K.R. Swaminatha Aiyar and Another vs A. Ramier and Others

Charles Gordon Spencer, C.J.—The plaintiffs brought this suit for a declaration that they and the 1st defendant were the lawfully appointed

trustees of the temple of Sri Umamaheswaraswami in Thirumalam village of Mayavaram Taluk; and they prayed for a direction that the defendants

2 and 3 should be made to restore the office of trustee to them and for an injunction restraining them from interfering with the exercise by the

plaintiffs and 1st defendant of their duties as trustees. They valued the relief asked for at Rs. 5,500. The basis of their title was the order of the

Devasthanam Committee made in January, 1916, appointing the plaintiffs and 1st defendant as trustees. The 4th and 7th issues in the suit raised the

question as to the Devasthanam Committee''s jurisdiction and the rights of the plaintiffs derived from their order of appointment.

The lower Court, without deciding these important issues, dismissed the suit as not maintainable on the ground that the plaintiffs did not ask for

possession of the temple and its properties, quoting the authority of Rathnasabapathi Pillai and Others Vs. G. Ramasami Aiyar, . In my opinion, the

Subordinate Judge should not have dismissed the suit upon this preliminary point without trying the other issues. In Kunj Behari v. Keshavlal

Heralal ILR (1904) B 567, Sir Lawrence Jenkins, C.J., quotes Section 42 of the Specific Relief Act and points out that nothing is said about the

dismissing of a suit in the proviso which is in these terms : "" Provided that no Court shall make any such declaration where the plaintiff, being able

to seek further relief than a mere declaration of title, omits to do so."" In the present litigation the plaintiff is asserting his right to an office of trust. He

does not claim any proprietary interest in the temple. As I pointed out in the order of reference in Rajagopala Naidu Vs. Ramasubramania Aiyar

and Another, it would be preposterous that a trustee, claiming only a right to administer a certain trust, should be compelled to sue for physical

possession of all the trust properties against defendants who claim only a similar right of management and that he should be made to pay stamp

duty calculated on the total value of the endowments of the trust, which were in that case valued at two lakhs of rupees. In the case of temples,

owning very extensive and valuable lands, of which there are many in this Presidency, no one would undertake the duties of a public trustee if such

a burden were placed on him before entering his office. In the present instance the plaintiffs, while claiming the restoration of the office to

themselves and the 1st defendant, asserted in their plaint that the ownership of the temple was vested in the deity, that they had only a right of

managing the temple affairs, and that the temple lands were in the possession of tenants who would attorn to whomsoever might be declared to be

the lawful trustees. The 1st defendant set up the right of the villagers in contradistinction to the Devasthanam Committee''s right to manage this

temple. The 2nd and 3rd defendants denied the right of the Devasthanam Committee to interfere in the affairs of this temple, denied also that the

ownership of the temple vested in the deity, and set up a right of adverse possession as against the Devasthanam Committee. The lower Court

omitted to decide issue 5 which relates to the claim of the defendants that the Committee''s right, if any, had been lost by adverse possession. The

maintainability of the suit must depend upon the allegations in the plaint, and these allegations have not been disproved by evidence.

Rathnasabapathi Pillai and Others Vs. G. Ramasami Aiyar, relied on by the Subordinate Judge was a suit against the Devasthanam Committee by

a plaintiff claiming to be a trustee to recover damages for wrongful dismissal. In his plaint he mentioned that the defendants 8 and 9 had illegally

taken possession of the temple lands and leased out the fishery in the tank and collected rent. The plaintiff in that case having, for reasons best

known to himself, combined two actions in one, namely one action against the Temple Committee for the restoration of his trustee''s office and for

damages, and a second action for the recovery of the trust properties against persons who had wrongfully dispossessed him of such property, was

bound to ask for the relief of possession of the temple properties to which he asserted a present right of possession. On the allegations in the plaint

in that suit it may have been right to require the plaintiff to add a prayer for possession of the lands and if he refused to do so, his suit might have

