The appointment of non-hereditary trustees is valid under the Hindu Religious and Charitable Endowments Act when there is evidence of mismanagement by hereditary trustees, and full legal procedures are followed.

JUDGMENT

K. V. Jayakumar, J.

This Writ Petition is filed under Article 226 of the Constitution of India.

2. The petitioner, Sri. P.K. Satheesan, is the hereditary trustee of Malamakkavu Ayyappa Kshethram, a private temple under the Padinjarapattu Tharavadu, Palakkad. The petitioner states that the said temple is not notified under the Madras Hindu Religious and Charitable Endowment Act, 1951 (for the sake of brevity, ‘the Act’).

3. The petitioner states that Malamakkavu Ayyappa Kshethram is a very ancient temple and local people worship in the said temple with permission of the members Padinjarapattu Tharavadu. The temple administration is being conducted by the hereditary trustees without any hindrance. According to the petitioner, no member of the public have any grievance with regard to the administration of the temple.

4. While so, the members of Padinjarapattu Tharavadu decided to create a Trust for further smooth administration of the temple. Accordingly, a Trust namely Padinjarapattu Malamakkavu Temple Trust was created and registered as Trust Deed No.239/2008 in SRO Trithala. Now the temple is running by the Trust, of which, the petitioner is the Managing Trustee. 5. The petitioner asserted that there is no allegation of any maladministration or misappropriation of funds by the hereditary trustee so far. Accounts and inventory of movable articles are kept properly.

6. The petitioner states that, in the year 2006, an Area Committee constituted under Section 41 of the Act filed a report. On the basis of the said report, the Malabar Devaswom Board has attempted to nominate a new Board of Trustees, alleging that the temple affairs are not being properly managed.

7. Aggrieved by the actions of the Board, the hereditary trustee approached this Court, which directed the Commissioner to consider the issue in the light of the principles laid down in Raman Namboothiri v. Chief Commissioner , 2001 KLT 495

8. The petitioner further states that vide Ext.P1 order, the 3^rd respondent Commissioner, MDB has directed the Area Committee to appoint non-hereditary trustees and an Executive Officer for the administration of the temple and to take over the management of the temple.

9. Being aggrieved by Ext.P1 order, the hereditary trustee approached this Court and filed WP(C) No. 14303/2008. The main challenge in the aforesaid Writ Petition was that the order was passed without issuing notice to the hereditary trustee under Section 39 (2) of the Act. This Court has granted a stay and allowed the hereditary trustee to continue management of the affairs of the temple till the disposal of the Writ Petition.

10. However, this Court as per Ext.P2 judgment dated 01.10.2009 has directed the petitioner to approach the appropriate civil court seeking proper remedies, without going into the merits of the case.

11. Pursuant to Ext.P2 judgment, the petitioner filed a suit before the Subordinate Court, Ottappalam as O.S.No.360/2009 inter alia challenging the appointment of non-hereditary trustee and the Executive Officer. The said claim was resisted by the contesting respondent, stating that the suit is not maintainable and that an application under Section 39 (4) is to be appropriately instituted.

12. The Sub Court, Ottappalam has considered the issue of maintainability as a preliminary issue and found that only an application would lie and not a suit.

13. The petitioner challenged the findings of the Sub Court, Ottappalam in RF