Brahateeswaran alias Shanmugasundaram and Another vs Bava C. Chokkappa Mudaliar and Others

Jagadisan, J.—These are two petitions for leave to appeal to the Supreme Court of India from the judgment and decree of this Court in Appeal No. 88 of 1958 which reversed the judgment of the District Court of East Thanjavur at Nagapattinam in Original Petition No. 27 of 1948.

The dispute between the parties relates to the trusteeship of a kattalai attached to Sri Thiagarajaswami Devastanam, Tiruvarur, Thanjavur district called the Ulthurai Kattalai. This history of this ancient dispute has been fully set out in the judgment sought to be appealed, and there is no necessity to refer to it again in this order. The Petitioners in Supreme Court Petition, of 1962 are the heirs of the deceased, Bava Vaithilinga Mudaliar. They claim to be co-trustees with V.S. Thiagaraja Mudaliar and they deny the right of Bava Gopalaswami Mudaliar or his heirs. The Petitioner in Supreme Court Petition No. 106 of 1962 is V.S. Thiagaraja Mudaliar and he also disputes the right of Gopalaswami and his heirs. There is no dispute that the Petitioner in Supreme Court Petition No. 106 of 1962 is one of the hereditary trustees. The real question that was mooted in the appeal was whether Bava Gopalaswami was a hereditary trustee of the kattalai. This Court answered the question in the affirmative and agreed with the conclusion of the Hindu Religious Endowments Board in the proceedings before it.

The first point raised by the learned Advocate-General appearing for the Petitioner in Supreme Court Petition No. 106 of 1962 is that leave should be granted automatically as the judgment of this Court is one of reversal of that of the Court below, and as the pecuniary value of the subject-matter of the dispute both in the Court below and in this Court is Rupees twenty-five thousands as given by the Respondents, in this petition who were the Appellants in the appeal. If the value of the subject-matter of the dispute between the parties was capable of determination, and it was determined as Rupees twenty-five thousands by the Respondents, this argument of the learned Advocate-General would have force. Indeed if that were the true position, the Petitioners would be entitled to leave as a matter of right under Article 133 of the Constitution. The appeal memorandum merely states that the value of the appeal is rupees twenty-five thousands. The appeal arose out of an application field in the District Court of East Thanjavur at Nagapattinam u/s 84(2) of Madras Act II of 1927, which was repealed by Madras Act XIX of 1951. The proper forum for filing such an application was only the District Court. The Court fee payable on that application was also a fixed fee as prescribed by appropriate notification under the Act. The applicant in the District Court seeking to set aside an order of the Board is not obliged to state the pecuniary value of the subject-matter of the claim either for purpose of jurisdiction or for purposes of fixation of Court-fee. As stated already; the Court-fee payable is not on an ad valorem scale but only a specific fixed fee. An appeal also would lie only to the High Court as prescribed by the statute. Any appeal from the order of the District Court which is appealable would, of course, lie and can lie only to the High Court. Under these circumstances the fact that the Respondents stated in the memorandum of appeal that the value was rupees twenty-five thousands ought not to be taken into account for the purpose of determining the pecuniary value of the claim for purposes of obtaining leave under Article 133 of the Constitution. We are, therefore, unable to hold that the Petitioners can ask for leave as a matter of right taking advantage of the statement of valuation given in the memorandum of appeal by the Respondents which, as stated already, is not the pecuniary value of the claim either for purposes of Court-fee or for purposes of jurisdiction.

There is also another aspect of the question, whether the valuation given in the appeal memorandum is conclusive for determining the constitutional right of appeal, which has got to be considered. It has been held by a Full Bench of this Court in Kuppanna v. Peruma ILR (1961) Mad. 1143 (F.B.) that for ascertaining the value of the subject-matter in dispute for purposes of Article 133(1)(a) of the Constitution and Section 110 of Code of Civil Procedure, it would be open to the party, he be the Plaintiff or the Defendant, to go behind the valuation adopted in the plaint or in the memorandum of appeal as the case may be and show the real value thereof except where (i) there has been a judicial adjudication of the correctness of the original valuation in such a way as to attract the principle of estoppel or the rule of res judicata or (ii) where the party making the original valuation or the one adopting it had an option to give the value or the correct value and while exercising that option by giving one of such values he gained an advantage or made the opposite party suffer a detriment. The present case does not fall within the exceptions enumerated by the Full Bench. There was no necessity for either party to value the subject-matter in dispute and of course there was no judicial adjudication in regard to it. Nor can it be said that the Appellant in the appeal had an, option to give either the valuation adopted in the Court below, or the correct valuation and that he deliberately adopted one value and thereby gained any advantage for himself or caused detriment to his opponent .

