Holding

Trustees nominated after the commencement of the 1951 Act are not hereditary trustees under the definition in the 1951 or 1959 Acts.

Summary

The case concerned the status of trustees of the Sri Kothandaramaswami temple after successive statutory reforms. The founder in 1915 appointed his brother‑in‑law as successor, who later created a board of five trustees by will in 1941. After the 1951 Tamil Nadu Hindu Religious and Charitable Endowments Act repealed the 1927 Act, the definition of "hereditary trustee" was narrowed, excluding persons nominated by existing trustees. The Supreme Court examined whether trustees appointed after the 1951 Act could be deemed hereditary trustees under the earlier 1927 definition or the later statutes. It held that while trustees appointed before the 1951 Act qualified as hereditary trustees under the 1927 Act, any trustees nominated thereafter are not hereditary trustees under the 1951 or 1959 Acts. Consequently, the appeal by D. Srinivasan challenging the High Court’s decision was dismissed.

Issues considered

The meaning of 'hereditary trustee' under the Tamil Nadu Hindu Religious Endowments Act, 1926 (1927 Act) versus the 1951 and 1959 Acts
Whether the repeal of the 1927 Act by the 1951 Act extinguished the rights of trustees nominated after 1951 to be called hereditary trustees
Effect of Section 103 of the 1951 Act on rights accrued under the repealed 1927 Act

Subjects

hereditary trusteestatutory repealdefinition of trusteeTamil Nadu Hindu Religious Endowmentstemple administrationsuccessionstatutory interpretation

Judgment

. D. SRINIVASAN A
v.
THE COMMISSIONER AND ORS.

FEBRUARY 17, 2000

(M. JAGANNADHA RAO AND A.P. MISRA, JJ.J
B

Hindu Law-T.N. Hindu Religious Endowments Act, 1926 (Act 2 of
1927r--Section 9{6)--Definition of ''hereditary trustee''--l'ersons nominated
under a Will as successor and was given absolute povn:r to administer the
temple during the commencement of Act 2 of 1927-Held, such successor c
would be a hereditary trustee-l'ersons nominated on the Board of Trustees
by such successor by way of a further Will would also be hereditary trnstee
during the subsistence of Act 2 of 1927-Later on, Act 1927 was repealed by
1951 Act which provided for a restrictive definition of 'hereditary trustee" taking
away the existing rights of such trustees-Held, such trustees who were them- D
selves not hereditary trustee after the coming into being of 1951 Act, nominated
persons on the Board of Trustees or their nominated persons co-opted as
trustees would not be regarded as "hereditary trustee~·"--T.N. Hindu Religious
Endowments Act, 1951, Sections 5, 6(9) and lOrT.N. Hindu Religious En-
dowments Act, 1959, Section 6( ur--Trusts.
E
Words and phrases-"Hereditary trustee"-Meaning of in the context of
Tamil Nadu Hindu Religious Endowments Act, 1959.

Statute-Repeal of-Held, rights vested in any pers01i or authority under
a repealed statute are not to be deemed to be interfered with by the repealing
F
statute which expressly or by necessary implication illterferes with the rights
_j accrued to any person or body under the repealed statute.

Original founder of a temple nominated onll! V to be his success11r
and a Will was executed in his favour in 1915, giving him absolute power
to administer the temple.V executed a Will in 1941 under which he vested G
the administrution of the temple in a Board of Five Trustees and further
provided that the vacancies in future were to be filled in by co-optioll by
the remaining Trustees and thl! persons to be selected were to be residents
of the locality in W!>hich the temple was situate. After the death of V in 1943,
five Trustees nominated by him came into the management to administer H
1031
1032 SUPREME COURT REPORTS (2000] 1 S.C.R.
A the temple. After the death or five Trustees nominated ,by V, others were ....:
co-opted as trustees.

