Parankusam Rangacharyulu and Others vs Pernamitta Venkatanarasimhayya, Trustee of Sri Chenna Kesavaswami Temple including the Shrine Sri Ranganadhaswami and Others

Satyanarayana Rao, J.—These Civil Revision Petitions were preferred against the orders of the learned District Judge of Guntur (except C

R.P. No. 1676 of 1947, in which the order was passed by the District Judge of Kistna) passed u/s 78 of the Madras Hindu Religious Endowments

Act of 1926 (Act II of 1327) as amended by the Madras Hindu Religious Endowments (Amendment) Act of 1946 (Act X of 1946). As these

revision petitions raised important questions of law regarding the interpretation of Section 78 of the Act as amended in 1946, my learned brother,

Panchapagesa Sastri, J., referred them to a Bench, and they are now before us.

Nine applications were filed in the lower Court u/s 78 by the trustees appointed either by the Board or by the Assistant Commissioner having

jurisdiction for delivery of possession of Immovable properties in the possession of the archakas who were the respondents in the petitions in the

Court below and are the petitioners before us. The properties in question have been in continuous possession of the archakas for a considerably

long period, and the claim by them was that the lands In dispute were granted to their predecessors in title burdened with service to the temples

concerned while the trustees contended that they belonged to the temples. Besides this question of title to the property, there were other objections

raised regarding maintainability of the petitions. The Court below overruled the contentions of the archakas and directed delivery of possession of

the properties.

In these revision petitions we are not concerned with the merits of the claim put forward by the archakas but are mainly concerned with the

objections regarding the maintainability of the petitions. The finding of the learned District Judge on the question of title was not canvassed before

us, and therefore it is not necessary to deal with it. If the petitions are otherwise maintainable, the trustees would be entitled to recover possession

of the property, as the finding of the learned District Judge on the question of title to the property stands unchallenged.

The amended Section 78 requires, in case where the application is for possession of property, a certificate by the Board in such manner as may

be prescribed. By the time these applications were disposed of, the Provincial Government under their rule-making power conferred upon them u/s

71 did not prescribe the rules governing the issue of such certificates; nor did they prescribe the form of the certificate. The trustees therefore

obtained a certificate from the Board stating that the property in question belonged to the temple. One of the questions raised in the Court below

and repeated before us was that this certificate does not fulfil the requirement of Section 78 as amended and that therefore the order for delivery

made by the learned District Judge was incompetent. On behalf of the archakas it was also contended that the claim put forward by the trustees

regarding the title to the property could not be tried in a summary proceeding u/s 78 of the Act and that such a dispute was entirely outside the

purview of the section, particularly in view of the alterations made in that section by the amending Act X of 1946. In C.R.P. No. 1341 of 1946, a

further point was also raised by the trustee that the application in that case was filed in the lower Court on 6th February, 1946, before the

amendment came into force on 2nd April, 1946. It was therefore urged on behalf of the trustees that so far as this petition was concerned it was

still governed by the procedure laid down by the unamended section and was not governed by the new section introduced by Act X of 1946. This

contention will be dealt with separately.

Before dealing with the arguments urged before us on the three questions stated above, in order to better appreciate the contentions, it is

necessary to set out the history of Section 78. In the Act that was originally passed in 1926 (Act II of 1927) the section ran as follows:

Where a committee has appointed a person as non-hereditary trustee of a temple or where a Board or committee has appointed a person to

discharge the functions of a hereditary trustee and such person is resisted in, or prevented from, obtaining possession of the math or temple or of

the endowments connected therewith, the Court may, on application by the person so appointed and on production of the order of the Board or

committee appointing him, order the delivery to any person the possession of such property as may be specified therein.

By the amending Act of 1930 (Madras Act IV of 1930) the first part of the section was amended so. as to confer the benefit of the provisions of

the section also upon, non-hereditary trustees appointed by the Board by substituting the following.

Where a person has been appointed as trustee of a math or temple or a religious endowment connected therewith or has been appointed to

discharge the functions of a trustee by the committee or the Board, in accordance with the provisions of this Act and such person is resisted in....

The rest of the section was not altered. This section, it may be seen, did not specify the persons against whom the application could be maintained

except stating generally that it was available against persons resisting or preventing delivery of possession of the math, temple or religious

endowment or the properties belonging to them, etc. The section also gave a discretion to the Court to direct or not direct delivery of possession.

The applicant was required under this section to produce only the order of appointment.