Mr. T.S. Kuppuswamy Iyer, learned Counsel appearing for the Petitioner in Supreme Court Petition No. 48 of 1962, had a novel argument to urge when he tried to bring the case within the second of the exceptions referred to by the Full Bench. His submission was that the Appellant having adopted the value of rupees twenty-five thousand and having had the benefit of taxation of costs including Counsel''s fee on the basis of rupees twenty-five thousand had gained an advantage and that would debar them from now contending that the true or correct value is not the said amount of rupees twenty-five thousand. Learned Counsel overlooked that the Respondents did not have any option at all before them for the simple reason that no valuation was given by their adversary in the Court below. The advantage or detriment referred to in the Full Bench decision is one that relates to the forum of the appeal and not to incidents like payment of Counsel''s fee or taxation of costs. In our opinion the Respondents in these applications are not bound by the value given in the appeal memorandum so as to be precluded from now asserting what would be the true valuation. We have, therefore, to deal with these applications independently of the valuation of rupees twenty-five thousand given by the Respondents in the appeal memorandum.

The subject-matter in dispute between the parties is the trusteeship of a kattalai attached to a public temple. There is evidence to show that about 6 velis of lands are endowed for this ulthurai kattalai, and that the kattalai also receives a mohini allowance of rupees eight hundred per year from the Government. The right of V.S. Thiagaraja Mudaliar to be a hereditary trustee of this kattalai is of course not in dispute. The question is whether the Bava family has got the hereditary rights in this kattalai and if so he is the member of that family who is at present entitled to be trustee with Thiagaraja Mudaliar. The hereditary right of the Bava family has been conceded on more than one occasion, and we have referred to these .concessions in our judgment. The attempt of Thiagaraja Mudaliar to dislodge the Bava family altogether from the scene of ulthurai kattalai in the face of several admissions and concessions made from time to time in the course of various litigation seems to be beset with difficulties if it is not altogether impossible. If the Bava family has got the hereditary right, then the other simple; question would only be whether the Petitioners in Supreme Court Petition No. 48 of 1962 are the rightful heirs of the Bava family entitled to be in. office or whether the Respondents in these applications would be the competent trustees. The task of estimating the pecuniary value of a joint right of trusteeship is, of course, not easy, assuming that the right can be equated to any equivalent in money. That a trusteeship as such attached to a public, temple or an endowment is incapable of valuation has been the consistent, view taken by this Court, atleast after the decision of a Division Bench reported in Balaramireddy v. Sheik Masthan Sahib (1953) 2 M.L.J. 276 (H.N.). In that judgment Govinda Menon and Basheer Ahmed Sayeed JJ., held as follows:

Where a wakf in question related to property worth admittedly more than Rs. 50,000 but the question decided in the second appeal was with respect to the trusteeship of the mosque and the subject-matter of the appeal to the Supreme Court is whether the Plaintiff has the right to function as trustee, it cannot be said that the subject-matter of the suit is capable of valuation and as such Section 110(1) of the CPC and Article 133(1)(a) of the Constitution cannot in strict terms apply. Though there was an ancillary prayer for recovery of possession of properties and sums of money on a rendition of accounts and a prayer for a permanent injunction restraining the Defendant and his men from interfering with the Plaintiff''s right to manage the mosque and its endowments still the essential subject-matter of the suit is the post of trusteeship of the mosque and nothing more. The other reliefs automatically follow if it is found that the Plaintiff is the validly appointed trustee. If the Plaintiff''s title is negatived then the other reliefs cannot be granted. Accordingly Article 133(1)(a) of the Constitution and Section 110(1), Code of Civil Procedure, cannot be invoked. Where the case does not involve any substantial question of law leave to appeal must be refused.

There are several unreported decisions of this Court which have followed this decision of the Division Bench. It is enough to refer only to the latest on the subject, Supreme Court Petition No. 28 of 1960, Chokkalinga Sethurayar and Anr. v. Arumainayagum and Ors. The learned Chief Justice and Ramakhishnan J., followed the decision in Balaramireddy v. Sheik Masthan Saheb (1953) 2 M.L.J. 296 (H.N.). The learned Chief Justice observed thus in his order.

