IMPORTANT POINT
Trustees nominated by hereditary trustees after the coming into force of the Madras Hindu Religious Endowment Act, 1951 which stood repealed later by the 1959 Act cannot be recognised as hereditary trustees and such non-hereditary trustees rights are governed by the statutory provisions of the 1959 Act.

Headnote:Madras Hindu Religious Endowment Act, 1956-Section 63(b) r/w Section 6(11)- Suit declare trustees as hereditary trustees- Trustees were nominated by hereditary trustees after coming into force of 1951 Act which was later repealed by 1959 Act- Heriditary trustees who nominated present trustees were appointed prior to 1951 Act by founder of temple- Section 6(9) of 1951 Act omitted system of nomination which was there in 1927 Act-Section 6(11) of 1959 Act also does not recognise nominated trustees as hereditary trustees-Hence present trustees canot be described as hereditary trustees for purposes of 1959 Act- Their rights will have to be governed by provisions of Statute.
       Held : After the commencement of the 1951 Act, the definition of hereditary trustee contained in sub-clause (9) of Section 6 of that Act did not recognise a person who was nominated by other trustees, as hereditary trustees . Thus, so far those trustees nominated by the said five persons after the 1951 Act are concerned, they being persons nominated by the trustees who were nominated by Venkatarangayya s nominees, in our view, would not be hereditary trustees under Section 6(9) of the 1951 Act. It is true that the Board of trustees created by Venkatarangayya could be treated as a fluctuating body from time to time and any rights vested in that body to nominate hereditary trustees under sub-clause (6) of Section 9 of the 1927 Act, would remain unless taken away the 1951 Act. The question is whether after the 1951 Act was repealed in the 1927 Act, any rights created under the 1927 Act in the Board of trustees could continue in force and this question would depend upon the provisions of Section 103 of the 1951 Act. (Para 21)
       It will be noticed that under the definition of hereditary trustee in the 1951 Act, a person nominated by the Board of trustees is no longer to be treated as hereditary trustees . The same position prevails under sub-clause (11) of Section 6 of 1959 Act. Both the 1951 Act and 1959 Act do not describe a person nominated by Board of Trustees by an existing Board of trustees as hereditary trustees . (Para 22)
       It is true that rights vested in any person or authority under a repealed Statute are not to be deemed to be interfered with by the repealing Statute, unless there is any provision in the repealing Statute which expressly or by necessary implication interfere with the rights accrued to any persons or body under a repealed Statute of 1927. But in our view, the language contained in sub-clause (a) of Section 103 of 1951 Act evinces a clear intention to depart from the scheme of the 1927 Act and no longer to call the persons nominated by the Board of hereditary trustees after 1951 as hereditary trustees . In other words, if any trustees are nominated subsequent to the commencement of 1951 Act, by the Board of Hereditary trustees, (who came into office pursuant to the will of Venkatarangayya or their nominees) then those persons would not be governed by the definition of sub-clause (6) of Section 9 of the 1927 Act, but will be governed by Section 6(9) of the 1951 Act. Such persons cannot be described as hereditary trustees inasmuch as by altering the definition of hereditary trustess , the 1951 Act has chosen to interfere with an existing right of Board to nominate fresh trustees as hereditary trustees . We, therefore, hold that if any trustee has been nominated subsequent to the commencement of the 1951 Act by the Board of Trustees who were in office prior to the 1951 or by their nominees then such persons could not be called hereditary trustee within the meaning of sub-clause (6) of Section 9 of 1951 Act. Similarly, if the persons who were themselves not hereditary trustees after the 1951 Act, either by themselves or along with other hereditary trustees after 1951, nominated trustees, then such trustees would not be hereditary trustees. The position is no different after the 1959 Act. Therefore, the plaintiffs who were nominated as trustees subsequent to the commencement of the 1951 Act, cannot be described as hereditary trustees , for the purposes of 1951 Act or 1959 Act. (Paras 23, 24 & 25)
       This does not, however, mean that the right conferred on the Board of Trustees, whenever a vacancy occurs in the five places created by Venkatarangaiah, is done away with altogether by the 1951 Act or by the post 1951 Acts. It will be open to the nominated five trustees in office, from time to time to nominate fresh trustees whenever there is any vacancy in these five offices of trustees. Such persons can be trustees but cannot be called hereditary trustees . They will have to be described as non-hereditary trustees . What their rights are will necessarily have to be governed by the provisions of the statute. We need not go into the question as to their rights. Suffice to say that they are not hereditary trustees . (Para 26)

