Judgment 1. The defendant in O.S.No.4997 of 1981, on the file of the 16 Assistant Judge, City Civil Court, Chennai, is the appellant herein. 2. The deceased plaintiff/first respondent filed the suit under Section 70 (1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, (hereinafter referred to as 'the Act', for the sake of brevity) to set aside the order passed by the appellant herein in A.P.No.64 of 1978, dated 29.04.1981, and to recognize the plaintiff as hereditary trustee of the Temple, called "Sri Angalaparameswarimman" situate at Royapuram, Madras. 3. The Trial Court, in and by its judgment dated 4.05.1985, decreed the suit. Challenging the same, the present Appeal was filed. 4. The case of the plaintiff/first respondent, as seen from the plaint, is as follows:- i) The Temple, called "Sri Angalaparameswarimman", is situate at Royapuram, Madras. The origin of the said Institution has been lost in antiquity. The abovesaid Temple has been established for the sole benefit of the Viswakarma Community people, and, that is also evident from the Silasasanam, embedded in the wall of the Temple, which clearly indicates that the Institution was founded by the plaintiff's ancestors more than 100 years back. Eversince the inception of the Temple, the members of the Viswakarma Community have been managing it, as trustees. The plaintiff's ancestors were holding the post of hereditary trustee from time immemorial, or, atleast for the last 6 or 7 generations in a unbroken line of succession from father to son. ii) The plaintiff belonged to the Viswakarma Community, and, he is a descendent of the original founder of the Institution. The Temple was under the effective management of one Thandavaroya Achari and Chockalinga Achari, who were the direct ancestors of the plaintiff. After them, Subbaroya Achari succeeded to the office of Trusteeship. Thereafter, Ellappa Achari succeeded to the said post. Later on, the plaintiff's father, by name Munuswami Achari, became the trustee. During the period of his (plaintiff's father) Trusteeship, one Raju Naicker and two others filed C.S.No.143 of 1945, before this Court to frame a scheme under Section 92 of C.P.C. for proper and better management of the Temple in question and a scheme was framed on 26.03.1946. Later on, the plaintiff's father, by name Munuswami Achari, became the trustee. During the period of his (plaintiff's father) Trusteeship, one Raju Naicker and two others filed C.S.No.143 of 1945, before this Court to frame a scheme under Section 92 of C.P.C. for proper and better management of the Temple in question and a scheme was framed on 26.03.1946. iii) As per Clause 4 of the said Scheme, perpetual management of the Institution by the members of the Viswakarma Community was recognised and it was also stated that one trustee should be appointed from the members of the founder's family, permanently, which would also indicate that the plaintiff's ancestors founded the Temple and their descendants are entitled to represent the Institution permanently in the capacity of hereditary trustee. Therefore, the plaintiff has to be recognized as hereditary trustee, as per Section 6 (11) of the Act. iv) The plaintiff also stated that one S.C. Balasundara Achari was appointed as hereditary trustee, pursuant to the scheme passed by this Court and he was none other than the plaintiff's aunt's son. The plaintiff was appointed as trustee, recognizing that he was the member of the founder's family. Therefore, the plaintiff filed O.A.No.8 of 1977, under Section 63 (b) of the Act, before the Deputy Commissioner, for a declaration that he is holding the office of the said Temple as hereditary trustee. The said Application was dismissed, without giving any proper reason. Aggrieved by the dismissal of the said Application, the plaintiff filed A.P.No.64 of 1978, before the Commissioner, H.R. & C.E., viz., the appellant herein. The Commissioner also, without properly appreciating the contentions of the plaintiff, dismissed the Appeal. v) Hence, the present suit was filed under Order VII, Rule 1 of C.P.C., and under Section 70 (1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, to set aside the order passed in A.P.No.64 of 1978, and to recognize the plaintiff as hereditary trustee of the suit Temple. 5. The appellant/defendant filed a written statement, wherein, he has stated as follows:- i) The suit is not maintainable, as the plaintiff did not comply with the mandatory provision of Sections 78 and 80 of C.P.C., and therefore, the suit is liable to be dismissed. Even according to the plaintiff, the Institution was established for the sole benefit of the members of the Viswakarma Community. Even according to the plaintiff, the Institution was established for the sole benefit of the members of the Viswakarma Community. As such, the application in O.A.No.8 of 1977, filed under Section 63 (b) of the Act, is not maintainable. Moreover, the plaintiff did not prove that his predecessors were in management of the Temple. According to the plaintiff, the Temple is a denominational Temple, but, he has not established that he was appointed as hereditary trustee in that Temple. The plaintiff also failed to prove that the Trusteeship was hereditary in nature, and, having regard to the scheme framed by this Court, in C.S.No.143 of 1945, it cannot be stated that the Trusteeship is hereditary in nature. ii) Admittedly, the plaintiff was appointed as trustee, pursuant to the scheme and earlier to him, S.C. Balasundara Achari was appointed as trustee, as per the scheme. Therefore, the contention of the plaintiff that he has to be declared as hereditary trustee of the Temple, cannot be accepted. iii) As per clause 5 of the scheme decree, the tenure for holding the Office in the post of trustee is fixed for a period of five years and that would also prove that the trusteeship cannot be recognized as hereditary. Even assuming that the plaintiff is holding the Office hereditarily, he ought to have agitated the matter at the time of framing the scheme by this Court and when the plaintiff was appointed as trustee, on the basis of the scheme, he cannot claim that he has to be considered as hereditary trustee. Hence, the suit filed by the plaintiff is liable to be dismissed. 