It is now admitted before us that independent of the question regarding trusteeship there is no controversy in regard to title to the properties involved in the suit. In other words it was conceded that possession of the properties would be taken by the person who would be declared by the Court to be the trustee. The question therefore arises what is the value of the subject-matter in dispute. Precisely the same question arose for consideration in Balaramireddy v. Shaik Masthan Saheb (1953) 2 M.L.J. 296 (H.N.), where a Bench of this Court held that a prayer for recovery of possession of properties, under those circumstances could only be held to be incidental and that the subject-matter of the appeal should be regarded as one relating to the office of trusteeship which being incapable of valuation would not come under Article 133(1)(a) of the Constitution.

The learned Advocate-General frankly conceded that these decisions were against his contention, namely, that the value of the subject-matter in dispute should be taken to be rupees twenty-five thousand as stated in the appeal memorandum, but he however submitted that they require reconsideration. It is pointed out that all the decisions referred to by Govinda Menon J., in Balaramireddy v. Shaik Masthan Saheb (1953) 2 M.L.J. 296 (H.N.) are cases not governing trusteeship. The decision in Subramania Ayyar v. Sellammal ILR (1915) Mad. 843 related to future mesne profits. (Manganna v. Mahalakshamma ILR (1929) Mad. 167 (P.C.) was a case of addition of interest on mesne profits. Appala Raja and Others Vs. Rangappa Naicker and Others, was a case where the right was in respect of the use of water in a pond. We have examined these cases and we agree with the learned Advocate-General that the cases referred to in Balaramireddy v. Shaik Masthan Saheb (1953) 2 M.L.J. 296 (H.N.) did not relate to the question whether a trusteeship as such de horse the properties was capable of any pecuniary valuation. But, in our opinion, the basis of the decision of Govinda Menon J., is that disputed question of trusteeship relates only to the office, and not to the properties which the trustees may hold qua trustee. The learned Judge has pointed out that the right to possess the trust properties is a necessary incident of the office and that whoever establishes his claim to the office would be entitled to possession without any further adjudication in the matter. The contention of the learned Advocate-General however is that it is impossible to dissociate the office from the properties, as the one goes with the other. A trustee cannot function without being in management of the trust properties and the trust properties cannot vest in anybody else other than the trustee. In support of this proposition reliance is placed upon the decision in Kandaswami v. Vagheesam ILR (1942) Mad. 13 (F.B.). The question there was whether a suit for a declaration of title to the office of mahant of a mutt and for possession of the office without a prayer for possession of the properties attached to the office when the Plaintiff was not in possession of them was barred by the provisions of Section 42 of the Special Relief Act. That was the decision of the Full Bench which held that such a view was not permissible and that failure to ask for possession of the mutt properties as fatal to the maintainability of the suit. Pointed reference is made to the following observation of Leach C.J., at page 22.

...It has to be borne in mind that it is not possible to separate the office from the properties which form the endowments of the office. This has been very clearly laid down by the Privy Council in Gnanasambanda Pandora Sannathi v. Velu Pandaram ILR (1889) Mad. 271 (P.C.) which concerned the right to the office of trustee of a certain temple. Sir Richard Couch, in delivering the judgment of the Board said:

Their Lordships are of opinion that there is no distinction between the office and the property of the endowment.

Again at Page 23.

Here the Appellant is endeavouring to separate the office from its endowments. This he clearly cannot do and, as he is asking for a declaration of his title to the office and is not in possession of its properties, he must by reason of Section 42 of the Specific Relief Act ask for possession. His failure to do so vitiates his suit.

These observations of the learned Chief Justice were made in the context of Section 42 of the Specific Relief Act which prohibits a suit for bare declaration, where consequential relief can be asked for. A trustee who is seeking to recover office and who is not in possession of the properties attached to the office cannot, in view of the decision of the Full Bench, ask for a mere declaration of his title to the office, as he was bound to sue for the consequential relief of possession of the properties as well. The principle of Section 42 of the Specific Relief Act prohibiting bare declaratory suits in cases where consequential reliefs are open is only a rule of public policy which discourages multiplicity of suits and proceedings. An aggrieved person cannot go to a Court of law and ask for piecemeal reliefs in instalments. He cannot go to the Court and ask at first for a declaration of the title and then at the end of it file another suit over again to obtain other reliefs which really flow from the previous declaration already adjudicated in his, favour. The law requires that he should combine in one suit all the reliefs which he is capable of asking even at the first instance. We do not understand this decision of the Full Bench as establishing that there is a complete merger of the office and the properties so as to lead to the inference that any relief asked for in respect of the office should be treated to be as one with reference to the properties.

