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2010 Supreme(Kar) 1047
2011(3) KCCR 2435
High Court of Karnataka
THE HONOURABLE MR. JUSTICE V.G. SABHAHIT & THE HONOURABLE MRS.
JUSTICE B.V. NAGARATHNA
Subash Chandra Naik & Others
Versus
The State of Karnataka, Rep by its Secretary, Department of Hindu Religious Endowments & Others
Writ Appeal Nos.2818-2819 C/w 2761-2762 of 2010, Writ Appeal No.3113 of 2010 (GM- R/C.)
Decided on : 29-11-2010
For the Petitioners: K. Shashi Kiran Shetty, M/s. Shetty & Hegde Associates,
Advocates.
For the Respondents: Srivatsa, R. Rajagopalan, K.B. Bhandari, Jai Kumar. S. Patil, S.R.
Raviprakash, K. Krishna, AGA, M/s. Subharao & Company, Advocates.
Headnote:CODE OF CIVIL PROCEDURE, 1908 - Section 9: [V.G. Sabhahit & Mrs. B.V.Nagarathna,JJ] Jurisdiction of Civil Court - Dispute as to succession and hereditary trusteeship of a temple - Held, The powers of Commissioner under Section 3 of Act is powers of Superintendence and control for purpose of carrying out provisions of Act which includes power to pass any order which may be necessary to ensure that institutions are properly administered and their income is duly appropriated for purpose they were found or exist. Section 68 speaks about bar of jurisdiction vis-à-vis Civil Court. However, said section has a saving clause and it says that no Civil Court shall have jurisdiction to decide a dispute in question which is, by or under this Act, requires to be decided or dealt by an officer or Authority under Act, unless it is expressly provided. Thus, Civil Court would have jurisdiction to deal with an issue connected with a matter which would not come within scope of Act. In other words, though office of hereditary trustee is recognized under Act, question as to who should succeed to such an office is a question which would not come within scope of general superintendence and control for purpose of carrying out provisions of Act which powers can be exercised by Commissioner subject to general or special orders of State Government. In orders passed by Commissioner what has to be ensured is that institutions are properly administered. In instant case dispute pertains to question of who should be successor as a hereditary trustee said dispute would squarely fall within realm of jurisdiction of Civil Court and is not one which can be decided by Commissioner.
CONSTITUTION OF INDIA - Article 226 & 227: [V.G. Sabhahit & B.V. Nagarathna, JJ] Jurisdiction - Dispute regarding hereditary trusteeship - Appeal against Order passed by the Single Judge directing the parties to the Civil Court for adjudication of the dispute as to who has to succeed to the 4th Respondent as the hereditary trustee - Held, A perusal of the provisions of the Hindu Religious Institutions & Charitable Endowment Act, 1997 (Karnataka Act) which is under consideration also does not give any indication that it is within the powers of Commissioner to decide the question of hereditary trusteeship. In fact, the definition of hereditary trustee in Section 2(15) of the Act clearly indicates that the rule of succession is required to be laid down by the founder or according to the usage or custom applicable to the institution or endowment or according to the law of succession for the time being in force. - Though the office of hereditary trustee is recognized under the Act, the question which would not come within the scope of general superintendence and control for the purpose of carrying out the provisions of the Act which powers can be exercised by the Commissioner subject to general or special orders of the State Government. In the orders passed orders of the State Government. In the orders passed by the commissioner what has to be ensured is that Institutions are properly administered. On and understanding of the present dispute regarding the question of who should be the successor as a hereditary trustee in the instant case, the said dispute would squarely fall within the realm of the jurisdiction of the Civil Court and is not one which can be decided by the Commissioner, particularly having regard to the fact that in the instant case the earlier suit decreed between the parties and the award made thereunder would have to be taken into consideration in order to determine the question.
KARNATAKA HINDU RELIGIOUS INSTITUTIONS & CHARITABLE ENDOWMENTS ACT, 1997 - Sections 2(15) & 3: [V.G.Sabhahit & Mrs.B.V.Nagarathna,JJ] Hereditary office holder - Dispute as to succession to trusteeship - Trustee who succeeded as trustee relinquished his office and appointed respondent in his place who was eldest member of family - Said appointment was disputed by petitioners i.e., other members of family in view of partition taken place in family - However, question as to who should be appointed has to be decide by Civil Court - Held, Directing respondent to continue office in order to fill vacuum till matter is decided by Court is justified.