6. On the basis of the aforesaid pleadings, the Trial Court framed the following issues:- i. Whether the plaintiff is entitled to the relief prayed for in the suit. ii) Whether the suit is maintainable, having regard to the allegations made in Paragraph No.3 of the written statement and To what relief, the plaintiff is entitled to. 7. On the side of the plaintiff, the plaintiff was examined as P.W.1, and totally, six documents were marked. On behalf of the defendant, neither was any witness, examined, nor was any document, marked. 8. The Trial Court held that there is no need to issue notice under Section 80 of C.P.C., and answered Issue i) accordingly. 7. On the side of the plaintiff, the plaintiff was examined as P.W.1, and totally, six documents were marked. On behalf of the defendant, neither was any witness, examined, nor was any document, marked. 8. The Trial Court held that there is no need to issue notice under Section 80 of C.P.C., and answered Issue i) accordingly. The Trial Court relied upon the judgments reported in (1979) 1 MLJ 21 , in the case of (K.M. Raja Mohammad vs. Abdul Jabbar), (1967) 1 MLJ 40 in the case of (R. Venkataramani vs. The Madras H.R.&C.E. Board, rep. by its Commissioner), (1964) 1 MLJ 369, in the case of(The State of Madras rep. by Commissioner, H.R.&C.E., Madras Vs. Krishnaswami and another) and (1972) 1 MLJ 325 in the case of( Venkatarman vs. I.A. Thangappa) and held that the plaintiff can be declared as hereditary trustee, and there is no impediment for the same. Merely because, in the scheme, it was not stated that the trustees are not hereditary trustees, it cannot be contended that the plaintiff cannot claim the declaratory relief of hereditary trustee and decreed the suit. Aggrieved by the same, the present Appeal was filed. 9. It is submitted by the learned Special Government Pleader appearing for the appellant that the Trial Court, without properly appreciating Ex.A.4, the scheme decree passed by this Court, erred in holding that deceased the first respondent/plaintiff can be declared as hereditary trustee. The learned Special Government Pleader also submitted that the judgments relied upon by the Trial Court, cannot be applied to the facts of this case. Even according to the first respondent/plaintiff, he was appointed as trustee, pursuant to the scheme framed by this Court, and hence, he cannot claim the status of hereditary trustee. Moreover, no proof was adduced by the first respondent/plaintiff to show that the succession to the Office was regulated by the usage, or, was provided by the founder and it also devolves by hereditary right. The learned Special Government Pleader further submitted that a reading of Ex.A4, scheme decree passed by this Court would make it clear that nobody can claim the status of hereditary trustee for the Temple and without appreciating the same, the Trial Court erroneously held that the plaintiff was entitled to the relief of declaration. 10. The learned Special Government Pleader further submitted that a reading of Ex.A4, scheme decree passed by this Court would make it clear that nobody can claim the status of hereditary trustee for the Temple and without appreciating the same, the Trial Court erroneously held that the plaintiff was entitled to the relief of declaration. 10. On the other hand, the learned counsel appearing for the third respondent has submitted that this Appeal has become infructuous, having regard to the order passed by the Deputy Commissioner of H.R.&C.E., in M.P.No.17 of 1991, wherein, the Deputy Commissioner has recognized Sampath Kumar, viz., the third respondent herein as the hereditary trustee of the Temple, and therefore, the Appeal is liable to be dismissed as infructuous. The learned counsel further submitted that the first respondent, M.Chandrasekara Achari, died, during the pendency of the Appeal and the second respondent was impleaded as the legal representative of the deceased first respondent, and the third respondent was impleaded as party respondent, by order made in CMP.Nos.3077 to 3080 of 2007, dated 30.06.2010. 11. The learned counsel for the third respondent also submitted that having regard to the order passed in M.P.No.17 of 1991, the deceased first respondent was declared to be the hereditary trustee of the Temple. After his death, Sampath Kumar was holding the Office as hereditary trustee, and hence, the Appeal is liable to be dismissed, as having become infructuous. The learned counsel also submitted that the Trial Court correctly appreciated the judgments cited before it, and held that the deceased first respondent was holding the office as hereditary trustee, and therefore, there is no need to interfere with the well considered judgment and decree of the Trial Court. 