An application was filed by the then trustees btfore the Deputy
Commissioner of Endowments, under Section 63(b) of the T.N. Hindu
B Religious Endovmients Act, 1959 (1959 Act) for a declaration that they\'l-ere
hereditary trustees. But this applicati11n \'l'US dismissed. An app~I was
filed Infore the Commissioner and the same also dismissed. In 1971 a suit
v;as filed by the said Trustees for a declaration that the order passed by
the Commissioner \'l"ilS illeual and for a further declaration thl!.t th~ ofilce
11f Trusteiship of the temp!e was hereditary. Trial court decnied the suit
C and declared the plalntilTs therein as "hereditary trustees". Appeal filed by
the Commissioner Vi'llS allowed by the High Court and the same confirmed
in LPA. He~ce this uppeal.

It was contended by the appellant that the temple was already
D declared an ''Excepted temple" under Section 9(5) of the T.N. Hindu
Religious Endowments Act, 1926 (1927 Act) in 1935 inasmuch succession
. to the trusteeship l>as as provided by the founder and that order was
binding in the present proceedings; and that the definition of "hereditary
trustees" in Section 9(6) of 1927 Act Vl'dS wider than the one contained In
E Section 6(11) of the T.N. Hindu Religious Endowments Act, 1959 (1959
Act) inasmuch as even a person nominated by the trustees for the time
being, came within the definition or "hereditary trustee" under Section 9(6)
of 1927 Act, though not under 1951 and 1959 Acts.

It was contended by the respondents that even if the definition or
F "hereditary trustee" under Section 9(6) of 1927 Act was wider and could
take in a person who was nominated by the trustees, still the appellant
could not take any benefit from the said provision as 1927 Act was repealed
by 1951 Act; :lmt the definition of "hereditary trustee" under Section 6(9)
of the 1951 Act was restrictive and did not apply to m1minated trustees,
G that similar was the position under Section 6(11) of the 1959 Act definins
"hereditary trustee" and hence th:: person filled into the past 1951 vacan·
cies in the Board of five Trustees would not be described as "hereditary
trustees"; and that Section 103 or the 1951 Act stated that actions, decisions
tn!ren under the provisions of 1927 Act in-so-far as they \'Vere inconsistent
H with the provisions of 1951 Act, would ccas2 to be operative.
D. SRINIVASAN v. THE COMMR. 1033

Dismissing the appeal, this Court A
HELD : 1.1. Section 9(6) of T.N. Hindu Religious Endowments Act,
1926 (1927 Act) defines "hereditary trustee", among other person who was
nominated by the trustees, for the time being in otnce, or otherwise
nominated by the founder. V was the person who was nominated by the
founder and, therefore, in that capacity he became the "hereditary trus· B
tt~es". During the time of V, the temple was "Excepted Temple" under
Section 9(5) of the 1927 Act, because succession was specifically provided
by the founder. [1041-C]

1.2. In 1943, when V died the statute that was in force was 1927 Act and
c
under sub-section (6) of Section 9 of this Act, persons nominated by the
trustees for the time being in force would also be "hereditary trustees• and
hence the said five persons nominated as trustees by V would be regarded as
"hereditary trustees" for the purposes of the Act of 1927. [1041-F]

1.3. However, after commencement of the T.N. Hindu Religious and D
Charitable Endowment Act, 1951 (1951 Act), the definition of "hereditary
trustee" contained in sub-section (9) of Section 6 of that Act did not
recognise a person who was nominated by other trustees, as "hereditary
trustees". Thus, so far as 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 V's nominees, would not be "hereditary E
trustees" under Section 6(9) of the 1951 Act. It is true that the Board of
Trustees created by V could be treated as a fluctuating body from time to
time and any rights vested in that body to nominate "hereditary trustees"
under sub-section (6) of Section 9of1927 Act, would remain unless taken
away by the 1951 Act. [1042-D-E] F

