Hazarimall Chandukchand and Another vs N.R. Vedachala Chettiar and Another

Beasley, C.J.—This is an appeal from a judgment of Waller, J. He had before him a suit claiming reliefs against seven defendants. Defendant

No 1 was one of the trustees of a temple in the Ohingleput District and the beliefs sought against him were his removal from trusteeship, an account

and various other beliefs which are properly to be obtained u/s 73, Madras Hindu Religious Endowments Act. It was alleged that he had badly

administered the trust and that as a result of the maladministration, some [property belonging to the temple and set out in the plaint got into the

hands of the other defendants. The only defendant appealing here is defendant No. 2 and he is admittedly the alliance of the most valuable of all the

trust property and that property is wholly situate in Madras. It is quite true that the suit has all the appearances of a suit under the Madras Hindu

Religious Endowments Act. The sanction Of the Endowments Board has been obtained and the reliefs sought are, as already pointed out, reliefs

which are properly obtainable under that Act But something happened in the lower Court. Mr. Narasimha Ayyar who was appearing for the

plaintiffs did not press his claim against defendant No. 1. It should be remarked that plaintiff No. 1 is also a trustee of the temple and, whether it

was so stated at the time or not, it is quite clear that he could not have pursued his remedy here against defendant No. 1 by reason of the fact that

the suit in this High Court was barfed by the provisions of Section 73, Madras Hindu Religious Endowments Act. Accordingly the suit against

defendant No. 1 was dismissed. That leaves only the alienees. Of these the alienees other than defendant No. 2 have been content with the

position of affairs as decided in the lower Court which was that, as regards the suit properties, the question whether their transfers can be set aside

is to be inquired into. Defendant No. 2 appeals. His contention here is that the claim against him is one within the provisions of Section 73(2).

Hindu Religious Endowments Act, and that this Court therefore has no jurisdiction to try the suit. He puts forward this contention by reason of the

wording of that sub-section which is as follows:

Sections 92 and 93 and Rule 8, Order 1, Schedule 1, Civil Procedure Coda, 1908; shall have no application to any suit claiming any relief in

respect of the administration or management of a religious endowment and no suit in respect of such administration or management shall be

instituted except as provided by this Act.

These words, it is argued, mean that any suit between any parties in which the question of the administration of a religious endowment comes

into question immediately attracts the provisions of Section 73, Madras Hindu Religious Endowments Act. It is argued that that section is wide

enough to embrace any suit in which such a matter has to be considered. The appellant prays in aid Vythilinga Pandara Sannadhi v. Temple

Committee, Tinnevelly Circle 133 Ind.Cas.14 : AIR 1931 Mad. 101 : 54 M. 1011 : 34 L.W. 254 : Ind. Rul. (1931) Mad. 702 : 61 M.L.J. 815, a

decision of a Bench of this Gourt consisting of Curgenven and Cornish, JJ. There, what the court had to consider was a claim of a purely personal

nature. It was a suit to establish the plaintiff''s personal right as hereditary trustee of a certain village temple; and it was held that the provisions of

Section 73 did not apply to any such claim. Then the Bench went on to state as follows:

The suit raises no issue as to the manner in which the trust property has been administered or should in future be administered.

That, it is argued, is a decision to the effect that in all cases where there arises a question involving the consideration of administration of trust

property, the provisions of Section 73, Madras Hindu Religious Endowments Act, are at once attracted. In my view, that is going much beyond

what was expressed in that decision. What we have got to consider here is whether in a case where trustees of a temple are suing entire strangers

to the temple, the provisions of Section 73, Hindu Religious Endowments Act, apply at all. As between a trustee of a temple and other trustees of

the temple or as between the worshippers of a temple and the trustees of a temple and the persons interested in the temple, clearly when questions

of administration of the trust arise, those are matters which come within the scope of Section 73, Hindu Religious Endowments Act. But entirely

different considerations apply where the parties are on the one hand trustees of a temple and on the other hand entire strangers who are claiming to

be alienees of property wrongly obtained by them through the maladministration of a trustee. It seems to me that there is nothing in Section 92,

Civil Procedure Code, which has not been taken bodily out of that section and placed either in Section 73 or other sections of the Madras Hindu

Religious Endowments Act; and is seems to me clear that the Madras Hindu Religious Endowments Act, particularly Section 73, does not

embrace any relief which could not formerly have been obtained under the procedure set out in Section 92, Civil Procedure Code. It is admitted

that such a claim as this would not have been one which was within the provisions or subject to the procedure of Section 92, Civil Procedure

Code. Except for the decision of the Bench already referred to and some observations which appear in a Full Bench case, viz., Venkatarama

Iyengar v. Kasturi Ranga Ayyangar 33 C. 789 : 10 C.W.N. 581, at page 232, no authorities have been quoted in support of the extreme

contention of the appellant here. In that case the Fall Bench was dealing with a case very similar to this and it held that the claim there was not one

which was within the provisions of Section 92 Civil Procedure Code, It is true that at the end of his j udgment Seshagiri Iyer, J, says at page

232Pages of 40 Mad.--[Ed.] as follows

If I may venture a suggestion the time is come for the intervention of the Legislature to insert a clear and unambiguous provision in the CPC that all

reliefs relating to public, religious and charitable trusts, except those which partake of the character of personal or communal rights, should be

litigated only under the provisions of Section 92(1). An amendment of Act XX of 1863 may be necessary to give full effect to this suggestion.

