Ganapati Narayana Sabhahit v. Charity Commissioner
2005-08-08
A.M.FAROOQ, ASHOK B.HINCHIGERI
body2005
DigiLaw.ai
JUDGMENT A.M. Farooq, J. 1. This is an appeal filed under Section 72(4) of the Bombay Public Trust Act and it is directed against an order dated 24.9.2001 in Misc. No. 26 of 1998 on the file of the learned District Judge, U.K. Karwar. During the pendency of this appeal the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 (Karnataka Act 33 of 2001), hereinafter referred to as 'the Act' has come into force. The Appellants are the Petitioners who filed the Trust Misc. Case before the District Court under Section 47(1) of the Bombay Public Trust Act, hereinafter referred to as the Act. The first Appellant died during the pendency of this appeal. The second Appellant is the son and the only son of the first Appellant. 2. In the application it is stated that Sree Vinayak Dev Temple, Idagunji, is a public trust and a temple registered under the provisions of the Act. That the temple is an ancient one having large number of devotees. That since centuries the family of Sabhahits settled at Agrahar has been managing the temple. That it is the right and privilege of the members of the Sabhahit family of Agrahar in Haldipur village to officiate and to be the Managing Trustees of the temple. That there has been uninterrupted line of Managing Trustees from the Sabhahit family since time immemorial. That the late applicant No. 1 was appointed in the place of the late Sri Vishnu Ganapathi Sabhahit of Agrahar who is also the member of the Sabhahit family. As per the proceedings in Misc. No. 46 of 1956 and since 31.3.1960 the date of the order made by the Court the late applicant has been discharging his duties as the Managing Trustee. It is stated that the late first applicant has become old and wishes to relieve himself from the post of Managing Trustee and he desires the applicant No. 2 who is an eligible member of the Sabhahit family who has been assisting him in the activities of the temple trust be appointed as the Managing Trustee in his place.
It is stated that the late first applicant has become old and wishes to relieve himself from the post of Managing Trustee and he desires the applicant No. 2 who is an eligible member of the Sabhahit family who has been assisting him in the activities of the temple trust be appointed as the Managing Trustee in his place. That the applicant No. 2 is a Medical Practitioner, an agriculturist and a social worker and he can discharge his duties as a Managing Trustee on behalf of the Sabhahit Family that the interest of the second applicant are in no way conflicting with the interest of the temple and that he is a competent person to take up and efficiently discharge the functions of the Managing Trustee. That the other members of the Sabhahit family of Agrahara had endorsed his appointment as Managing Trustee on 20.5.1997 and for that there is a resolution dated 2.9.1997 and hence the prayer to appoint the second Appellant as Managing Trustee after relieving the late first Appellant from the post. 3. Objections were filed by the Respondents against the granting of the application. It was stated that two separate applications have to be filed for the prayers made in the application. They denied that the Sabhahit family had a right and privilege to be appointed as the Managing Trustee of the temple. It is stated that the temple is looked after by the devotees and trustees are appointed from among the public who belong to different families. That the trust is a public trust and not a family trust. That the late applicant even though is free to retire but before his relieving he should give proper accounts. That there is no need to appoint any other person or Appellant No. 2 as a trustee in the place of the first Appellant since the other trustees were equally competent to manage the affairs of the trust along with the first Petitioner. 4. It is further stated that the second Petitioner is not an eligible person to be appointed as a trustee of the temple since his personal interest is in conflict with the interest of the trust and the deity. It is stated that the second Petitioner is depending upon the earnings of the first Petitioner and he wanted to make the trusteeship of the temple as an instrument for his livelihood.