12. The learned counsel also submitted that the Trial Court correctly appreciated the judgments cited before it, and held that the deceased first respondent was holding the office as hereditary trustee, and therefore, there is no need to interfere with the well considered judgment and decree of the Trial Court. 12. The learned Special Government Pleader for the appellant has submitted that the order passed in M.P.No.17 of 1991, cannot be put against the appellant and it is seen from that order that, without knowing that Appeal, viz., A.S.No.346 of 1990, was filed before this Court against the judgment and decree passed in O.S.No.4997 of 1981, it was represented that the judgment and decree passed in O.S.No.4997 of 1981 has become final and the deceased first respondent was recognized as hereditary trustee and on that basis, the second petitioner/Sampath Kumar in M.P.No.17 of 1991, viz., the third respondent herein was appointed as hereditary trustee, and therefore, it cannot be stated that the order was passed recognizing the said Sampath Kumar, as hereditary trustee. In other words, the learned Special Government Pleader submitted that the order made in M.P.No.17 of 1991, is not legally valid, as the judgment and decree made in O.S.No.4997 of 1981 is challenged in this Appeal, and therefore, the order passed in M.P.No.17 of 1991, cannot be taken advantage by the third respondent. 13. On the basis of the above submissions, the Point that arises for consideration in this Appeal is as follows:- "Whether the respondents can claim the status of hereditary trustee for the Institution?" 14. According to me, as rightly submitted by the learned Special Government Pleader for the appellant, the Trial Court, without properly appreciating the scheme decree passed in C.S.No.143 of 1945, erred in holding that the deceased first respondent was entitled to the relief of declaration that he was the hereditary trustee of the Temple. Ex.A.2, is the photocopy of the Sillasasanam, that is embeded in the wall of the Temple, and, it is seen from the said exhibit that one Thandavaroya Achari and Chockalinga Achari, sons of Subbaroya Achari, conducted the Kumbabishegam of the said Temple and they have endowed certain properties for performing some charity and the charity work shall be performed by them, their descendants and also the descendants of the Sisters viz., Angammal and Ekathammal. 15. 15. As per Section 6 (11) of the Act, the terms "hereditary trustee" means the trustee of a Religious Institution, the succession to whose office devolves by hereditary right, or, it is regulated by usage, or, specifically provided for, by the founder, so long as such scheme of succession is in force. In this case, except, stating that the deceased first respondent was the descendant of the original founder, no proof was filed by him to show that office devolved on him through succession, or, by hereditary right. Per contra, the first respondent/plaintiff has admitted in the plaint that as per the scheme framed by this Court, in C.S.No.143 of 1945, S.C. Balasundara Achari was appointed as hereditary trustee and he hailed from the founder's family and he was the plaintiff's aunt's son. The claim of the deceased first respondent was that he belonged to the Viswakarma Community, and was the descendant of the original founder and he also narrated the names of the persons, who were holding the Office as trustees, but, the deceased first respondent failed to prove the hereditary right by proving genealogy. 16. Further, when the first respondent's father, by name, Munusamy was holding the office as trustee, C.S.No.143 of 1945 was filed to frame scheme and the scheme was framed by this Court on 26.03.1946, and a reading of the same would make it clear that no one can claim the office of trusteeship as hereditary right. Ex.A4, is the scheme decree framed by this Court and its clauses are as follows:- "Scheme:- 1. This scheme shall come into force on and from the date of the decree in the suit. 2. The management of the affairs of Sri Angala Parameswari Temple, situated in Adam Sahib Street, Royapuram, Madras, and all the properties moveable and immovable belonging thereto shall vest in a Board of Trustee appointed hereunder. 3. The Board of Trustees shall consist of five members of whom one shall be from the family of the founder and not less than one from the Viswakarma Community. 4. (a) Only Hindus, who are residents of Madras and who hold and possess immovable properties in their own name paying at least Rs.25/- for half-year as and for property tax to the corporation of Madras are eligible for appointment as members of the Board of Trustees. 4. (a) Only Hindus, who are residents of Madras and who hold and possess immovable properties in their own name paying at least Rs.25/- for half-year as and for property tax to the corporation of Madras are eligible for appointment as members of the Board of Trustees. Provided that the Court may not insist on this qualification in the case of a member from the family of the founder if he is otherwise a fit and proper person; 4. (b) No female minor undischarged bankrupt lunatic, idiot, persons suffering from incurable diseases, and no person convicted of an offence involving moral turpitude shall be eligible to become a member of the Board of Trustees. 