His Holiness Srila Sri Vythilinga Padara Sannadhi Avergal, Athinakarthar of Thiruvaduthurai Athinam vs The Temple Committee and Another

Curgenven, J.—The plaintiff sued to establish his right as hereditary trustee of the Sri Papavinasaswami Temple at Vikramasingapuram

village in Ambasamudram Taluk of the Tinnevelly District and for certain consequential reliefs. The plaint alleges that the temple committee, the 1st

defendant, in disregard of the plaintiff''s hereditary right as trustee, had held that he had vacated office u/s 51 of the Madras Hindu Religious

Endowments Act and had appointed the 2nd defendant as sole trustee of the temple. The learned Subordinate Judge of Tinnevelly has found that a

suit of this character is barred by the provisions of the Act above referred to, and this is the sole question which we have to decide in appeal.

There is ample authority for the view that a suit to establish a personal right of this character does not fall within the terms of Section 92 of the

Code of Civil Procedure. It is true that in Subramania Pillai v. Krishnaswami Somayajiar ILR (1919) 42 M. 668 a suit by two out of three trustees

of a temple for a declaration that the appointment by the devasthanam committee to fill a vacancy in the third trusteeship was invalid was held to fall

under that section; but this decision was not approved in the Full Bench case, Appanna Poricha v. Narasinga Poricha ILR (1921) 45 M. 113 : 41

M.L.J. 608 in which it was held that the class of suits contemplated in Section 92 was one representative in character, one or more persons being

enabled by it to sue on behalf of the public and sanction being required as a precaution against wasteful litigation. The learned Judges who decided

that case referred with approval to the elaborate judgment of Woodroffe, J., in Budree Das Mukim v. Chooni Lal Johurry ILR (1906) 33 C. 789

where the principle underlying the section has been explained and illustrated. So far as a suit is brought by a plaintiff in his individual capacity as a

trustee to enforce his individual claim to be such trustee, it does not lie within the scope of the section. Mr. T.M. Krishnaswami Aiyar, who

recognises that the authority of the Full Bench case is fatal to his position upon this point, contends that it has been superseded by the judgment of

the Privy Council in (1928) ILR 55 519 (Privy Council) , but I cannot find that that decision does more than set at rest the question of the

mandatory nature of the section, it being, decided further that Sub-section (2) does not extend the scope of Sub-section (1). A reference to the

arguments on behalf of the respondents in that case will show that it was conceded that a suit in respect of a private right, where no breach of trust

is alleged, may be maintained without the sanction of the Advocate-General.

Turning now to the Madras Religious Endowments Act, we have to see whether such a suit is barred by any of its provisions. The Act provides

for the institution of suits, or for reference to a Court, in a number of circumstances--see, for instance, sections 55 (4), 57, 63, 65 and 67--and

then ensues the more general Section 73. It is admitted that if the suit is barred it must be by the terms of this last section. It runs as follows:

(1) The Board or Committee having jurisdiction over any math or temple or any person having interest and having obtained the consent of the

Board may institute a suit in the Court to obtain a decree-

(a) appointing or removing the trustee of a math or excepted temple,

(b) vesting any property in a trustee,

(c) declaring what proportion of the endowed property or of the interest therein shall be allocated to any particular object of the endowment, or

(d) granting such further or other relief as the nature of the case may require.

(2) 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.

It will be seen that the first part of this section is modelled very closely upon Section 92 of the Civil Procedure Code, some of the reliefs which

may be sued for under the terms of Section 92 being reproduced verbatim while others are provided for elsewhere in the Act. It is not possible, I

think, to contend successfully that a class of suits to which Section 92 would not relate can be brought within the scope of this first part of Section

73; nor indeed does the plaintiff here ask for any of the reliefs which it contemplates. The argument addressed to us depends upon the construction

of the closing words of Sub-section (2), ""no suit in respect of such administration or management shall be instituted except as provided by this

Act."" Now in the first place it appears to me very doubtful whether a suit by a trustee to establish his hereditary right to his office is a suit in respect

of the administration or management of the religious endowment to which the trustee-"" ship appertains. It is a suit relating to a personal right, and

though upon its decision may depend the question whether or not the plaintiff continues in office as trustee, that question is not one arising out of the

administration of the trust, as for instance where a trustee is removed for breach of trust or mismanagement. The suit raises no issue as to the

manner in which the trust property has been administered or should in future be administered. From that point of view, too, it will not fall within the

terms of Section 92 of the Civil Procedure Code, a provision which was designed to deal with every aspect of the management of endowments.