2.1. It is true that rights vested in any person or authority under a
repealed statute, unless there is any provision in the repealing statute
which expressly or by necessary implication interferes with the rights
accrued to any person or body under repealed statute of 1927. But the
language contained in clause (a) of Section 103 of the 1951 Act evinces a G
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 trustee". ln other words, if any trustees are nominated
subsequent to the commencement of the 1951 Act, by the Board of
hereditary trustees (who came into otnce pursuant to the will of V or their H
1034 SUPRFME COURT RHORTS [2COOJ l S C.R.
A nominees) then those persons would not be governed by the definition of
sub-section (6) of Section 9 of 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 trustees",
the 1951 Act has chosen to interfere with an existing right of the Board to
B nominate fresh trustees as "hereditary trustees". It must, therefore, be held
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 Act or by their nominees then such persons could not be called
"hereditary trustees' within the meaning of sub-section (6) of Section 9 of
the 1951 Act. Similarly, if the persons who were themselves not hereditary
C 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 T.N.
Hindu Religious and Charitable Endowments Act, 1959. [1043-A·E]

2.2. Thus, the two other plaintiffs in the suit and the present appel·
D lant, being persons who were nominated as trustees subsequent to the
commencement of the 1951 Act, cannot be described as "hereditary trus·
tees", for the purposes of 1951 Act or 1959 Act. [1043-F]

2.3. This does not, however, mean that the right conferred on the
E Board of Trustees, whenever a vacancy occurs in the five places created by
V, 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". What their rights are will necessarily have to be
F governed by the provisions of the statute. It is not necessary to go into the
question as to their rights. Suffice it to say that they are nut "hereditary
trustees". (1043-H; l044-A)

CIVIL APPFLLATE JURISDtCTION : Civil Appeal !'lo. 4199 of
G 1989.
Form the Judgment and Order dated 15.11.88 of the Madras High
Court in L.P.A. No.4 of 1983.

S. Padmanabhan, R. Sundara Varadan R. Ayam Perumal and R.
H Mohan fur the Appellant.
D. SRINIVASAN v. Tiff COMMR. 1035

V. Krishnamurthy, P.R. Kovilan and V. Ramasubramaniam for the A
Respondents.

The Judgment of the Court was delivered by

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 LP A B
before the High Court were Sri. Y.R. Natarajan & Sri D. Srinivasan. The
1st respondent in the LPA was the Commissioner, Hindu Religious En-
dowments, 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 wen: brought c
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 defen-
dant in the suit, against E. Venkatasubbaiah and D. Adiseshayya and Y.R.
Natarajan. Learned Single Judge allowed the appeal of the Commissioner D
and the respondents in the 1st appeal filed the LPA as mentioned above
and the same was dismissed as stated ear!it:r. rt is against the above said
judgment in the L.P .A. that this appeal has been preferred.

The following facts are necessary to be stated for disposal of this E
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 F
latter to administer the temple. It appears that the Inspector of Endow
ments 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 Administrating Trustee, Shri D. Yenkatarangaiah, who was G
the brother-in-law of the original founder, stated before the Board that no
accounts were being maintained, as the properties wc:rc "'private'" proper-
ties. Tht:reafter, an enquiry under Section 84 of the Madras Hindu
Religious Endowments Act, 1926 (Act 1 of 1927) (hert:inaftc::r called the
1927 Act) was initiated, to decide the nature of the temple. During the H
1036 SUPREME COURT REPORTS (2000) 1 S.C.R.
A 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
B 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
C 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
D defined in Section 9 clause (5) of the Act, and we declare accord-
ingly".

We have noted that the original founder had nominated Venkataran-
gaiah to be his successor. But the founder did not specify in his Will as to
what was to happen after Venkatarangaiah.''
E
It appears that Ven~atarangaiah executed a Will on 9.9.1914. Vnder
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
F 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 Management to administer the temple.
They were:

(1) D. Ponnaih, (2) D. Managarnma, (3) E. Ventakasubbiah, (4) Y.
G Ramachandrayya and (5) R. Namperumal Chetti.