The scope of the section was the subject-matter of conflicting decisions by single Judges of this Court on the question whether the Court had

jurisdiction in an application under the section to enquire into and adjudicate upon the claims, of third persons. In Katamreddi Ramireddi Vs.

(Paderala) Sreeramulu Reddi and Others, . Pandalai, J., was of opinion that the Court possessed such jurisdiction. In that case an application u/s

78 was made by the non-hereditary trustees of the temple against certain lessees from the archakas of lands belonging to the temple. There was an

arrangement between the archakas and the trustees regarding the remuneration for the service of the archakas, and the archakas under that

arrangement which was reduced to writing. consented to the temple taking possession of the properties from the lessees. The lessees resisted the

application on the ground that the Court had no jurisdiction to decide the question whether the property belonged to the temple or to the archakas.

The District Judge while referring to the notes on the clauses of the Bill which ultimately became the Act thought that the intention of the Legislature

in enacting the section was to direct delivery of possession only in cases where the property was admitted to be the property of the temple, and

that the Court had no jurisdiction to adjudicate upon the claims of third parties holding adversely to the temple or the trust. This was pointed out by

the learned Judge in revision as erroneous, as it was not permissible in interpreting the section to refer to the objects and reasons, and that the

language of the section alone should be considered. As the section did not confine the application against ex-trustees, or temple servants or other

refractory persons connected with the administration of the temple who resisted delivery of possession, the learned Judge was of opinion that there

was no room to restrict its operation to any particular class of persons or claims. If the Legislature intended to so confine it, the learned Judge

pointed out, that the words in the section should have been

from any person who is not holding the same under any title or claim adversely to the institution.

There was no such language, and as the Act did not limit its operation as did the English Charitable Trusts Act of 1853 by Section 41 there was no

room to accept the contention that a dispute between a temple and a third party bona fide claiming to be in possession of the property was not

within the purview of that section. He however dismissed the petition ultimately on the ground that as the learned District Judge refused to exercise

the discretion vested in him even if he had power to go into the question of title, there was no ground for interfering with such an order of the

learned District Judge u/s 115, Civil Procedure Code.

Shortly thereafter Ramesam, J., had to consider the same question in Subramaniam v. Subbayi (1933) M.W.N. 934. The learned Judge differed

from the view of Pandalai, J., and according to him, Section 78 was intended to apply only to admitted endowments and it was intended by that

section that the District Court should enquire into questions of title. He however did not rest his decision on this sole ground but also on, the ground

that the Court was within its jurisdiction in refusing to go into the question of title in the exercise of its discretion and that therefore the order of the

District Judge could not be interfered with in revision. Patanjali Sastri, J., followed the view of Ramesam, J., in C. R. P. No. 1004 of 1937 (52

L.W. 7, short notes). In Nagati Yedukondalu and Another Vs. Pedaprolu Suryanarayana Rao and Another, . Horwill, J., preferred to follow the

opinion-of Pandalai, J., as against the opinion of Ramesam and Patanjali Sastri, JJ., in the cases above referred to. According to the learned Judge,

if a Court is empowered to hand over temple property to the trustees it must be deemed to have also the power to decide whether the property is

temple property. His view therefore is, if once the jurisdiction to deliver was conferred upon the Court, as an incident to that jurisdiction and as

ancillary to it, it should possess also the power to go into the question whether the property of which delivery was sought for was or was not the

property of the temple. Happell, J., in Adiraja Arasarada Kinnyakka Ballah Vs. Badeltu Naranappayya and Others, stated as his opinion that an

application for delivery u/s 78 was in the nature of an application for execution, and therefore it was not open to a person who was a party to it to

question the order of appointment of the trustee who made the application. With respect to the learned Judge, it is difficult to see in what sense an

application u/s 78 is in the nature of an application for execution. Which is the decree that is sought to be executed in such a proceeding ? If there

was a prior order of the Board between the parties holding that the property belonged to the temple or the trust and that order was sought to be

enforced u/s 78 it may with considerable force be contended that the application u/s 78 really purports to execute or enforce an order passed by

the Board. See for example the decision in (1896) L.R. 23 I.A. 45 (Privy Council) where a certificate issued by the Collector specifying the sum of

arrears of revenue due and the person from whom it was due was treated by reason of the language of Section 7 of the Bengal Act VII of 1880

(Public Demands Recovery Act) as having the effect of a decree and that proceedings in pursuance thereof were in the nature of execution

proceedings.

