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Judgment
Varadachariar, J.—This appeal and the connected revision petition arise out of an application u/s 80(2) of the Madras Hindu Religious
Endowments Act (I of 1925), in respect of the temple of Sri Ranganadhaswami at Hospet. In the first instance, it was claimed both before the
Board and before the District Court that the temple was a private one but that part of the claim has not been pressed and the only point remaining
to be determined is whether or not it falls within the definition of ""an excepted temple"" in Section 9(5) of the Act.
The learned District Judge has referred to one or two errors into which the Board had fallen when passing its order dated 21st April, 1926. As
the learned District Judge has dealt with the matter fully, I do not see that anything turns upon the errors found in the Board''s order. The learned
District Judge has held that though the petitioner''s grandfather one Mr. Chelapathi Rao Naidu was the founder (wholly or at least in part) of the
temple about the year 1870 it is not possible to say that the right to succession to the office of trustee in this case is hereditary, as required by
Section 9, Clause 5(b) (as it stood prior to the amendment in 1930). This conclusion is based on his finding that after the death of the original
Chelapathi Rao Naidu, the management has not been in the hands of his heirs but of some persons related to him by marriage. The evidence shows
that the management has for a long time been in the hands of some agents, namely, P.W. 5 and his father and uncle. In some of the documents
reference is made to one or another of Chelapathi Rao Naidu''s relations but beyond that it is difficult to find any indication of the part that they
took in the management. As regards the petitioner, it is not possible to say from the evidence that he took any part in the management till disputes
arose between the agent and the local temple committee.
In the ordinary course, I should have followed he judgment of the Full Bench in Rajagopala Chettiar v. Hindu Religious Endowments Board,
Madras (1933) 66 M.L.J. 43 : ILR 57 Mad. 271 and held that no appeal lay. But Mr. Ganapathi Aiyar contended that that judgment required
reconsideration, in the light of the decision of the Privy Council in Maung Ba Thaw v. Ma Pin (1934) 66 M.L.J. 404 : L.R. 61 IndAp 158 : ILR 12
Rang. 194 . It is true that the decision in the Rangoon case was pronounced after the judgment of the Full Bench but I do not find in it the
enunciation of any new principle not present to the minds of the learned Judges who pronounced the Full Bench decision. In the recent case, their
Lordships only reaffirmed the principle of their earlier decision in Secretary of State for India v. Chellikani Rama Rao (1916) 31 M.L.J. 324 : L.R.
43 IndAp 192 : ILR 39 Mad. 617 and that judgment has been considered at great length in the Full Bench judgments. Mr. Ganapathi Aiyar
suggested that two at least of the learned Judges who took part in the Full Bench case have proceeded on the footing that Secretary of State for
India v. Chellikani Rama Rao (1916) 31 M.L.J. 324 : L.R. 43 IndAp 192 : ILR 39 Mad. 617 turned upon the language of the definition of
decree"" found in the Code of 1882, and therefore afforded no guidance under the Code of 1908; and he asked us to say that the decision in
Maung BaThaw v. Ma Pin (1934) 66 M.L.J. 404 : L.R. 61 IndAp 158 : ILR 12 Rang. 194 shows that that assumption is not right. Whatever may
be said against some of the observations in the Full Bench case, I do not understand the basis of the Full Bench decision to be as assumed by Mr.
Ganapathi Aiyar. It seems to me to proceed on the footing that the Religious Endowments Act has by its own scheme clearly indicated a distinction
between cases in which questions arising under it are to be dealt with by a Civil Court as in a ""suit"" and cases in which questions are to be dealt
with in a Civil Court as on an ""application"". In the latter case, it cannot be denied that under the scheme of the Code no appeal will lie unless
specially provided for. I therefore see no reason for not following the Full Bench ruling and accordingly hold that the appeal is incompetent.
Dealing with the matter as one coming up in revision there can be no question as to the jurisdiction of the lower Court and I find nothing in the
way of material irregularity alleged against the proceedings in the lower Court. At best, all that could be said is that the learned Judge has either
misinterpreted the definition of ""an excepted temple"" or erred in holding that the succession in this case has not been hereditary. It seems to me
very doubtful if either of these grounds will suffice to bring the case under the revisional jurisdiction of this Court. So far as the finding of fact is
concerned, I see no reason to differ from it, even if I could.