It is stated that the second Petitioner is depending upon the earnings of the first Petitioner and he wanted to make the trusteeship of the temple as an instrument for his livelihood. It was denied that the second Petitioner is a Medical Practitioner, agriculturist or social worker and further denied that he had earlier participated in the activities of the temple. It is also stated that the trustees of the temple never endorsed the appointment of the second Petitioner as a trustee. It was prayed that any other trustee could be appointed or a devotee from the public could be appointed in place of the first Petitioner. All the Respondents appear to have taken objections to the appointment of the second Appellant characterizing him as a characterless person. 5. The learned District Judge on the pleadings of the parties formulated relevant points for determination and held on Point No. 1 that the petition is maintainable in respect of point No. 1. He further held that the Appellants have not established that the minimum number of trustees is five and hence the Court has no jurisdiction to appoint a new trustee and on Point No. 3 he held that the late first Petitioner cannot be permitted to be discharged from the trusteeship and hence no finding is necessary on Point No. 4 and accordingly rejected the petition. 6. We have heard the learned Senior Counsel Sri B.V. Acharya who argued on behalf of the learned Counsel appearing for the Appellant and all the other Counsels appearing for the Respondent s. The Respondent Nos. 6 and 7 were represented by advocate Sri S.R. Hegde Hudlamane. After the matter was argued several times starting from 1.11.2004 he made a submission on 27.5.2005 to the effect that he wants to retire from appearing for Respondent No. 6 who, according to the learned Counsel, wanted to file an application for which he does not want to be a party. Respondent No. 6 who was before the Court submitted that he wants to appear personally. R-6 also wanted to file an application which was in Kannada and we directed him to file such an application before the office.
Respondent No. 6 who was before the Court submitted that he wants to appear personally. R-6 also wanted to file an application which was in Kannada and we directed him to file such an application before the office. On 3.6.2005 the application filed by Respondent No. 6 came before the Court and Respondent No. 6 himself was present and submitted that he wants transfer of this appeal to some other High Court which application was rejected by us as not maintainable. Later on he made a submission when the matter was being argued further on other dates that he has approached the Hon'ble Supreme Court and therefore this Court should stop hearing the matter further. His unreasonable request was rejected and the matter was heard. Thereafter he appears to have addressed letters to the Hon'ble Chief Justice and to us showing his distrust in any of the Judges of the Karnataka High Court in view of the alleged fact that the Appellants were from the Sabhahit family and one of the sitting Judges of the High Court also belongs to that family. There is absolutely no material indicating that any Judge's family is involved. This sort of attitudes on the part of the litigants should be condemned outright. When we found that his only intention was to protract the proceedings and prolong the matter we asked him also to argue the matter but he could not submit anything except saying that he has moved the Apex Court for transfer and he wants the matter adjourned. Since the matter is being argued since long we declined to adjourn the matter further. 7. It is contended on behalf of the Respondents that since the first Appellant is dead it is doubtful whether the cause of action survives and this Court cannot give a finding on the original cause of action after the death of the first Appellant in view of the repealing of the Act. That the present appeal cannot be said to be a continuation of the original application filed by the Appellants and the new provisions under the Karnataka Hindu Religious and Charitable Endowments Act, 1997 which came into force on 1.5.2004 cannot be invoked, that there are other petitions pending before the District Court and any order passed by this Court will affect those applications.
It was further submitted that the Lower Court did not go into the question of suitability of the second Appellant to be appointed in the place of the first Appellant and therefore the same cannot be considered in this appeal by this Court. That the public has no faith in the second Appellant. There is no proof regarding the custom or usage in appointing the trustees and holding Yajamanika by the Sabhahit family. It was further submitted that under Ex.P2 the first Appellant was appointed as an ordinary trustee by the District Judge and not as a Yajaman. Most of the arguments were addressed by the learned Counsels were on the suitability of the appointment of the second Appellant as a trustee. 8. Sri P.M. Jalisatgi, learned Advocate appearing for one of the Respondents also made similar submissions and further submitted that since under the Karnataka Act the Act has been repealed, hence the application his to be rejected as not maintainable. That they cannot fall upon Section 47 of the repeal Act. He has cited certain judgments on the point canvassed by him. 9. An application has been filed for impleading one Vishnu as an additional Respondent . The only ground on which he seeks impleading him as a party is that he has got interest in the temple trust and he is interested to become one of the trustees. We feel that this kind of applications are filed only to drag on the proceedings and to prevent the Court from passing any order. No ground is made out for such impleading. Application is, therefore, rejected. 10. After we had reserved the judgment we have received letters addressed to us personally by one of the Respondents which we have kept along with the record. Another letter appears to have been addressed to the Hon'ble Chief Justice stating that they have no confidence in the Court. It is pertinent to mention here itself that the present matter came through an application filed before the District Court at Karwar and at that time also one of the Judges of this Court belonged to that area. No order was sought from the District Court for transfer of the Court to some other Court out of the State or out of the District. The Respondents had at that time no objection for that Court deciding the matter.
