathi as the
religious and secular head of the mutt. In "The Commissioner, Hindu Religious
Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt"
MANU/SC/0136/1954 : [1954] 1 SCR 1005 , in paragraph 11, it is observed by the
Supreme Court that the office of a Madathipathi is generally held by an ascetic whose
connection with his natural family being completely cut off. In "Sud-hindra Thirtha
Swamiar and Ors. v. The Commissioner for Hindu Religious and Charitable

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Endowments, Mysore and Anr. MANU/SC/0388/1962 : AIR 1963 SC 966 , in
paragraph 9 it is stated that the Mahant of a Math is generally a sanyasin who has
renounced wordly affairs: he has no family ties either by blood or by marriage, and
in a theoretical sense he has taken a vow of not owning any property. It is clear
therefore that generally once a person is appointed as Madathipathi he becomes an
ascetic and loses all his connections with his family and the worldly affairs. From this
it could be understood what would be his position in life if he is removed from the
office of Madathipathi. It would appear that he will not have any career at all. Added
to this, in this particular case, the Madathipathi was a boy of just 13 years old and he
was sought to be removed from his office within a short time of 17 months, as
pointed out by the first appellate court, from the time of his installation. It is not the
case of the plaintiff mutt that this boy is so incorrigible that he could never be made
to or never will behave properly. Therefore the first appellate court has rightly held
that no case of misconduct has been proved against the first respondent.
1 4 . Now, as already said, Mr.V.R.Venkataraman, learned Counsel for the first
defendant-first respondent, further argues that the suit itself is not maintainable. He
would submit that the suit is in competent for three reasons viz.,(i) for removal of a
Madathipathi a suit can be filed only under Section 59 of the Hindu Religious and
Charitable Endowments Act, 1959, hereinafter referred to as the H.R.&C.E. Act.This
section deals with suit for removal of trustee of math or specific endowments
attached thereto Mr.V.R.Venkataraman submits that under this section a suit can be
filed only be the commissioner or any two or more persons having interest and
having obtained the consent in writing of the commissioner, but the present suit
purports to have been filed by the mutt represented by the Chairman of the
committee of trustees; (ii) consent from the commissioner is said to have been
obtained under Ex.A.63 but the persons to whom the sanction has been given have
not filed the suit;p and (iii) the first defendant was a minor at the time of filling of
the suit and no guardian has been appointed for him.
1 5 . As regards the first ground that the suit should have been filed by the
commissioner or by any two or more persons having interest and having obtained the
consent in writing from the commissioner, on the side of the appellant-plaintiff
Mr.K.Alagumalai would contend that the scheme itself provides for filing of suit and
as per that the suit has been filed and hence the suit is competent. He further argues
that Section 59 is applicable only to trustees, and Madathipathi is not a trustee within
the meaning of Section 59. Hence the first question arises is: whether a Madathipathi
is a trustee within the meaning of Section 59? A trustee has been defined in Clause
22 of Section 6 of the H.R.&C.EAct. As per this definition,
trustee" means any person or body by whatever designation known in whom
or in which the administration of a religious institution is vested, and
includes any person or body who or which is liable as if such person or body
were a trustee.
This would show that from the nature of ones position qua administration of the
religious institution a person must be held to be a trustee and not from mere
designation or appointment as such Mr.K.Alagumalai, learned Counsel for the
appellant-plaintiff, however would read Section 26 which deals with the qualification
of the trustees and submits that as per this section one cannot be a trustee, except in
the case of hereditary trustee, if he is less than 25 years of age and therefore the first
defendant who was just 12 years cannot, by any stretch of imagination, be said to be
a trustee. A careful reading of this section will show that it deals with the person who
is appointed or proposed to be appointed with the designation of a trustee and
therefore this section does not cover the definition of trustee in Clause 22 of Section