After the death of Ponnaiah, one Ramaiah Reddy was co-opted in
1955. After the death of Mangammal, D. Adiseshayya was co-opted. After
the death of Y. Ramachandrayya, his son Y.R. Natarajan was co-opted.
H After the death of Namperumal Chetty, Padmanabha Chetty was co-
D. SRINIVASAN v. THE COMMR. 1037

opted. A

An application (O.A. 91/1966) was filed by the then trustees (whose
names are given below) before the Deputy Commissioner of Endowments,
Madras, under Section 63(b) of the Act 22 of 1959 for a declaration that
the petitioners therein were the hereditary Trustees. The said application
was dismissed. Against that order an appeal (A.S. No. 46/71) was filed
B
before Commissioner. The said appeal was dismissed, on 14.9.1971. There-
after, a statutory suit was filed in 1972 by the said trustees E. Venkatasub-
baiah, D. Adiseshayya and Y.R. Natarajan, for a declaration that the order
made by the Commissioner was illegal and for a further declaration that
the office of Trusteeship of the temple was 'hereditary' and that the plain- c
tiffs were hereditary trustees. This suit was contested by the Commissioner.
The City Civil Court, Madras by its judgment in O.S. 4810/1972 dated
25.8.1975, decreed the suit and held that the office was hereditary and that
the plaintiffs were 'hereditary trnstees'. Against the said judgment, an
appeal, bearing No. A.S. 379/1978 was filed in the High Court, which was D
allowed by a learned Single Judge of the High Court by Judgment dated
11th January, 1983 and the said judgment of the learned Single Judge was
confirmed in LPA No. 4/1983, dated 15.11.1988. The learned Single Judge
and the Division Bench came to the conclusion that the office was not
'hereditary' and that plaintiffs were not 'hereditary trnstees' within the mean-
ing of the definition of "hereditary fJu;"tee" contained in Section 6(1 l) of the E
1959 Act. The 1927 Act was repealed by the 1951 Ad and the lati.:r Act
was repealed by the 1959 Act.

In this appeal before us, the learned senior counsel for the appellant,
Sri R. Sundaravaran contended that the view taken by the learned Single p
Judge and Division Bench of the High Court was erroneous, that the order
dated 4.10.1935 (in O.A. 165/1935) had already declared this temple to be
an 'excepted temple' under the Madras Act Il/1927 inasmuch as Succession
to the trusteeship was as provided by the founder, (vide definition in
sub-clause (5) of Section 9 of the 1927 Act) and that order was binding in
the present proceedings. A further argument was also raised on the basis G
of the language in the definition of 'hereditary trnstee' contained in sub-
clause (6) of Section 9 of 1927 Act. lt was pointed out that the definition
of 'hereditary trnstee' in sub-clause (6) of Section 9 of the: 1927 Act was
wider than the one contained in sub-clause (11) of Section 6 of the 1959
Act inasmuch as even a person nominated by the trustees for the time H
1038 Sl'P){EME COURT REPORTS [2000] 1 S.C.R.
A being, came within the definition of 'hereditary tmstee' under sub-clause (6)
of Section 9 of 1927 Act, though not undt:r the 1951 and 1959 Acts.

On the othc:r hand, lt:arncd counsel for the n:spondents, Sri V.
Krishna Moorthi pointed out that, ev..;n if the definition of 'hereditwy
tmstee' in sub-clause (6) of Section 9 ,if 1927 Act was wider and could take
B in a person who was nominated by the trustees sti1l the appellants could
not take any benefit from the said provision inasmuch as the 1951 Act
repealed the 192'7 Act and the definition in 1951 Act was restrictive and
applied to all vacancies to the office aft..:r the 1951 Act. Counsel argm:d
that Section 103 l ,f the 1951 Act stated that actions, decisions taken under
C the provisions of tht: carlit:r Act (i.e. 1927 Act) in-so-far as they were
inconsistent with the provisions of tk 1951 Act, would cease to be opera-
tive. Counsd contended that the definition of 'heredita1y tmstee' in Section
6(9) of the Madras Act of 195 l was restrictive and did not apply to
nominated trusk-:s. Similar was the position undt:r Section 6( 11) of the
1959 Madras Act defining 'hereditary tm.1tee' and hence th~ persons filled
D into the past 19.' I vacancies in the Board of five trustees would not be
described as 'hen:ditwy tmstees'.

The point that arises for considerntion is whether the present appel-
lant trustee has been nominated by the trustees for the time being and
could be treated as 'heredita1y tntstee.1' and whether the three original
E plaintifts could a,'sn have h.:c:n tr~<tkd as 'hereditary tntstee.1' from tht: time
when O.A. 1\oo. !6\'1%6 was fikd by three penons in 1966 lwfur~ the
Deputy Commi,siun.cr?