KARNATAKA HINDU RELIGIOUS INSTITUTIONS & CHARITABLE ENDOWMENTS ACT, 1997 - Sections 68 & 3: [V.G. Sabhahit & Mrs. B.V.Nagarathna,JJ] Jurisdiction of Civil Court - Dispute as to succession and hereditary trusteeship of a temple - Held, The powers of Commissioner under Section 3 of Act is powers of Superintendence and control for purpose of carrying out provisions of Act which includes power to pass any order which may be necessary to ensure that institutions are properly administered and their income is duly appropriated for purpose they were found or exist. Section 68 speaks about bar of jurisdiction vis-à-vis Civil Court. However, said section has a saving clause and it says that no Civil Court shall have jurisdiction to decide a dispute in question which is, by or under this Act, requires to be decided or dealt by an officer or Authority under Act, unless it is expressly provided. Thus, Civil Court would have jurisdiction to deal with an issue connected with a matter which would not come within scope of Act. In other words, though office of hereditary trustee is recognized under Act, question as to who should succeed to such an office is a question which would not come within scope of general superintendence and control for purpose of carrying out provisions of Act which powers can be exercised by Commissioner subject to general or special orders of State Government. In orders passed by Commissioner what has to be ensured is that institutions are properly administered. In instant case dispute pertains to question of who should be successor as a hereditary trustee said dispute would squarely fall within realm of jurisdiction of Civil Court and is not one which can be decided by Commissioner.
1. Writ Appeal Nos.2818-2819/2010 is filed against the order dated 11.06.2010 passed by the learned Single Judge in W.P. No.7167-7168/2009. Writ Appeal Nos.2761-62/2010 is also filed against the aforesaid order. While the first of the aforesaid cases is filed by the first petitioner in the aforementioned writ petitions and the second of the writ appeals are filed by the second petitioner in the aforesaid writ petitions, Writ petitions, Writ Appeal Nos.3113/2010 and 3125/2010 is filed by the third respondent in the respondent in the aforementioned writ petitions. Since these writ appeals arise out of the common order passed in the writ petitions, they have been heard together and disposed of by this common order.
2. For the sake of convenience, the parties shall be referred to in terms of their status before the learned single Judge.
3. A temple by name of Polali Rajarajeshwari Temple which is claimed to be one of the oldest temple in the District of Dakshina Kannada and classified as ‘A’ Grade Temple has four Hereditary-Trustees hailing from different families. Two of them are from Bunt Families, known as Ullipady Gutty and Ammumje Guttu. The other two Hereditary Trustees are said to be belonging to the family of Archakas and the family of Thantri respectively. The four Hereditary Trustees have to elect the Managing Trustee from amongst them. According to the petitioners for the last several decades, the Managing Trusteeship used to be held from among Ullipady Guttu and Ammunje Guttu families. In the year 1942, one Sri. Ramanath Marla succeeded to the post of Hereditary Trustee of the Temple from Ullipady Guttu family when he was part of the Ullupady Joint Family and was residing at Malai Village and succeeded to the Hereditary Trusteeship under the Aliya Santhana Law. That the third respondent and his mother had filed O.S.No.31/1950, before the subordinate Civil Judge, Mangalore and by judgment and decree dated 31.3.1953, the third respondent and his mother and others had taken their share and separated from Ullipady Guttu Family as also on the basis of award also passed in the said litigation viz., RIA.No.1165/1952. According to the petitioners, apart from determining the shares in the respective properties owned by the Ullipady Guttu Family, one of the issues involved was with regard to the Hereditary Trusteeship, apart from certain customary obligations and liabilities which were to be performed by the person who inherited, the Hereditary Trusteeship, in the form of ‘Viniyoga’ and also performing obligations at Polali Temple and also at Ullipady Guttu House which includes the performance of Daivadakola periodically. According to the petitioners, after the demise of Sri. Ramnath Marla, Akkamma’s successors were allotted the Trusteeship of the temple and in view of the decree of partition her successor was Sri. Ramesh Naik-4th respondent who because the hereditary trustee. It is the case of the petitioners that on the death of Ramanath Marla, Sri. Ramesh Naik who succeeded to the Hereditary Trusteeship could not have transferred the trusteeship to a non-member of Joint Family without the consent and concurrent of the family members i.e., descendents of Akkamma Naik who are as follows: (a) Sri. Ramesh Naik, (b) Sri. Subash Chandra Naik, (c) Sri. Jayaram Alva, (d) Sri. Arunkumar Alva, (e) Sri. Suresh Naik (f) Sri. Uday Kumar Alva and (g) Sri. Kiran Kumar Alva.
4. According to the petitioners, a representation was made by Sri. Ramesh Naik to transfer the trusteeship in favour of Sri. Taranath Alva and when the same came to the knowledge of Sri. Uday Kumar Alva, he made a representation to the Deputy Commissioner on 12.10.2008 and made another representation on 10.03.2009. The other members also made representations. In the meanwhile an enquiry was conducted by the jurisdictional Inspector of the Department of Hindu Religion Endowments and he submitted his report on 15.01.2009. According to the petitioners, the Comm