No order was sought from the District Court for transfer of the Court to some other Court out of the State or out of the District. The Respondents had at that time no objection for that Court deciding the matter. The learned District Judge ultimately dismissed the petition and when the appeal has been filed before this Court and after the appeal was heard for several times and from the trend the questions were put by the Court to the parties, the 6th Respondent and others in order to see that this Court does not dispose of the matter started filing frivolous applications and petitions. Such attitude of the parties has to be condemned outright. 11. Now let us consider the matter. It is true that the Act has been repealed by the new Karnataka Act. Section 78 of the Karnataka Act provides that Section 6 of the General Clauses Act, 1899 shall be applicable in respect of the repeal of the enactments and Section 8 and Section 24 of the Act shall be applicable as if the said enactments are repealed and reenacted by this Act. Section 6 of the General Clauses Act reads as follows: 6. Effect of repeal.- When this Act or any Mysore Act or Karnataka Act made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.
As could be seen from the above section that the repeal of the Act shall not affect any right, privilege obligation or liability acquired, accrued or incurred under the earlier enactment and it shall not also affect any investigation, legal proceedings or remedy in respect of such right, privilege or obligation, liability etc. 12. Section 47 of the Act empowers any person interested in a public trust to apply to the Charity Commissioner for the appointment of a new trustee or for removal or discharge of a trustee etc. Under the said provisions of the Act the Appellants had a right to be discharged or appointed as trustee in accordance with the nature of the trust. Such right of the Appellants continues when they had already moved the Court under the said provision and during the pendency of the said proceedings the new Act has come into force and therefore in view of the General Clauses Act, the Appellants could continue the said proceedings and this Court could consider whether the impugned order passed by the Court under the repealed Act was in accordance with law. Therefore, we are of the view that the contention of the Respondents that in view of the repealing of the Act and the coming into force of the Karnataka Act, the proceeding is not maintainable cannot be upheld. 13. During the pendency of this appeal the first Appellant died. A memo has been filed to that effect. It is contended that the appeal cannot proceed. This is not an appeal like any other appeal where properties are involved. This is a matter relating to the appointment of a Managing Trustee to a temple. The Appellants have contended that the family members of the applicants are to be appointed as the Yajaman or Managing Trustee of the said temple. The second Appellant being the only son of the first Appellant and being a member of the Sabhahit family is already on record to continue the proceedings. He is entitled to continue the proceedings. 14. Thus we see no force in the contention of the Respondents that in view of the death of the first Appellant, the cause of action does not survive.
He is entitled to continue the proceedings. 14. Thus we see no force in the contention of the Respondents that in view of the death of the first Appellant, the cause of action does not survive. The first Appellant who had been the trustee since nearly 50 years had approached the Court seeking his discharge and in view of the age old customary practice to appoint a person from the Hegde, the second Appellant who is his son to be the next trustee in his place. The Court has got ample power under the Act to do so. The evidence on record clearly disclose that there appears to be no dispute that there were five trustees to the temple trust from the beginning and the finding given by the Court below that there is no proof for such is contrary to the evidence on record. 15. Ex.P1 is a certified copy of an extract from the registry of Trusts under the Bombay Public Trust Act. It is a public document kept in due course of business. There is an entry made in the said register dated 9.1.1975. The entry is in Kannada which is extracted as below: English translation: 4. Rules regarding trusteeship and Management inheritance regarding: Vishnu Ganapath Sabhahit of Haledeestara Agrahara is the Yajaman of this temple. This has been in practice since time immemorial by inheritance by Agrahara Sabhahit family and this arrangement is made by Temple Committee, Karwar. 5. Purposes of the Trust: Performing appropriate poojas and undertaking education regarding Religion, Spreading of study of Sanakrit, Veda and carrying out Religious Functions, marriages, Upanayana etc., of Hamake Samaja. It says that Sri. Vishnu Ganapath Sabhahit (father of late first Appellant) is the Yajaman of the Temple Trust and has been doing the Yajamanike-Management since time immemorial and that he was also proposed by the Temple Committee Karwar. Sri. Vishnu Ganapath Sabhahit stated above is the ancient member of the Sabhahit family and the name of Ganapat Narayan Sabhahit the deceased first Appellant is shown as the Managing Trustee. As stated earlier that this entry has come into existence in the year 1975. It has never been challenged by anybody till the present proceedings are filed.