For a proper appreciation of the above issue, it is necessary to resort
F to the definition of 'Excepted temple' in sub-clause (5) of Section 9 of 1927
Act and also t<' the definition of 'hereditary tmstee' in sub-clause (6) of
Section 9 of 1927 Act.

Sub·clausc (5) of Section 9 of 1927 Act reads as follows:

G 'Excepkd temple' means :

(a) d temple which before 1801 was, and since 1963 has con-
tinued to he, under the sole management of a trustee whose
nomina6on did not vest in, nor was exercised by, the Government
nor wa' subject to the confirmation of the Government or of any
H public ,,fficcr, or
D. SRINIY ASA."I v. THE COMMR. 1039

(b) a temple founded since J842, the right of succession to the A
office of trustee whereof is hereditary or specially provided for by
the founder".

Sub·dause (6) of Section 9 of 1927 Act reads as follows :

'"Hereditary trust et:' means the trustee of a religious cndow- B
ment, succt:ssion to whose office devolves by h;;;reditary right or
by nomination by the trustet: for the;; time bdng, or is otherwise
regulated by usage or is specially provided for by the founder, so
long as such scheme of succession is in force".

From the above said definition, it will be noticed that under sub- c
clause (6) of Section 9 of 1927 Act, th.: definition of 'hereditary tmstee'
included a person who was nominated by the trustees, for the time bt:ing
in office.

The 1951 Act did not recognise the pie<) of 'Excepted temple', which
D
was a particular class of temple, for which provision was made only under
the 1927 Act. In the 1951 Act, in Section 6(9) 'hereditary tmstee' has been
defined as follows :

"Section 6(9) : 'hereditary trustei:' means the trmtee of a
r;.;l.igiuu~ in:-\titut;un in suc:L:1..·\:-.lt1n to who!-.~ 0i':ici... Jc\ni\t> ~·,y E
h~rediiary right vr i:-. i'~guJa.tcd by Jsage t1r 1~ ~pe~.ificJily provid..;d
fur by the founder, su lung as such schcmc of succession is in
force''.

It will be noticed that this definition in the 1951 Act omits the system of
nomination which was there in Section 5(6) of !927 Act. F
Sub-clause (I) of Section 5 of the 1951 Act repealed the provisions
of 1927 Act. Section 5 of 1951 Act is however to be read in conjunction
with Section 103 of the said Act. We are only concerned with sub··clauses
(a) and (b) of Section 103 of the J951 Act, which read as follows :
G
"(a) all rules made, notifications or certificates issued, orders
passed, decisions made, proceedings or action taken, schemes
settled and things done by the Government, the Board or its
President or by an Assistant Commissioner under the said Act,
shall, in-so-far as they are not inconsistent, with this Act, be H
1040 SUPREME COURT REPORTS [2000[ 1 S.C.R.

A deemed to have been made, issued, passed, taken, settled or done
by the appropriate authority under the corresponding provisions
of this Act and shall, subject to the provisions of clause (b) must
have effect accordingly;

Explanation : Certificates isswd by the Board under Section 78
B of the said Act sha11 be deemed to have been validly issued under
that Section, notwithstanding that the certificates were issued before
the making of rules prescribing the manner of their issue.

(b) If the Govt: ~nment an; satisfied that any such rule, notifica-
tion, certificate, order, decision, proceeding, action, scheme or
c thing, although not inconsisknt with this Act would not have been
made, issued, passed, taken, settled or dune, or would nut have
been made, issued, passed, taken, settled or done in the form
adopted, if this Act had been in force at the time, they shall have
power, by order made at any time within one year from the
D commencement of this Act, to cancel or to modify in such manner
as may be specifiec'. in the order, the said rule, notification, certifi-
cate, ord.:r, decisions, proceeding, action, scheme or thing, and
thereupon, the same shall stand cancelled or modified as directed
in the said order, with effect from the date on which it was made
E or from such later date as may be specified therein :

Provided that before making any such nrder, the governmtnt
shall pubiish, in the Fort St. Gt:orge Gazdte, a notice of their
intention tu do so, fix a period which shall not be less than two
months from the date of the publication of the notice for the
F persons affected by the order to show cause against the making
thereof and consider their representations, if any;

A reading of Sections 5 and 103 of the 1951 Act, would show that
the ! 927 Act was repealed, but the repeal was subject to certain conditions
G · as stated in Section 103 of 1951 Act. We shall come back to the effect of
Section 103 on the 1927 Act a little later.

