(His Holiness Srila Sri) Vythilinga Pandara Sannadhi Avergal, Athinakarthar, of Tiruvaduthurai Athinam vs 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 Ambasamudrum Taluk of the Tinnevelly District, and for certain consequential reliefs. The plaint alleges that the Temple Committee,

defendant 1, in disregard of the plaintiff''s hereditary right as trustee, had held that he had vacated office u/s 51, Madras Hindu Religious

Endowments Act and had appointed defendant 2 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, Civil P.

C. It is true that in Subramania Pillai v. Krishnaswamy Somayajiar [1919]42Mad.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 A.I.R.1922Mad.17, in which it was

held that the class of suit 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 [1906]33 Cal.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. Krishnaswamy Ayyar, who recognizes 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authority of the Full Bench case is fatal to his position upon this point, contends that it has been superseded by the judgment of the Privy Council in

Abdur Rahim v. Mahomed Barkat Ali A.I.R.1928P.C.16, 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 mutt 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 mutt 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, Order 1, Schedule 1, Civil P. C., 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, Civil P. C, 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 suit 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 trusteeship 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, Civil P. C, a provision which was designed to deal with every aspect of the management of endowments. As in Budree Das

Mukim v. Chooni Lal Johurry, so here, no directions are necessary for the administration of the trust. In dealing with the question whether a suit by

hereditary muktessars 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. Ramakrishna Vithal AIR1923Bom.67 that the section did not apply because it provided

only for two cases : (1) 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 is not one in

respect of the administration or management of the endowment. For this reason alone I do not think that Sub-section (2), 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 subsection

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. Krishnaswamy Ayyar 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 authorizing 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, Criminal P. C. 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, Criminal P. C, deals with the right of appeal and that that right is created by the Code

itself, whereas the right of a trustee to sue existed 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 A.I.R.1928Lah.121 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 mere 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 P. C. The example given is a doubtful one, as it is 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 Alagappa Chettiar v. Arunachalam Chettiar A.I.R.l927Mad.338. 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, Religious Endowments Act, or u/s 92, Civil P. C, 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 concur.