In this state of the law the Legislature amended Section 78 in important respects. The application is now confined to relief against a trustee,

office-holder, or a servant of a math, temple or specific endowment who has been dismissed or suspended or is otherwise not entitled to be in

possession, meaning thereby disqualified to hold or continue to be in possession. Section 54 of the Act sets out the grounds of disqualification

which disentitle a non-hereditary trustee to hold the office. Possession can also be claimed against persons claiming or deriving title from such a.

trustee, office-holder or servant. This restriction, it may be noted, meets the argument of Pandalai, J., in Katamreddi Ramireddi Vs. (Paderala)

Sreeramulu Reddi and Others, and narrows down the scope of the section. The claim of a person in possession in good faith, on his own account

or on account of a third person who was not such a trustee, officeholder, or servant is excluded from the ambit of the section. The claims therefore

of third persons claiming bona fide to be in possession of the property claimed as belonging to the trust cannot be now enquired into in an

application u/s 78. The discretion vested in the Court under the old section to make or not to make an order for delivery is taken away, and the

Court is bound to make an order for delivery if the conditions of the section are satisfied. The word "" shall "" was substituted for "" may."" This is a

very important change. In addition to the production of the order of appointment, the trustee if he claims possession of the property is also bound

to produce a certificate by the Board in such manner as may be prescribed setting forth that the property in question belongs to the math, temple or

specific endowment concerned and of which delivery is sought for in the application.

These important alterations lead to the inference that the intention of the Legislature in enacting the section is to confine it only to admitted trust

properties as held by Ramesam, J., in the case referred to. The dismissed or suspended trustee or trustee disqualified u/s 54 would generally be the

person who either prepared the register contemplated by Section 38 of the Act in which the property of the temple or math was specified or must

at least be a person who was a party to the annual verification of the register u/s 39. The Board in issuing the certificate can only act on the

information available with it, namely, the register maintained and brought up to date from time to time under Sections 38 and 39. Under the

amended Section 57, the Board now is also given power to determine the properties of the temple in case where a scheme is framed. The rights of

third parties are however saved under the proviso to Section 57, Clause 3(a). A similar provision was also enacted in the case of Maths in Section

A trustee or officer or servant obtains possession of the property when he assumes office from the previous trustee, and he would therefore be

precluded from disputing the title of the trust to the property. There may be cases where though the trustees, etc., are not persons who entered into

possession for the first time were at least persons who admitted or acquiesced in treating the property in their possession as property which they

were holding on behalf of and for the benefit. of the trust. The requirement regarding the certificate of property is intended to furnish to the Court

proof that such properties are admitted trust properties. From this the inference is irresistible that the section as amended is confined only to

properties in respect of which there could possibly be no dispute regarding title and is intended to provide a summary procedure to recover back

possession of the property from a person who obtained possession on behalf of the trust and was holding it as such and who was refractory

enough in not delivering possession to the lawful trustee entitled to obtain and hold it. The claims of third persons are expressly excluded, which is

also an indication in support of this conclusion. The section therefore is restricted both as regards the persons and as regards the properties. The

fact that no appeal is provided for against orders under this section is also a further indication that disputed questions of title should not be tried in

an application under the section.

The archakas in this case have been in possession of these properties for over a century, and they have always been contending that the

property belonged to them and not to the deity, though they were bound to render certain services to the temple. The determination of this question

mostly depends upon documentary evidence and the interpretation of grants or the imam proceedings relating to the property. The archakas cannot

be said to be persons who either admitted the property to be trust property or at any rate admitted to be in possession of those properties holding

on behalf of and for the benefit of the trust. For these reasons the claim put forward by the archakas, in our opinion, cannot be disposed of in these

applications and the order of the learned District Judge in these petitions deciding that question is without jurisdiction and has to be set aside.

The applications u/s 78 also did not satisfy the requirement of that section regarding the production of the certificate by the Board in the

manner as may be prescribed setting forth that the property in question belonged to the math or the temple as the case may be. The word

prescribed "" is defined in Section 9(10) as meaning "" prescribed by the Provincial Government by rules made under this Act."" The rule-making

power of the Provincial Government is contained in Section 71. By the date of the presentation of this application in the lower Court the

Government did not frame rules and did not prescribe the form of the certificate to be issued by the Board. It was only on the 28th June, 1948,

that they prescribed the form of the certificate u/s 78 by G. O. M. S. No. 393, Firka Development, 28th June, 1948, published in the Fort St.