5. Each member of the Board shall hold office for a period of five years from the date of his appointment unless he in the meantime voluntarily resigns or is adjudged bankrupt or becomes insane or remains out of Madras for a continuous period of more than six months or becomes otherwise disqualified. 6. Whenever any vacancy arises in the Board of Trustees, such vacancy shall be filled up on an application made to this court by any member of the Board of Trustees or a worshipper of the suit temple. An outgoing trustee will be eligible for re-appointment. " 17. It is seen from clause 2 that the management of the Temple vest with the Board of Trustees appointed therein. Clause 3 speaks about the number of persons constituting the Board and it says that out of five members, one member should be from the family of the founder and not less that one member should be from the Viswakarma Community. In addition to a person from the family of the founder, any other person from the Viswakarma Community can be appointed and three other members can be appointed from any other community. Clause 4 (a) and (b) makes it clear that no female or any other person, stated thereunder, shall be eligible to become the member of the Board of Trustees. Clause 5 speaks about the tenure of holding the office and it clearly states that each member shall hold the Office for a period of five years. Clause 6 speaks about the mode of filling up the vacancies. Clause 5 speaks about the tenure of holding the office and it clearly states that each member shall hold the Office for a period of five years. Clause 6 speaks about the mode of filling up the vacancies. Clauses 3, 4 and 5 of the scheme decree are against the concept of hereditary trustee and when a person claims that he is the hereditary trustee, he is entitled to hold the Post permanently, or, he can transfer the Post to any other person, who is entitled to hold the Office as hereditary trustee and no terms or conditions shall be fixed for the post of hereditary trustee. 18. Further, as per the scheme, the trustees are appointed, subject to certain conditions exclusively stated in clauses 3 and 4. If the Office is held to be hereditary, the female member can become the hereditary trustee and according to the clause 4 (b), no female member can be appointed as member of the Board of Trustees. Therefore, the clauses 3 to 6, as stated above, would prove that the office was not held to be hereditary one and hence, the deceased first respondent cannot claim that he is entitled to be recognized as hereditary trustee. 19. No doubt, the Trial Court did not consider the various clauses in Ex.A4-scheme decree and without considering the factual aspects of the case, the Trial Court has merely referred to the judgments cited before it and relying upon the same, it has came to the conclusion that the deceased first respondent was entitled to be declared as hereditary trustee 20. According to me, the case has to be decided only on the basis of the pleadings and evidence, and without reference to the pleadings and evidence, the case cannot be decided on the basis of some decisions cited before the Court, without stating how the facts of those cases can be applied to the facts of the case, which is to be decided by the Court. Therefore, the finding of the Trial Court that the plaintiff/first respondent was entitled to the declaration, which was rendered by simply relying upon the judgments cited before it, is not correct, because, according to me, the decisions relied upon by the Trial Court cannot be applied to the facts of this case. 21. Therefore, the finding of the Trial Court that the plaintiff/first respondent was entitled to the declaration, which was rendered by simply relying upon the judgments cited before it, is not correct, because, according to me, the decisions relied upon by the Trial Court cannot be applied to the facts of this case. 21. As rightly pointed out the learned Special Government Pleader for the appellant no importance can be given to the order passed in M.P.No.17 of 1991. A perusal of the order made in M.P.No.17 of 1991, makes it clear that the order was passed on the premise that the judgment and decree made in O.S.No.4997 of 1981, which is under challenge in this Appeal, has become final, and on that basis, in the place of the deceased first respondent, Sampath Kumar was recognized as hereditary trustee. Once, it is held that the deceased first respondent is not entitled to get the declaration, the order passed in M.P.No.17 of 1991, will not stand in the away of setting aside the judgment made in O.S.No.4997 of 1981 and I hold that the order passed in M.P.No.17 of 1991, in favour of the third respondent cannot be taken advantage by him (third respondent) to claim the status that he is the hereditary trustee of the Institution. 22. Hence, the Point for consideration in this Appeal in answered in favour of the appellant and I hold that without considering Ex.A4, the contention of the respondents that they are entitled to hold the Office as hereditary trustees, and therefore, the order passed by the appellant is liable to be dismissed, cannot be accepted and the respondents cannot be declared as hereditary trustees, as they were holding the Office of trusteeship only by virtue of the scheme decree passed by this Court in C.S.No.143 of 1945. 23. In the result, the judgment and decree of the Trial Court are set aside and the Appeal is allowed. No costs.