Nellaiyappa Pillai vs Thangama Nachiyar and Others

In our opinion, the Subordinate Judge has overlooked the circumstance that the plaintiff in this case was the general trustee of the temple and as

such held a special position in regard to the protection of its interests. In that character, it was not only his right but his duty to see that the temple

funds in the hands of special trustees were duly appropriated (Jeyangarulavaru v. Sri Hati Durma Dossji, 4 M. H. C. R. 4. And even before the

enactment in 1877 of the provision now embodied in Section 539, Civil Procedure Code, he would have been entitled to resort to the ordinary

courts to enforce the obligations of the special trustees and to obtain all appropriate relief for the protection of the interests of the temple. He would

have been entitled to have sued for the removal of such trustees for malversation, and if there was no other provision for filling up the vacancy, he

could have asked the Court to appoint fresh trustees. We do not think that such right was intended to be affected by Section 539, Civil Procedure

Code. If that Section were held to apply to the case of a person in the position of the present plaintiff, the rights which he had prior to the

enactment would be seriously restricted, inasmuch as the exercise of his rights would be made dependant on the sanction of the Advocate-General

or Collector as the case might be. It is difficult to believe that special rights of the character in question were intended to be so restricted. We agree

with the learned Advocate-General that the suit was intended to apply to persons who before its enactment had, or were believed to have, no right

to take proceedings for the purposes mentioned in the Section, and in their case the limitation requiring previous sanction for the suit was one that

was necessary to prevent an abuse of the powers conferred.

We have not thought it necessary to refer to the decision of the High Courts in other parts of India as they proceed on a view which has not

been accepted by the Full Bench decision of this Court reported in Rangasami Naickan v. Varadappa, Naickan, I.L.R., 17 M. 465. Our view is in

accordance with the principal in Srinivasa Ayyangar v. Srinivasa Swami, I.L.R., 16 M. 31 and the unreported cases therein cited.

We, therefore, set aside the order of the Sub-Judge and direct that the plaint be received by him and that the suit be then disposed of in

accordance with law. Costs to abide and follow the result.