Sri. Vishnu Ganapath Sabhahit stated above is the ancient member of the Sabhahit family and the name of Ganapat Narayan Sabhahit the deceased first Appellant is shown as the Managing Trustee. As stated earlier that this entry has come into existence in the year 1975. It has never been challenged by anybody till the present proceedings are filed. Under Section 21 of the Act the entries made in Register kept under Section 17 of the Act is final and conclusive when the said entries are not challenged or set aside in appeal. Even though it is now stated that after 25 years they have challenged the said order, that cannot be a ground to not to rely upon the entries made in the register. It was submitted on behalf of all the contesting Respondents that the findings given and the entries made in the year 1975 in Ex.P1 is not based on any material. This contention has to be rejected at the outright. When an entry is found in a register kept in the regular course of business and when it is a public document, the Respondent cannot be heard to say that the Court should not rely upon such entries. More so when no other material has been produced by the Respondents to disbelieve or reject the said entries. It was further contended that the above mentioned entry does not show that the first Appellant was the Managing Trustee. The record shows that the entry in the name of the Appellant was made as Managing Trustee on an order dated 3.10.1960. When such is the entry and when there is absolutely no other material produced by the Respondents, the said entry ought to be relied upon and it has to be held that the first Appellant was the Managing Trustee of the Temple. Further the other record show that it was the family members of the Sabhahit family who were the Yajamans or the Managing Trustees of the temple and other trustees were ordinary trustees to assist the Managing Trustee. 16. Even though it is contended by the learned Counsel appearing for the Respondents that earlier to the appointment of Vishnu Ganapath Sabhahit in the year 1950-51, there is nothing to show that earlier to that the Sabhahit Family had continued with the Management of the temple.
16. Even though it is contended by the learned Counsel appearing for the Respondents that earlier to the appointment of Vishnu Ganapath Sabhahit in the year 1950-51, there is nothing to show that earlier to that the Sabhahit Family had continued with the Management of the temple. The evidence of PW-1 and the application filed by the deceased first Appellant coupled with entry in Ex.P1 clearly show that it is the Sabhahit Family which had been recognized to be appointed as the Managing Trustee of the temple. The Lower Court was clearly in error in not perusing the evidence on record and not relying upon Exs.P1 and P2. 17. Apart from that the Lower Court has not taken into consideration Ex.P.2 and the consequent order passed by the District Court, North Kanara, Karwar on 21.3.1966 under Section 47 of the Act. Ex.P.2 is the certified copy of the application dated 26.9.1956 filed by the late Sri. Vishnu Ganapath Sabhahit the father of the late first Appellant seeking his discharge from the trusteeship of the Iduganji Vinayaka Devaru Temple and to appoint the late first Appellant-Doctor Ganapat Narayan Sabhahit in his place. This application has been filed at an undisputed point of time and acted upon by the authorities including the District Court, Karwar. It is stated in Ex.P.2 that as per the usage the applicant has been looking after the Yajamanike for the last 10 years after the retirement of the previous trustee of his family. It is stated that as per the custom and usage it is the right and privilege of the members of the Sabhahit family of Agrahar in Haldipur to be the Yajman and as such a trustee of the temple. That it was stated that the applicant having become old he was physically incapable to act as Yajman and the late Appellant-Doctor Ganapathy Narayan Sabhahit be appointed as trustee in his place. It is also stated in the application that it is only the members of the Sabhahit family who can perform the functions of Yajmans. This application is similar to the application filed in this present case by the late first Appellant. 18. In pursuance of the above said application, an order has been passed by the learned District Judge, North Kanara, Karwar. This order is dated 31.3.1960. The certified copy of the said order is the continuation of Ex.P.2.