As in Budree Das Mukim v. Chooni Lal Johurry ILR (1906) 33 C. 789, so here, no directions are necessary for the administration of the trust. In

dealing with the question whether a suit by hereditary muktesars for a declaration that certain persons were not properly appointed trustees fell

within the provisions of Section 92, it. was held by the Bombay High Court in Nilkanth Devrao v. Ramkrishna Vithal ILR (1921) 46 B. 101 that

the section did not apply because it provided only for two cases (l) either there must be an alleged breach of any express or constructive trust, or

(2) the direction of the Court must be deemed necessary for the administration of any such trust. This, I think, affords some authority for the view

that a suit of this character in not one in respect of the administration or management of the endowment. For this reason alone I do not think that

Sub-section (2) of Section 73 of the Act opposes any bar to the institution of a suit like the present.

Even assuming, however, that the qualification attached to such suits as the sub-section deals with is satisfied in the present case, a further

question arises as to the meaning of the phrase ""no suit .... shall be instituted except as provided by this Act."" Mr. T. M. Krishnaswami Aiyar

wishes us to read the phrase as meaning ""no suit shall be instituted unless it is provided for by this Act,"" so that, since there is no express provision

authorising such a suit, no such suit can lie. The alternative view offered is that the words mean no more than that ""no suit shall be instituted

contrary to the provisions of this Act"". At first sight the former construction may perhaps be thought the more natural meaning of the words, a

meaning which, except that ""provided for"" stands in the place of ""provided"" is to be attached to similar language in Section 404 of the Criminal

Procedure Code. I am not prepared to say that ""provided for"" and ''""provided"" convey exactly the same meaning. But the real difference to notice,

I think, is that Section 404 of the Criminal Procedure Code deals with the right of appeal and that right is created by the Code itself, whereas the

right of a trustee to sue existed prior to the Religious Endowments Act and can only be restricted, not created or extended, by its terms. It is a

well-accepted principle of construction that a provision of law should receive a strict interpretation when it is sought by it to oust the ordinary

jurisdiction of the Civil Court. (Ali Muhammad v. Hakim ILR (1928) 9 Lah. 504 and Leach v. Rex (1912) A.C. 305). In spite therefore of the

similarity of language I do not think that the meaning of Section 404 affords a safe guide in the present instance. It is then argued that on the view

that the words mean no more than that the Act must be examined to see if such a suit is barred the words are mere surplusage, which is no doubt

true; and that to construe them as the appellant desires would allow certain suits to be brought, as for instance, for a scheme, which had previously

been restricted by Section 92, Civil Procedure Code. The example given is a doubtful one, as it us arguable that by affording an alternative remedy

the Act impliedly bars such a suit. Per contra--if the section is read as the respondent proposes, the example of the present case is sufficient to

show that it would create an absolute bar to any suit for the establishment of personal rights of the greatest importance to the person affected, and

which have been perhaps in the enjoyment of his family for centuries. I am unable to believe that the drafters of the Act intended, not indeed to

qualify by conditions the ordinary right of resort to the Courts in such a case but to exclude it altogether. Therefore, I think that, if the language of

the section is open to two alternative constructions, it is permissible to select that one which avoids such a result. This may be done by applying to

the words ""except as provided by this Act"" the sense of ""contrary to the provisions of this Act,"" which, I think, they may well have been intended

to bear. This is the construction which has been placed upon them by Wallace, J., in Alagappu Chettiar v. Arunachallam Chetty (1926) 97 I.C.

The learned Subordinate Judge has referred to a decision of my own as adopting the opposite view. The observations in that case must be

read in the light of the circumstance that neither party contended for the position now assumed by the appellant; so that, it being granted that the

suit fell either u/s 73 of the Religious Endowments Act or u/s 92 of the Civil Procedure Code, the only question which I had to decide was under

which provision it would fall.

My conclusion accordingly is that the Court had jurisdiction to entertain the suit. As my learned brother agrees with me, we allow the appeal, set

aside the decree and remand the case for trial upon the further issues and disposal in due course: Costs would abide the result. The appellant will

be entitled to a refund of the Court-fee paid on the Memorandum of Appeal. Cornish, J.--I agree.