Hazarimull Chandukchand (died) represented by Chuni Bai vs N.R. Vedachala Chettiar and Another

Horace Owen Compton Beasley, Kt., C.J.—This is an appeal from a judgment of Mr. Justice Waller. He had before him a suit claiming

reliefs against seven defendants. The 1st defendant was one of the trustees of a: temple in the Chingleput District and the reliefs sought against him

were his removal from trusteeship, an account and various other reliefs which are properly to be obtained u/s 73 of the 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 the 2nd defendant and he is

admittedly the alienee 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 Aiyar who was appearing for the plaintiffs did not press his claim against the 1st defendant. It should be remarked that the 1st, plaintiff

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 the 1st: defendant by reason of the fact that the suit in this High Court was barred by the provisions of Section 73 of the Madras Hindu

Religious Endowments Act. Accordingly, the suit against the 1st defendant was dismissed. That leaves only the alienees, Of these the alienees other

than the 2nd defendant 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. The 2nd defendant appeals. His contention here is that the claim against

him is one within the provisions of Section 73(2) of the Madras 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 of Order 1 of the First Schedule of the Code of Civil Procedure, 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 of the 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 I.L.R (1931) 54 M. 1011 : 61 M.L.J. 815 a decision of a Bench of this Court 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 of the 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 of the 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 of the Madras 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 of the CPC 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 it 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.,

Venkata-ramana Aiyangar v. Kasturiranga Aiyangar ILR (1916) 40 M. 212 : 31 M.L.J. 777 no authorities have been quoted in support of the

extreme contention of the appellant here. In that case the Full 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 judgment Sesha-giri Aiyar, J., sa: ys at

page 232 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 of the

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 connexion between those observations

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

do not apply to suits between trustees of a temple and alienees from trustees of a temple of trust property. In Budree Das Mukim v. Chooni Lal

Johurry Woodroffe ILR (1906) 33 C. 789, J., says at p. 804:

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

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

continues:

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

alienee may be joined with it: Sajedur Raja Chowdhry v. Gour Mohun Das Baishnav ILR (1897) 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 misjoinder, and the decision has been dissented from in a later case,

Budh Singh Dudhuria v. Niradbaran Ray (1905) 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 92 of the present Code in a decision of the Privy Council, (1928) ILR 55 519 (Privy Council) . 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 Section 92, Civil Procedure Code. The short answer

to that argument is that the Legislature has not so enacted. If it had 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 earned Counsel for the appellant here is that, although suits between a trustee of a temple and trespassers or

alienees from the trustee of a temple are not within Section 92, Civil Procedure Code, 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 of the 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

subsection (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 Sub-section (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 against the appellant. It is very difficult to see with what object this appeal has 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 earned 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 true. This appeal must be dismissed with costs.

Cornish, J.

I agree. I find it difficult to understand how the judgment reported in Vythilinga Pandara Sannadhli v. Temple Committee, Tinnevelly Circle I.L.R

(1931) 54 M. 1011 : 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 trustee, it is a suit in respect of the administration or management of the trust

within Section 73 of the 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 was 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 person with his consent u/s 92, Civil Procedure Code, must, when it relates to a

religious endowment governed by the Act, be instituted 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 Circle I.L.R (1931) 54 M. 1011 : 61 M.L.J. 815 that

though some of the reliefs specified in Section 92, Civil Procedure Code, are reproduced verbatim 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 Venkataramana Aiyangar v. Kasturiranga Aiyangar ILR (1916) 40

M. 212 : 31 M.L.J. 777 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 scope of Section 73 of the Act, and that this appeal fails.