This application is similar to the application filed in this present case by the late first Appellant. 18. In pursuance of the above said application, an order has been passed by the learned District Judge, North Kanara, Karwar. This order is dated 31.3.1960. The certified copy of the said order is the continuation of Ex.P.2. From the said order it could be seen there are absolutely no objection from anybody from discharging Sri. Vishnuganapath Sabhahit who was the Trustee and member of the Sabhahit family as having become old aged and appointing the present first Appellant who is now no more to be the Trustee of Sri. Vinayak Devaru Temple at Iduganji. This document is also more than 40 years old. Nobody had ever challenged the said order appointing the late first Appellant who is the member of the Sabhahit family as the Trustee of the temple. 19. Considering all these facts and the statement made by the late Vishnu Ganapath Sabhahit to the effect that it is only the Sabhahit family who has been the Managing Trustee or Yajman of the said temple cannot be said to be unfounded. Later on, in the registers of the Endowment Commissioner entries have been made as found in Ex.P.1. Therefore, we have no hesitation to hold that it has been the age old custom of appoint a member of the Sabhahit's family of Agrahar in Haldipur to be the Yajaman and Trustee of the Iduganji Vinayak Temple. 20. The present application filed is similar to the application which was filed as per Ex.P.2 at an undisputed point of time in the year 1956 which was entertained by the District Court and orders was passed appointing a Successor to the Trustee who was looking after the Yajamanike of the temple and who belong to the same Sabhahit family. In the present application the late first Appellant who was appointed under orders as per Ex.P.2 by the District Court under Section 47 of the Act has made a statement that he want to be discharged from the post of Managing Trustee and in his place it was prayed that the second Appellant be appointed as he belong to the same Sabhahit family. The Trust Committee had passed a resolution allowing the relieving of the late first Appellant and recommending appointment of the second Appellant to that vacancy.
The Trust Committee had passed a resolution allowing the relieving of the late first Appellant and recommending appointment of the second Appellant to that vacancy. Respondents 1 to 3 in the applicant (sic application) consented for an order and stated that the appointment of the second Appellant Doctor Ganapathy Sabhahit would add strength to the Trust for its further development. 21. The contesting Respondent made several wild allegations against the second Appellant, describing him as a very mean person with all bad habits. From the evidence on record we find that the second Appellant is a Medical Practitioner and also an agriculturist and he is the only son of late first Appellant. He belongs to the Agrahar Sabhahit family. The second Appellant is a homeopathic medical practitioner having a diploma in homeopathy. Even though the temple is stated to be about 30 Kms from the house of the second Appellant he has got a car which is not disputed. In his evidence he has stated that he was doing Yajamanike of the temple since the last 4 to 5 years because of the ill health of the late first Appellant. That he was a member of the Zilla Parishad; that he was Honorary District Scout Commissioner; that he is the member of the Managing Committee of the Junior College, Haldipur run by Rural Education Society; that he is a treasurer of the Managing Committee of Dhanvantri Ayurvedic Hospital, Siddapur; that he is a Trustee of jagadguru Shankaracharya Samigalu Samsthan, Honnavar; that he was Vice-President of North Kanara District Co-operative Union, Kumta; that he was working as Director of KDCC Bank and also Havyak Finance Limited. He has stated that after he started looking after the temple activities due to the ill health of his father, he has made several improvements. We have considered the entire evidence and we do not find that the second Appellant cannot be said to be not a suitable person to be appointed as the Managing Trustee of the temple. 22. As stated earlier the contesting Respondents have made wild allegations against the second Appellant without producing any material to substantiate the same. One of them have produced a photograph showing the first Appellant in the company of a lady whom they allege is of a bad reputation.
