Kumara Alagu Samayya Naicker vs Madras Hindu Religious Endowments Board and Others

Burn, J.—This is a petition to revise the order of the learned District Judge of Trichinopoly in C.P. No. 34 of 1934. That was an application

by the present appellant u/s 84(2), Madras Hindu Religious Endowments Act 2 of 1927, praying the learned Judge to set aside the order of the

Religious Endowments Board dated 6th December 1933 declaring the temple of Sri Kalyana Narasimhaswami at Ramagiri, Karur Taluk, to be a

non-excepted temple. The learned District Judge held that the temple was a non-excepted temple and accordingly dismissed the petition. The

learned Counsel for the petitioner has drawn my attention to the definition of ""excepted temple"" in Section 9(5) of the Act, That is as follows :

''Excepted temple'' means and includes a temple, the right of succession to the office of trustee or the officers of all the trustees (where there are

more trustees than one) whereof has been hereditary or the succession to the trusteeship whereof has been specially provided for by the founder.

It is obvious from this definition that there can be two grounds upon which a temple may be found to be an excepted temple. The first category

is temples in which the right of succession to the office of trustee is hereditary. The second category consists of temples the succession to the

trusteeship whereof has been specially provided for by the founder. The learned District Judge in his order has considered only the first category

and not the second. He has found on the admission of the appellant himself that succession to the office of trustee in the temple has not been in

practice hereditary for at least 70 years. The learned District Judge has held that therefore the temple cannot be considered to be an excepted

temple. The learned Counsel for the petitioner contends that on the evidence produced before the learned District Judge, he would be able to

show that the succession to the trusteeship of the temple was specially provided for by the founder. The learned District Judge has not adverted to

this part of the definition and his omission to do so will justify interference in revision u/s 115, Civil P. C.

The learned Counsel for the Religious Endowments Board is not able to argue that the learned District Judge did deal with the second part of

the definition of ""excepted temple''. It has been held by Varadachariar J. in Krishnamurthi v. Madras Hindu Religious Endowments Board (1935)

22 AIR Mad 921 that the expression ""has been hereditary"" in Sub-section (5) of Section 9 must be construed as meaning ""has been and continues

to be hereditary"". The learned Counsel for respondent 2, the trustee appointed by the Religious Endowments Board, contends that the same

interpretation must be put upon the words ""the succession to the trusteeship whereof has been specially provided for by the founder"". This

contention I think cannot be accepted. The provision for the succession to the trusteeship of an institution like this which is made by the founder of

it is something which is done once for all at or about the time of the foundation. It would be a misuse of language to say that these words in Sub-

section (5) imply that the provision made by the founder must continue to be in force at the time of the petition u/s 84. The learned Counsel for

respondent 2 contends that there was no evidence before the learned District Judge upon which he could have found that the succession to the

trusteeship of this temple had boon specially provided for by the founder. That is a question into which I am not prepared to go for the simple

reason that it has not been considered by the learned District Judge.

For this these reasons, the order of the learned District Judge is set aside and the petition is ordered to be restored to file and disposed of

according to law upon the evidence already recorded by and produced before the learned District Judge. The costs of this petition will aside the

result and will be provided for in the decree of the District Court.