JUDGMENT

This is an appeal preferred against the judgment dated 15.11.88 of the High Court of Madras in LPA No. 4/1983. The appellants in the LPA before the High Court were Sri Y.R. Natarajan and Sri D. Srinivasan. The 1st respondent in the LPA was the Commissioner, Hindu Religious Endowments, Madras, the 2nd respondent, one E. Venkatasubbaiah and the 3rd respondent D. Adiseshayya. The 2nd and 3rd respondents were shown in the LPA as persons who died, and no legal representatives were brought on record. It also appears that the 2nd appellant D. Srinivasan was brought on record during the pendency of the first appeal before the learned Single Judge, in C.M.P. No. 4112/1978 on 20.7.1979. The first appeal A.S.No. 379/78 was filed by the Commissioner of Endowments, who was the defendant in the suit, against E. Venkatasubbaiah and D. Adiseshayya and Y.R. Natarajan. Learned Single Judge allowed the appeal of the Commissioner and the respondents in the 1st appeal filed the LPA. as mentioned above and the same was dismissed as stated earlier. It is against the above said judgment in the LPA. that this appeal has been preferred.

2 The following facts are necessary to be stated for disposal of this appeal.

One P. Venkata Varada Doss founded Sri Kothandaramaswami temple in question in the year 1891. He executed a Will on 9.7.1915 under which he gave absolute power to his brother-in-law D. Venkatarangaiah in respect of the properties dedicated to the temple and also directed the latter to administer the temple. It appears that the Inspector of Endowments in his report dated 5.3.1934 brought to the notice of the Endowments Board, Madras matters relating to the affairs of this temple, whereupon the Trustees were directed by the Board to produce accounts by way of reply. The then Administering Trustee, Sri D. Venkatarangaiah, who was the brother-in-law of the original founder, stated before the Board that no accounts were being maintained, as the properties were"private" properties. Thereafter, an enquiry under Section 84 of the Madras Hindu Religious Endowments Act, 1926 (Act 1/1927) (hereinafter called the 1927 Act) was initiated, to decide the nature of the temple. During the hearing of the matter, the Trustee gave up the contention that the temple was a private temple but, contended that the temple was an Excepted Temple , as defined in sub-clause (5) of Section 9 of the 1927 Act. The said contention was accepted by the learned Commissioner of Endowments in his order on 4.10.1935, stating that the institution was founded by Hari Doss s family and that the then Trustee, D. Venkatarangaiah, who was the brother-in-law of the founder, had absolute rights to administer the temple and that it was clear that this was a case of succession being specially provided for by the founder of an institution under sub-clause (5) of Section 9 of the 1927 Act. On that ground, it was held that the temple was an Excepted Temple . The relevant portion of the order reads as follows:

"It is clear from these that this is a case of Succession being specially provided for by the founder of an institution under Section 9 clause (5) of Madras Act II of 1927. Thus the temple is a public one falling under the clause of Excepted temple as defined in Section 9 clause (5) of the Act, and we declare accordingly."

3. We have noted that the original founder had nominated Venkatarangaiah to be his successor. But the founder did not specify in his Will as to what was to happen after Venkatarangaiah.

4. It appears that Venkatarangaiah executed a Will on 9.9.1941. Under that Will, he vested the administration of the temple in a Board of Five Trustees and further provided that the vacancies in future were to be filled in by co-option by the remaining Trustees and the persons to be selected were to be residents of the locality in which the temple was situate. The said Venkatarangaiah died on 19.9.1943. After his death, five Trustees nominated by him came into the Manag

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