22. As stated earlier the contesting Respondents have made wild allegations against the second Appellant without producing any material to substantiate the same. One of them have produced a photograph showing the first Appellant in the company of a lady whom they allege is of a bad reputation. We are unable to comprehend how from a photograph it could be said that the second Appellant was moving in the company of some woman of bad reputation. There is absolutely no material to hold that the woman seen there is of bad reputation. What we feel from the defaming allegations made by the contesting Respondents is that the allegations are deliberately made in a way to harm reputation of the second Appellant. The way the 6th Appellant behaved in this proceeding show that the only intention of the contesting Respondent is to see that the second Appellant should not be allowed to be appointed as a Trustee in the place of his late father. 23. Several judgments have been cited. Koodalmanickam in Devaswom Managing Committee Vs. Thachudaya Kaimal alias Manickan Keralan (Dead) by Lrs., JT (1996) 2 SC 336a was cited to contend that after the death of the first Appellant the entire appeal abates. That judgment has nothing to do with such a contention. There the High Court allowed the second appeal and held the Plaintiff was entitled to enjoy the usufructs during his tenure and on his death during the pendency of the proceeding, the Court had held that it abated. That is not the case in this appeal. Here the second Appellant was also a party to the application and the application was filed to get an order from the Charity Commissioner for discharge of the first Appellant and appointment of the second Appellant as a Trustee and the second Appellant is still alive. In similar circumstances and on similar applications the deceased Appellant was appointed under the Act at an undisputed point of time in the year 1960 and therefore there is absolutely no merit in the said contention. 24. 2003 (3) KCCR 2301 (Management of the Goodwill Girls High School v. Smt. J. Mary Susheela and Ors.) was cited to contend that this Court cannot expand the scope of the appeal and pass an order in respect of the appointment of the second Appellant as a trustee.
24. 2003 (3) KCCR 2301 (Management of the Goodwill Girls High School v. Smt. J. Mary Susheela and Ors.) was cited to contend that this Court cannot expand the scope of the appeal and pass an order in respect of the appointment of the second Appellant as a trustee. In this case evidence has been led and most of the facts are borne out by documents and there is no ground to say that this Court is expanding the scope of the appeal. 25. (2001) 2 SCC 294 (Rajasthan High Court Advocates' Association v. Union of India and Ors.) to contend that there was no cause of action. As held in the said case the cause of action has to be determined from the facts of each case. In this case the cause of action, has already arisen when the application has been filed by the Appellants and hence the said case is not applicable to the facts of this case. 26. (Primary Co-operative Land Development Bank Limited and Ors. v. State of Karnataka) 1987 Lab I.C. 126 is cited to contend that General Clauses Act applies. This has already been dealt with in the earlier paragraphs. 27. Kolhapur Canesugar Works Ltd. and Anr. Vs. Union of India and Ors., AIR 2000 SC 811 was also cited on the question of applicability of the General Clauses Act. We have already dealt with this in the earlier paragraphs. We have held that in view of the saving clause General Clauses Act is applicable. 28. Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, AIR 1958 SC 253 , was cited again for the purpose of contending that the appeal would abate on the death of the first Appellant. In the said case the Plaintiff who had come to Court to question his Ex-communication died and the Hon'ble Supreme Court held the cause of action was personal to the Plaintiff and the suit should abate. This is altogether a different matter where two applicants have filed the application and when the one has died the other still alive and he is continuing the proceedings. 29. Again the facts in (Josiam Tiruvengadachariar and Anr. v. Sawmi Iyengar alias Venkatachariar and Ors.) Indian Law Reports Volume 34 page 76 is altogether on a quite different aspect which is not applicable to the facts of this case. 30.