We shall next come to the effect of the order dated 4.10.1935 passed
in O.A. No. 165/1935 and a;:so as to the dfect of th\: Will executed by D.
Venkatarangaiah on 9.9.1941 which came into force on his death on
H 19.9.1943.
D. SRINIVASAN v. THE COMMR. 1041

The order dated 4.10.1935 was passed when the 1927 Act was in A
force, and by virtue of the Will executed by the said Venkatarangaiah, who
was already managing the temple affairs, he would be a 'hereditary trustee'
inasmuch as, so far as he was concerned, the original founder P. Venkata
Varada Doss in his Will dated 9.7.1915, nominated D. Venkatarangaiah, as
his successor. As already stated, sub-clause (6) of Section 9 of the 1927 Act B
defined 'hereditary tn1stee', among other persons, as a person who was
nomi'lated by the trustees, for the time being in office, or otherwise
nominated by the founder. Venkatarangaiah was the person who was
nominated by the founder, and therefore, in that capacity he became the
'hereditary trnstee'. The Commissioner's order dated 4.10.1935 does not,
however, deal with the question as to what should happen after the death
c
of Venkatarangaiah. During the time of Venkatarangaiah the temple was
'Excepted temple' under Section 9(5) of the 1927 Act, because succession
was specifically provided by the founder.

The next question is as to whether the persons appointed by D
Venkatarangaiah, as per his Will, became 'Heredita1y Trustees'?

Inasmuch as Venkatarangaiah died on 19.9.43 and nominated the five
persons, whose names have been mentioned earlier, as trustees to take over
the management of the temple, the question arises as to whether these five E
persons could be 'Heredita1y Trnstees'. It will be noticed that in 1943, the
Statute that was in force was the 1927 Act and under sub-clause (6) of
Section 9 of the Act, persons nominated by the Trustees for the time being
in office would also be 'hereditary trnstees' and there would be no difficulty
in calling the said five persons nominated by Venkatarangaiah as
'hereditary trustees' for the purposes of the Act of 1927.
F

We have already stated that the suit of 1972 was filed by E.
Venkatasubbaiah, D. Adiseshayya and Y.R. Natarajan. Of them only E.
Venkatasubbaiah was one of the five trustees nominated by Venkataran-
gaiah. Others were nominated by the surviving trustees. Thus, so far as E. G
Venkatasubbaiah, the first plaintiff was concerned, he was one of the five
persons nominated by Venkatarangaiah. But Adiseshayya and Natarajan
were not persons nominated by Venkatarangaiah. It must, therefore be
accepted, so far as E. Venkatasubbaiah was concerned, inasmuch as he
became a trustee in 1943, on the death of Venkatarangaiah and before the H
L042 Sl:PREM F COl "RT RFPORTS [2000j l S.C.R.
A commencement of the 1951 Act, he was a 'hereditary trustee' being a person
nominated by Venkatarangaiah, within the meaning of sub-clause (6) of
Section 9 of the 1927 Act. But the position b that the said E. Venkatasub-
baiah is also no more omd any declaration concerning him will be of no
consequence. In fact, he was impleaded as a 2nd respondent in the L.P.A.
B and shown as a person who died and that there are no legal n:presentatives.

So far as the other plaintiffs, namely D. Adiseshayya and Y.R.
~atarajan an: concerned, the question would be whether they could be
called ''ht:reditary trusted" under sub-clause (11) of Section 6 of 1959 Act?
That was the Act in force in 1927. The further question would be whether
C the appellant before us, who is D. Srinivasan and who was a person who
was nominated subsequently by the remaining trustees, and which event
took plact: aftt:r 1951, cuuld be called 'hereditary trustee'"!