On the point of law, Mr. Ganapathi Aiyar relied upon the decision of the Privy Council in (1889) L.R. 16 I.A. 137 (Privy Council) and
contended that once the Court holds that the temple was founded by a private founder it must follow as a matter of law that succession to it is
hereditary unless the deed of endowment or the usage of the institution proves the contrary; and there being nothing to the contrary on this case, he
argued that the learned Judge should have held that the case falls within the definition of ""an excepted temple"" even if succession has not in fact
been hereditary since the days of the original founder. This point was dealt with by me as a single Judge in Kallepalle Krishnamurthi and Another
Vs. The Madras Hindu Religious Endowments Board and Others, . Having carefully listened to the arguments of Mr. Ganapathi Aiyar I have not
been persuaded that the view there expressed is not correct, so far as the scheme of the Religious Endowments Act is concerned. A distinction
was attempted to be made on the ground that in this case the petitioner has become manager and that therefore his management should be held to
be in his hereditary right. I am not by any means satisfied on the evidence that he has really entered upon the management in any effective sense.
But even if a different conclusion should be possible on the facts, I do not see that it affects the legal position because he has not succeeded as the
heir of the last trustee nor was the last trustee in office as the heir of his predecessor. In Kallepalle Krishnamurthi and Another Vs. The Madras
Hindu Religious Endowments Board and Others, , stress was no doubt laid upon the use of the expression ""has been'''' in the amendment
introduced in 1930 but it does not appear to me that the expression ""is hereditary"", in Section 9, Clause 5(b) means anything different. Both of
them seem to me to refer to cases in which succession has in fact been devolving hereditarily from the founder. Both the appeal and the Civil
Revision Petition there fore fail arid are dismissed with costs in the anneal Only.
Mockett, J.
I agree. I desire to add a few words with regard to two arguments of Mr. Ganapathi Aiyar.
He argued that the authority of the Full Bench decision in Rajagopala Chettiar v. Hindu Religious Endowments Board, Madras (1933) 66
M.L.J. 43 : ILR 57 Mad. 271 , was shaken by the subsequent decision of the Judicial Committee reported in Maung Ba Thaw v. Ma Pin (1934)
66 M.L.J. 404 : L.R. 61 IndAp 158 : ILR 12 Rang. 194 . It will be seen that the Board in that case referred to its own decision in Secretary of
State for India v. Chellikani Rama Rao (1916) 31 M.L.J. 324 : L.R. 43 IndAp 192 : ILR 39 Mad. 617 , a Madras case, and it does not seem to
me that the decision in Maung Ba Thaw v. Ma Pin (1934) 66 M.L.J. 404 : L.R. 61 IndAp 158 : ILR 12 Rang. 194 has in any way altered the
position as it stood at the date of the decision of the Full Bench. The case in Secretary of State for India v. Chellikani Rama Rao (1916) 31 M.L.J.
324 : L.R. 43 IndAp 192 : ILR 39 Mad. 617 was fully considered by the Full Bench and the actual decision in Maung Ba Thaw v. Ma Pin (1934)
66 M.L.J. 404 : L.R. 61 IndAp 158 : ILR 12 Rang. 194 has been the subject of discussion in a later decision by a Bench of this High Court
reported in Krishnamurthi Aiyar v. Special Deputy Collector of Land Acquisition, Kumbakonam (1935) 71 M.L.J. 76 : ILR 59 Mad. 554. In that
case Mr. Justice Madhavan Nair expresses the view that nothing that he had read in the Rangoon case affects the opinion expressed by him in the
Full Bench case. These matters are therein fully considered and I agree with my learned brother that there is no material before us on which we can
hold that we are not bound by the Full Bench decision.
Mr. Ganapathi Aiyar argued further an interesting point. He points out that it is settled law according to the decision of the Judicial Committee in
(1889) L.R. 16 I.A. 137 (Privy Council) , that the right of the claimant to the trusteeship-of a temple is presumed in his favour if it can be shown
that the temple had been founded by the claimant''s ancestors and no proof of any usage at variance with this presumption is forthcoming. That rule
of Hindu Law, says Mr. Ganapathi Aiyar, affects the meaning of Section 9, Clause 5 of the Madras Hindu Religious Endowments Act. That very
point has been dealt with by my learned brother in the case reported in Kallepalle Krishnamurthi and Another Vs. The Madras Hindu Religious
Endowments Board and Others, . I desire to express my complete agreement with that decision and in particular for the reasons given at page
It seems too that whether the words are ""is"" or ""has been"" the effect is the same. As my learned brother points out, the fact that many years
ago this temple was founded is not surely what is contemplated by the Act but what is contemplated is a consideration of the de facto exercise of
the hereditary right and not a mere presumptive right not exercised for several generations. I agree that this Appeal and the Civil Revision Petition
must be dismissed for reasons given.