29. Again the facts in (Josiam Tiruvengadachariar and Anr. v. Sawmi Iyengar alias Venkatachariar and Ors.) Indian Law Reports Volume 34 page 76 is altogether on a quite different aspect which is not applicable to the facts of this case. 30. A copy of an order passed in W.P. No. 608 of 2004 (GM-CPC) (Nandavara Kamalakantha Mallya v. Pangal Rabindra Upendra Nayak and Ors.) disposed of on 23.9.2004 was cited to contend that in view of the repealing of the Act and coming into force of the Karnataka Act, no order need be passed in this appeal and the parties may be directed to approach the Charity Commissioner. We have already held that when on the date when the application was filed it was maintainable, then the subsequent repealing of the Act will be subject to the repealing provisions, which we have already held in favour of the Appellant. Similarly copy of the order passed in W.A. Nos. 489 and 429 of 1998 (The State of Karnataka and Ors. v. Sri. Sringeri Nelamau Samsthanam and Ors.) dated 30.7.2003 by this Court is relied upon to contend that in view of the repeal of the Act the proceedings also gets terminated. 31. (Subbaraya Narayana Bhat v. Govind Ganapathi and Anr.) 1983 (2) KLJ 521 was cited to contend that the District Judge will have no jurisdiction to appoint a new trustee unless the existing number of trustees are less than the minimum required. We have already held on discussing the evidence that the evidence on record disclose that there were always five trustees to the trust which is found from the evidence and therefore the Court has got jurisdiction to appoint the second Appellant as a new trustee in place of the late 1st Appellant. Moreover the first Appellant is dead and the second Appellant who is from the Sabhahit family has to be appointed as the Managing Trustee in view of the age old custom as found in Exs.P1 and P2. For the same purpose 1984 (2) KLJ 293 was also cited. 32. Sri Vedagiri Lakshmi Narasimha Swami Temple Vs. Induru Pattabhirami Reddy, AIR 1967 SC 781 was cited to contend that no trustee can be discharged unless the renders accounts during his management irrespective of any question of negligence or wilful default.
For the same purpose 1984 (2) KLJ 293 was also cited. 32. Sri Vedagiri Lakshmi Narasimha Swami Temple Vs. Induru Pattabhirami Reddy, AIR 1967 SC 781 was cited to contend that no trustee can be discharged unless the renders accounts during his management irrespective of any question of negligence or wilful default. Except contending that the late first Appellant should not be discharged without rendering the accounts, there appears to be no allegation against him except the fact about the loss of some tenanted lands under the Land Reforms Act. Even otherwise the second Appellant has admitted that he was looking after the Management of the Temple for five years earlier to the filing of the application because the late first Appellant was not keeping well. When the second Appellant has admitted that, he could be called to file the accounts. When the first Appellant is dead, even the question of rendering the accounts also will not have any significance especially when there is no such specific allegation of embezzlement from any of the Respondent s. Moreover, the other trustees- Respondents 1 to 3 have welcomed the appointment of the II Appellant. 33. A decision in (M. Vasudev Rao and Anr. v. Subraya Parameshwar Hebbar and Ors.) 1967 (1) MLJ 225 is cited to contend that the second Appellant who resides about 30 K. Ms. away from the temple is not a person having interest in the temple. We have found on consideration of the evidence on record that it is the family of Agrahar Sabhahits who have been holding the Yajamanike of the temple from time immemorial and the Appellant is the only son of the earlier Yajaman or the Managing Trustee and he is a respected person holding several offices and a social worker and the evidence on record also further shows that he had been assisting his father the late first Appellant in managing the temple during the illness of the late first Appellant which all show that he is interested in the affairs of the temple. He is a devotee of the deity. He also owns a car and he stays only about 3 K Ms. away from the temple and considering all these facts it cannot be said that he has no interest in the affairs of the temple. 34.
He is a devotee of the deity. He also owns a car and he stays only about 3 K Ms. away from the temple and considering all these facts it cannot be said that he has no interest in the affairs of the temple. 34. In (P. Ganapathy v. Gopalakrishna and Ors.) 1982 (2) KLJ 155, it has been held that the High Court will not interfere in an order passed by the District Court under the Act under its writ jurisdiction. But this is not a writ petition under Article 226 but a regular appeal and this Court is duty bound to consider the appeal and decide the matter in accordance with law. 35. More judgments have been cited on the same questions which are not at all necessary to be considered. We have elaborately taken into consideration all the materials on record and the question of law involved in the matter and we have no hesitation to allow this appeal setting aside the impugned order passed by the Lower Court. The application filed by the Appellants is allowed and we direct the appointment of the second Appellant as a Trustee who shall be the Managing Trustee of Vinayaka Dev Temple, Idagunji subject to the changes that will take place in accordance with law and in accordance with the provisions of Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997.