Learned Advocate-General referred to Section 124 of the Limitation Act and provisions of the Court Fees Act to show that the office of trusteeship and the trust properties have always been dealt with together as if they compose one unit. We are unable to say that the principle of the decision of the Division Bench in Palagani Balarami Reddy Vs. Shaik Masthan Saheb, is in any way in conflict with the division of the Full Bench in Kandaswami v. Vagheesam ILR (1942) Mad. 13 (F.B.). As stated already, atleast from 1953 onwards, no dissent has been expressed by this Court from the decision in Palagani Balarami Reddy Vs. Shaik Masthan Saheb, and we do not feel convinced that the decision requires reconsideration.

Mr. M.S. Venkatarama Iyer, learned Counsel for the Respondent, submitted that proceedings u/s 84 of the Hindu Religious Endowments Act, which led to the filing of a petition in the civil Court ought not to be equated to or treated as declaratory suit, and in support of this proposition relied upon the decision in Damodaran v. H.R.E., Board, Madras ILR (1929) Mad. 266 (F.B.) and the observation at page 269.

They are not really suits for any declaratory decrees.

The learned Counsel also contended that the only question which arose for consideration in a civil Court being whether the order of the Endowment Board was right or wrong, the subject-matter of the dispute cannot be said to involve a claim or dispute relating to trusteeship. We are unable to accept this contention either. In substance, the proceedings in the civil Court which no doubt follow an adjudication made by the Special Tribunal relate only to the disputed claim of trusteeship and the real and the live issue in the civil Court is the disputed claim of trusteeship. In order to decide the question whether the Endowments Board decided rightly or wrongly, necessarily the civil Court is not merely competent but is bound to adjudicate on the trusteeship right.

With respect, we follow the decision in Palagani Balarami Reddy Vs. Shaik Masthan Saheb, and the unreported decision in Supreme Court Petition 28 of 1960, and we hold that the disputed right of joint trusteeship regarding the ulthurai kattalai is one which is incapable of valuation.

A hereditary right to the office of a trustee or manager of a temple has the characteristics of properties, and it is now settled law that in fact it is a species of property. The decision, which is now sought to be appealed from, has held that it is a proprietary right. Our attention was also drawn to a recent decision of a Bench of this Court in Srisailasri Subramania Desika Gnanasambanda Pandarasannadahi v. State of Madras ILR (1962) Mad. 449. It was held in that case that where a trusteeship is heritable the indicia of ownership, viz., possession and transmission to heirs is present; but it is not alienable because of the peculiar nature of the office and cannot for that reason make the trusteeship any the less a property. Therefore irrespective of the question of any beneficial interest in or emoluments attached to the office of trustee or manager of a temple or endowments he who obtains the right to the office by hereditary right would be entitled to it as his property. With respect we agree with this decision. From this, however, it does not follow that the right is capable of pecuniary valuation and that the measure of the valuation should be the value of the properties attached to the office. The Petitioners cannot be said to have fulfilled the requirements of Article 133(1)(a) or (b) of the Constitution by reason of the hereditary right, in question, being treated in law as a kind of property.

The learned Advocate-General further submitted that in any event substantial questions of law arises for decision in the contemplated appeal, and that a certificate should be issued under Article 133(1)(c) of the Constitution. The submission was that the right to continue the appeal by the heirs of the deceased Bava Gopalaswami Mudaliar in a proceeding arising out of Section 8 of the Act is a question of great and sufficient importance on which the decision of the highest Court would be necessary. But the Act itself has now been repealed and we cannot say that the same question would recur in another form even under the later enactments. We do not think that this is a question of such importance as would justify the granting of leave under Article 133(1)(c). The other question relates to the claim of hereditary trusteeship. In view of the concessions made previously that the Bava family had hereditary right in the office we cannot say that the question really arises for decision. It is no doubt true that we have gone into the question ourselves and given a decision upholding the right of the Bava family. But the question whether the family has got a hereditary right and the further question whether which member of that family can now hold office along with V.S. Thiagaraja Mudaliar are not certainly substantial questions of law which can afford good ground for a certificate of fitness under Article 133(1)(c) of the Constitution.

The petitions fail and are dismissed with costs.