Then Phillips, J., makes similar observations. It is suggested that it was in consequence of those expressions of opinion that Section 73, Madras

Hindu Religious Endowments Act, came to be drafted in the form it is. It is curious that it should be suggested that observations made in 1917

were the reason and cause of a Statute which was only passed ten years later. Personally I can see no connection between those observations and

Section 73 of the Act. There is ample authority in support of the position that Section 92, Civil Procedure Code, and the corresponding section of

the old Oode do not apply to suits between trustees of a temple and alienees from a trustee of a temple of trust property. In Burden Das v. Chooni

Lal 38 Ind. Cas. 73 : 40 M. 212 : 31 M.L.J. 777 : 20 M.L.T. 490 : 5 L.W. 625 : (1917) M.W.N. 400, Woodroffe, J., says at page 804. Page of

33 C.--[Ed]

It is on this principle, viz., that the suit contemplated by the section is directed against trustees, that it has been held that as against strangers it does

not apply.

He then sets out a number of decisions two of which are decisions of this High Court on that point establishing that principle, and then continue:

It has doubtless been held in one case that, where there is a claim for administration of trust which fulls within the section, a claim to eject an alienee

may be joined with it; Sajedur Raja Chowdhry v. Gour Mohan Das 24 C. 418. But the latter claim does not, in my opinion, come within the scope

of the section and is open to the charge of misguide, and the decision has been dissented from in a later case Budhsingh Dudhuri v. Niradbaran

Ray 2 C.L.J. 431, with which I agree.

This decision of the Calcutta High Court was one under the corresponding section of the old Code. There is further authority to be found with

regard to Section 2 of the present Code in a decision of the Privy Council: Abdur Rahim v. Mohamad Barkat Ali 108 Ind. Cas. 361 : AIR 1928

P. C. 16 : 55 I. A. 96 : 55 C. 519 : 9 P.L.T. 65 : I.T.T.40 Cal. 19 27 L. W. 339 32 C.W.N. 482 : 26 A.L.J. 464 : 54 M.L.J. 609 : 30 Bom. L.R.

774 : 48 C.L.J. 55 : (1928) M.W.N. 926. (P. C, Lord Sinha in delivering the judgment of their Lordships states at page 526.

It is urged broadly on behalf of the respondents that all suits founded upon any breach of trust for public purposes of a charitable or religious

nature, irrespective of the relief sought, must be brought in accordance with the provisions of s, 92, Civil Procedure Code. The short answer to

that argument is that the Legislature has not so enacted. If it has so intended, it would have said so in express words, whereas it said, on the

contrary, that only suits claiming any of the reliefs specified in Sub-section (1) shall be instituted in conformity with the provisions of Section 92 (1).

Nevertheless the contention of the learned Counsel for the appellant here is that, although suits between a trustee of a temple and trespassers or

alienees from the trustee of temple are not within Section 92, CPC directly, it is necessary to prove the plaintiff''s case by evidence that the

alienation was the result of mismanagement by that trustee, the provisions of Section 73 Madras Hindu Religious Endowments Act, are at once

attracted. I can see no warrant for any such contention. To so contend is to very widely amend the words in Sub-section (2) of that section. If it

had been intended to deprive the litigant of his right of the choice of the forum, it would have been done so by express enactment and not left to be

a matter of mere implication. I cannot myself see that that deprivation is even implied in subs. 2 to that section. Under these circumstances it is quite

clear to me that the learned trial Judge was quite right in deciding that the court had jurisdiction to proceed with the case as 8gainst the appellant. It

is very difficult to see with what object this appeal bas been presented. The other alienee defendants have been quite content with the position

imposed upon them in the lower Court and it is conceded here by the learned Counsel for the appellant that there can be no bar of limitation even

in the event of the appellant''s success here, to a suit claiming exactly the same reliefs being filed in the District Court at Chingleput. Under these

circumstances, it is very difficult to see what the appellant had to gain by presenting this appeal unless it be time. This appeal must be dismissed

with costs.

Cornish, J.

I agree. I find it difficult to understand hew the judgment reported in Vythilinga Pandara Sannadhi v. Temple Committee, Tinnevelly 133 Ind.

Cas. 14 : AIR 1931 Mad. 101 : 54 M. 1011 : 34 L.W. 254 : Ind. Rul. (1931) Mad. 702 : 61 M.L.J. 815, to which I was a party, is supposed to

give support to the appellant''s contention that if a (Suit raises a question touching the validity of an alienation of trust property by a true-tee, it is a

suit in respect of the administration or management of that trust within Section 73, Madras Hindu Religious Endowments Act. The sole question in

that case was whether a suit to establish a claim to the hereditary trusteeship of a temple was barred by Section 73. We held that it we not for the

reason that it was a suit to establish a private right and not a suit in respect of the administration or management of a temple. In my opinion the

effect of Section 73 of the Act is simply this that a suit which could only be instituted by the Advocate-General or some persons with his consent

u/s 92, CPC must, when it relates to a religious endowment governed by the Act, be institutted by the Endowments Board or by some person

having an interest and with the consent of the Board, It is pointed out in Vythilinga Pandara Sannadhi v. Temple Committee, Tinnevelly 133 Ind.

Cas. 14 : AIR 1931 Mad. 101 : 54 M. 1011 : 34 L.W. 254 : Ind. Rul. (1931) Mad. 702 : 61 M.L.J. 815, that though some of the reliefs specified

in Section 92, CPC are reproduced verbatirk in Section 73 of the Act, the others are provided for elsewhere in the Act. And as it has been held

by the Full Bench in Venkata Rama Iyengar v. Kasturi Ranga Ayyangar 33 C. 789 : 10 C.W.N. 581, that a suit to recover trust property from its

alienees does not come within Section 92 of the Code, I think it follows that such a suit is equally outside the Escape of Section 73 of the Act, and

that this appeal fails.