been dismissed. But he was not bound to sue for possession of the lands before he was restored to office. If he had chosen to strike out from his

plaint his statement as to the part played by defendants 8 and 9, he might have waited till he was restored to his office of trustee, and he might then

have brought a separate suit on behalf of the trust to recover the trust properties which had been wrongfully alienated. The facts of the present case

closely resemble those in V. Rama Das and Others Vs. K. Hanumantha Row, . In that case also it was stated in the plaint that the temple

properties were in the possession of tenants who were ready to pay rent to whomsoever held the office of Dharmakartha, and the learned Judges,

adopting the reasoning of Sir Lawrence Jenkins in Kunj Behari v. Keshavlal Heralal ILR (1904) B 567, held that on the allegations in the plaint,

which had not been traversed, the suit was maintainable and that the proviso to Section 42 of the Specific Relief Act was no bar to its

maintainability. In my judgment, that case was rightly decided, although the difference between Rs. 10 and Rs. 2,600 in the plaintiff''s valuation to

the injunction does not really affect the question. I think that we should follow it, as it is in accordance with Kunj Behari v. Keshavlal Heralal ILR

(1904) B 567 which correctly expounds the effect of the proviso to Section 42 of the Specific Relief Act. The question whether this temple is

under the control of the Devasthanam Committee or belongs to the villagers will have to be decided, also whether the right of the Devasthanam

Committee has been lost on account of adverse possession by any of the defendants. Also it must be decided whether one or two trustees can act

alone if the appointment was of three trustees and one does not accept the office. The appeal is allowed. The order dismissing the suit is set aside

and the suit is remanded for trial on its merits. Costs of the appeal to be borne by the respondents (defendants 1 to 3). Costs in the lower Court to

abide and follow the result of the suit. Appellants are entitled to refund of Court-fee on this appeal.

Srinivasa Aiyangar, J.

I agree with the judgment of my Lord the Chief Justice. The question with regard to the maintainability of the suit as framed was tried originally

by the learned Subordinate Judge as a preliminary issue. For some reason not clear on the record, instead of coming to a decision on the issue, he

called upon the parties to proceed with the trial of the suit adducing evidence and ultimately, after the whole hearing was over, dismissed the suit on

the preliminary ground originally raised regarding the maintainability of the suit itself, holding that it was not maintainable.

When the question is whether a suit as framed is maintainable or not, what has to be looked to is the plaint and the plaint alone. Reading the

plaint in this case, it is clear that it is both in form and in substance a suit for the recovery of an office. The case of Rathnasabapathi Pillai and

Others Vs. G. Ramasami Aiyar, was relied upon by Mr. T. R. Ramachandra Aiyar, the learned Vakil for the respondents, as an authority for the

position that all suits for an office are suits for a declaration and that in all such suits, therefore, if the plaintiffs should be able to seek by way of

further relief possession of the property relating to the office and omit to do so, the suit would not be maintainable. It is possible, and perhaps also

easy, to frame a suit which is in substance one for an office as a suit in form only for a declaratory decree and injunction. If in such cases any

question should arise with regard to the frame of the action, it would necessarily follow that the suit may be looked upon merely as a suit for

declaration, and all the rules applicable to declaratory suits would also be applicable thereto. But a suit for an office is a well-known form of action,

and, from the earliest times all the Courts in this country, and their Lordships of the Judicial Committee, have frequently referred to such suits.

In the explanation to Section 9, Civil Procedure Code, the legislature itself has referred to a suit for an office as contradistinguished from a suit in

respect of property. Suits for property so called are themselves really suits only for the establishment of certain rights over property. An office,

though intangible, is something recognised by the law which attaches to the office certain rights and duties. In the case of Rathnasabapathi Pillai and

Others Vs. G. Ramasami Aiyar, , it is clear not only that the action was in form for a declaratory decree but that the question whether, though in

form the suit was for a declaration, it was not in substance a suit for an office does not appear to have been either argued or considered. The

learned Judges took the form of the action as they found it and laid down the law as applicable thereto. Though the decision is undoubtedly an

authority for the position that the plaintiff in a declaratory suit should also ask for possession if he is able to ask for such possession, it is scarcely an

authority for the proposition contended for that, when in form a suit is for an office, it ought to be deemed to be merely a suit for a declaration and

dealt with accordingly.