After the commencement of the 1951 Act, the definition of
D 'hereditwy trustee' contained in sub-clause (9) of Section 6 of that Act did
not recognise a person who was nominated by othcr trustees, as 'hereditary
trustees'. Thus, so far those trustees nominated by tht: said five persons after
the 1951 Act aJ ~ concerned, they being persons nominated by the trustees
who wen: nommated by Venkatarangayya's nomim:es, in our view, would
E not be 'heredi!uty ow·tees Jnder Si:ctil'n 6(9) of the 1951 Act. It Is true that
the Board of l'tlskoi.;s cr~atcd by \"cnkatarangayya tuuld be heated as a
flucruatinf!, hudv frnrn tim.., to time and any rights vested in that bndy tu
nominate "hereditary trustees' :mdcr >Uh··daust: (6) of Section 9 of the 1927
Act, would remain unless taken away by the 1951 Act. The question is
whether after the· l 927 Act was repealed in the 1951 Act, any rights created
F under the I927 Act in the Board of trustt:es could continue in force and
this question wuuld depend upon the provisions of Section 103 of the 1951
Act.

We haw already referred to sub-clause (a) of Se"ction L03 of :951
G Act. It will be noticed that under the d.:;finition of 'hereditary trustees' in the
1951 Act, a pcr~on nominated by the Board of trustees is no longer to be
treated as 'henditary tmstees'. The same position prevails under sub-
clause(ll) of Stction 6 of 1959 Act. Both the ~951 Act and 1959 Act do
not describe a p.:rson nominated by Board of Trustees by an existing Board
H of trustees as 'hereditary trustees'.
D. SRINIVASAN v. THE COMMR. 1043

lt is true that rights vested in any person or authority under a A
repealed Statute arc 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 ac-
crued to any person 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
B
no longer to call the persons nominated by the Board of 'hereditary trnstees',
after 1951 as ·1tereditary trnstees'. 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) thrn those per~ons would not be c
gowrncd by the definition of sub-clause (6) of Section 9 of the 1927 Act,
but will be governed hy Section 6(9) of the 1951 Act. Such person cannot
be described a~ 'hereditary trnstees' inasmuch as by altering the ddinitlon
of 'hereditary trnstees', the 1951 Act has chosen to interfere with an existing
right of Board to nominate fresh trustees as 'heredita1y trnstees'.
D
We, therefore, hold that if any trustee has been nominated sub-
sequent to the commencement of the 1951 Act by the Board of Trustees
who were in office prior to the 1951 Act or by their nominees then such
persons could not be called 'hereditary trnstee' within the meaning of
sub-clam,e (6) of Section 9 of 1951 Act. Similarly, if the persons who wen; E
thcmsc lvcs not hi::n:ditary trustees after the I951 Act, tither by tht.0mselves
or along with other hereditary trustei::s aftt:r 1951, numinati::d trustees, then
such trustet0s would nut be hereditary trustees. The position is no different
after the 1959 Act.
F
Therefort:, the other two plaintiffs in the suit, namely, D. Adiscshayya
and Y.R. Natarajan and the present appellant - D. Srinivasan before us
being persons who were nominated as trustees subsequent to the commen-
cement of the 1951 Act, cannot be described as 'hereditllly trnstees' for the
purposes of 1951 Act or 1959 Act.
G
This docs nut, 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 l 951 Act or by the
post l 9.51 Acts. It will be open tu the nominated five trustees in office, from
time to time to nominate fresh trustees whenever there is any vacancy ir. H
1044 SUPREME COVRT REPORTS [2000] 1 S.C.R.
A these five offices of trustees. Such persons can be trustees but cannot be
called 'hereditary t/Ustees'. 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 trnstees'.

B Other submissions on the ground of usage made by the appellant's
counsd cannot be permitted inasmuch as no such question was raised or
pleaded in the pleadings before the Department or in the suit. As the said
question was raised for the first time in the appeal, the said contention is
not permitted.
c For the reasons stated above, the appeal is dismissed, subject to the
above observations and directions. There shall be no order as to costs.

R.K.S. Appeal dismissed.