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6. Now, as seen above, the scheme itself describes the Madathipathi as the religious
and secular head of the mutt. Under Clause 13 of the scheme the Madathipathi has
right to appoint an Executive Officer to assist in the administration of the mutt and
that Executive Officer will be under the control of the Madathipathi. As per Clause 18
the Madathipathi will be the appellate authority in respect of any disciplinary action
taken by the Chairman of the committee of trustees against any of the servants of the
mutt. Clause 22 states that the committee of trustees can draw travelling allowances
only after obtaining sanction from the Madathipathi. According to Clause 24 the
Madathipathi is the ultimate authority who would decide as regards a question
whether a person of the community of the mutt is a disciple or not. Clause 26 states
that the Madathipathi is the religious and spiritual head of the disciples and of the
endowments and head of the secular affairs of the mutt. From all these it is manifest
that the Madathipathi is the superior head of the mutt both spiritually and
administratively. In " The Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Muff MANU/SC/0136/1954 : [1954] 1 SCR
1005 it has been held that the head of the mutt (Madathipathi) is the religious and
secular head of the mutt, and he has to discharge the duties of a trustee and he is
answerable as such. In "Krishna Singh vs Mathura Ahir and others A.l.R.1980 S.C.707
it is stated to the effect that,
..a math is an institutional sanctum presided over by a superior who
combines in himself the dual office of being the religious or spiritual head of
the particular cult or religious fraternity, and of the manager of the secular
properties of the institution of the math.
From all these it is apparent that the Madathipathi is a trustee within the definition of
'trustee' in Clause 22 of Section 6. Further, of the reasons enumerated from Clauses
(a) to (i) for removal of a trustee in Section 59, Clause (g) reads,
the adoption of devices to convert the income of the institution or of the
funds or properties thereof into 'pathakanika'
and Clause (h) reads,
leading an immoral life or otherwise leading a life which is likely to bring the
office of head of the math into contempt.
There is no, gain-saying that these two clauses relate only to Madathipathi. Therefore
Section 59 which provides for filing of a suit for removal of a trustee of a math
includes a Madathipathi also as a trustee. However it is argued that Clause 25 of the
scheme (ExA.73) itself provides for filing of a suit for removal of Madathipathi. But it
does not read so and it only speaks of the term of office of the Madathipathi stating
that he shall hold office until death or removal for his misconduct by a decree or
order of the Court. Now, as above seen Section 59 provides that a suit can be filed by
the commissioner or any two or more persons having interest and having obtained
the consent in writing from the commissioner. But the present suit purports to have
been filed by the mutt itself. In this connection Clause 15 of the scheme was read out
and it was argued that in any civil, criminal and revenue proceedings the mutt shall
be represented by the Executive Officer or Chairman as the case maybe and this
would show that a suit can be filed by a mutt. But this clause in general relates to
proceedings in the court and as regards the filing of a suit as against the trustee, in
the Act itself it is specifically provided in Section 59 as to how it shall be filed. Even
if it can be said that there is any repugnancy between Clause 15 of the scheme and
Section 59 of the Act (old Section 52 of Act 1951) the section will prevail over the
clause in the scheme. Thus the suit suffers from the defect that it has not been filed

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by the commissioner or two or more persons having interest and having obtained the
consent in writing from the commissioner as required under Section 59.
16. As regards the next point raised by Mr. Venkataraman, Ex.A63 appears to be a
consent letter obtained from the commissioner for filing of a suit and in this regard
Mr.Venkataraman argues that the consent has been obtained by eleven trustees of the
mutt but the suit purports to have been filed by the mutt represented by the
Chairman of the Board of trustees and thus the suit having not been filed by those
who have obtained the consent the suit is not maintainable. This submission of the
learned Counsel has much force. When consent has been given to certain persons to
file a suit all those persons must file the suit and not by anyone or more without all
of them. In Narain Lal and Anr. v. Seth Sunderlal Tholia Jorhi and Ors.
MANU/SC/0008/1967 : [1967] 3 SCR 916 , the Supreme Court held that:
An authority to sue given by the Advocate-General under Section 92 C.P.C to
several persons is a joint authority and must be acted upon by all jointly. A
suit by some of them only cannot be in conformity with the provisions of
Section 92(1). Where, therefore, sanction is given to four persons and one of
them dies before the institution of the suit, the suit by the remaining three is
incompetent. In such a case a fresh sanction must be obtained by the
survivors for the institution of the suit.
In Venkatesha Mallia v. Bammapalli Ramayya Hegade and Ors. A.I.R.1915 Mad 127 a
Division Bench, of this court dealing with the sanction obtained under Section 18 of
the Religious Endowments Act (20 of 1863) rules (as the head notes correctly read)
that,
Sanction for instituting suits against trustees of religious establishments
should be construed strictly without enlarging their scope, the object of
requiring sanction being of protect managers from vexatious suits.
Where sanction is given to two persons, one of them alone cannot sue
without getting the sanction amended, the sanction being a condition
precedent to the exercise of the right of suit.
It is therefore clear that Ex.A.63 cannot be said to be a valid sanction be the
commissioner to file the suit.
17. As regards the third point raised, admittedly the suit has been filed only against
the first defendant when he was still a minor. No guardian has been appointed. There
is no doubt therefore the suit against the first defendant is not legally instituted. It
follows therefore the suit cannot be maintained against him. But the learned Counsel
for the appellant-plaintiff would contend that this point has not been raised either in
the trial court or in the first appellate court. But a perusal of the written statement
and the grounds of appeal filed by the first defendant in the first appellate court
would show that this point has been clearly a question of law and goes to the root of
the matter even at this stage this point can be argued. In "Steth Loon Koran Sethiya
v. Ivan E.John and Ors. MANU/SC/0222/1968 : [1969] 1 SCR 122 the supreme court
laid down that even in the execution stage a question of law which goes to the root
of the matter can be raised.
1 8 . Therefore for the above-said three reasons the suit itself as against the first
defendant is defective and unsustainable.
19. In the result the appeal has to be dismissed. I order accordingly considering the
circumstances of the case there will be no order as to costs.

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