The real difficulty with regard to the whole question would appear to have arisen by certain observations of their Lordships in the case of V.

Rama Das and Others Vs. K. Hanumantha Row, .

The real ground of decision, as I understand it, of V. Rama Das and Others Vs. K. Hanumantha Row, is that when the suit is for an office, the

plaintiff need not ask for possession of properties relating to the office. But their Lordships in their anxiety to distinguish the case before them from

the case of Rathnasabapathi Pillai and Others Vs. G. Ramasami Aiyar, have referred to certain circumstances in the case before them. These were

that, in the case with which they were dealing, the injunction was valued at a substantial amount. It is difficult to see what the valuation of the relief

has to do with the frame of the action except as indicating that, as a suit for an office, it is capable of independent valuation by the plaintiff. The

second ground of distinction by the learned Judges referred to is that it was stated in the plaint before them that the temple properties were in the

possession of tenants who will pay the rents to whomsoever holds the office of Dharmakartha and that such statement was not traversed in the

written statement and should therefore be accepted as correct.

Their Lordships proceed to say that if, therefore, the plaintiff gets possession of the office of Dharmakartha, the tenants will pay the rents to him,

and the plaintiff will obtain possession to which he is entitled, that is, the right to collect rent. It is difficult to understand how the mere willingness of

the tenants to attorn to the rightful holder of the office can affect the question whether or not the plaintiff is able to ask for further relief by way of

possession. I do not understand their Lordships to have, signified that in such circumstances it would be impossible for the plaintiff to ask further

relief by way of possession or such possession as it is susceptible of.

The third ground of distinction relied upon was that, in the case of Rathnasabapathi Pillai and Others Vs. G. Ramasami Aiyar, , and the cases

relied on in that judgment, possession of the property may be said to have been adverse to the plaintiff and would have continued to be adverse

even after the plaintiff had obtained the declaration sued for.

It is very doubtful if such a ground of distinction is warranted by the terms of the proviso in Section 42 of the Specific Relief Act. But their

Lordships proceed further referring to the case of Kunj Behari Prasadji Purushotham Prasadji v. Keshavlal Heralal ILR (1904) B 567 and quote

with approval the observation of the Chief Justice, Sir Lawrence Jenkins, "" How would practical effect be given to an award of possession of an

office otherwise than by preventing interference with the rights of which it is made up ? "" Further on, the learned Judges observe as follows :"" The

lands attached to a temple do not belong to the Dharmakartha, who is merely the manager, but belong to the temple or idol, the Privy Council

having held that an idol may be regarded as a juridical person capable of holding property.

As I read and understand therefore the case in V. Rama Das and Others Vs. K. Hanumantha Row, the real principle underlying that decision is

based exactly on the considerations so clearly and forcibly set out by the present Officiating Chief Justice in his order of reference to a Full Bench

reported in the case of Rajagopala Naidu Vs. Ramasubramania Aiyar and Another, . Further, it is significant that, whereas the learned Judges that

decided the case of V. Rama Das and Others Vs. K. Hanumantha Row, approved of the case of Kunj Behari Prasadji Purushotham Prasadji v.

Keshavlal Heralal and Ors. ILR (1904) B 567, the learned Judges who decided the case of Rathnasabapathi Pillai and Others Vs. G. Ramasami

Aiyar, have disapproved of the same.

I therefore prefer to regard and follow the case of V. Rama Das and Others Vs. K. Hanumantha Row, as a direct authority for the position

that, in a suit for an office, no possession of the properties relating to the office need be asked.

I therefore respectfully agree to the order proposed.