George Gazette, dated 13th July, 1948. On the dates therefore of filing the applications and of passing the orders for delivery the form of the

certificate was not prescribed by the Provincial Government. The Board therefore issued a certificate in a form prescribed by themselves, and it

was contended on behalf of the trustees that this was a sufficient compliance with the procedure laid down by the section. The Board has no

power of issuing a certificate by itself either under this section or any other provision of the Act. The power is to issue a certificate in the manner as

may be prescribed and not the power to issue a certificate, the form of which may or may not be prescribed by the Government. The non-exercise

of the power of prescribing the form by the Provincial Government would not confer such power upon the Board as was contended on behalf of

the respondent?. The Board has no rule-making power and cannot prescribe the form. No hardship is caused by the delay on the part of the

Provincial Government in framing the rules, as it is open to the trustees to recover possession by suit instead of an application u/s 78.

For the position that if the Government delayed in prescribing the form, the Board acquired that power, reliance was placed upon the decision

of this Court in The Madras and Southern Maharatta Railway Company Limited Vs. The Municipal Council, Bezwada, affirmed by the Privy

Council in M. & S. M. Railway Co., Ltd. v. Municipal Council, Bezwada (1944) 2 M.L.J. 25 : L.R. 71 IndAp 113 : (1945) ILR Mad 1 (P.C.).

From the facts of that decision it would be noticed that the municipality had power to levy the property tax under Sections 81(3) and 82(2) of the

Madras District Municipalities Act. The proviso to Section 81(3) laid down:

Provided that such percentages or rates shall not exceed the maxima, if any, fixed by the local Government and that the capital value of such lands

shall be fixed in such manner as may be prescribed.

The local Government in that case did not frame rules for determining; the capital value of lands. The municipality therefore arrived at the capital

value in a manner which suited them and levied the assessment. It was held that the fact that the Government did not frame rules prescribing the

manner of arriving at the capital value did not preclude or prevent the municipality from assessing property tax on the capital value basis arrived at

by it. Dealing with this point at page 921 in The Madras and Southern Maharatta Railway Company Limited Vs. The Municipal Council,

Bezwada, Somayya, J., observes:

Even otherwise, the omission of the rule-making authority to frame rules cannot take away the right of the municipal council to levy tax at the rate

mentioned in the notification issued under Clause 3 (of Section 81). If, for instance, the local Government refrained from prescribing the manner in

which the value of such lands should be determined, it cannot, we think, be said that the municipal council has no power at all to levy the tax at a

percentage of the capital value merely because the method of determining the capital value has not been prescribed by the local Government. If the

local Government does not prescribe it, then the municipal authority is free in our opinion to fix it in any manner ''chooses. We have not been

referred to any decision on this point except that of the Judicial Committee in Wigg v. Attorney-General for the Irish Free State (1927) A.C. 674

but it is doubtful how far that decision applies to the circumstances of this case. We therefore do not propose to rely upon that decision.... We

think it is not correct to say that the omission by the local Government to prescribe the manner in which the capital value is to be determined

deprives the municipal council of the power of levying the tax on the capital value basis.

That view was approved by the Privy Council. Of course, in the present case if the Board had otherwise the power to issue a certificate like the

power of the municipality in that case to levy the tax, the fact that the Government delayed in prescribing the form or failed to prescribe the form at

all would not have affected the power of the Board to issue a certificate, As the power does not exist apart from the power given u/s 78 which is

confined to the power to issue a certificate in the manner as may be prescribed, we think the certificate issued by the Board is not sufficient

compliance with the requirement of the section.

It is urged that the provision with reference to the production of the certificate is only directory and not mandatory. We do not agree with this

contention either, as the section requires that the order for delivery shall be made only on an application by the person and on the production of the

order of appointment and of a certificate and not otherwise. If the language of the section is clear and the production of the certificate is essential, it

is not open to us to condone it, however formal the requirement may be. We do not however intend to say that the certificate was merely a formal

requirement as, in our opinion, it is intended to furnish proof of the properties which admittedly belonged to the trust, and Courts have always

insisted upon the fulfillment of the conditions laid down by a section, however formal those conditions may be. In Maxwell''s Interpretation of

Statutes, 9th edition, at page 9, instances which are extreme in nature are cited. The learned author states:

If an Act provides that orders for committal must be made in '' open court'', an order made, not in the Court, but in another part of the building

which is also open to the public, will be invalid. The Bills of Sale Act, 1878 (c. 31), requiring an affidavit of the due attestation as well as of the

execution of the deed, the omission in the former to mention the attestation was held fatal, although the attestation clause of the deed asserted it. It

would not be open to the interpreter, in such cases, to shut his eyes to the formalities required, or because he deemed them unimportant, or

because a hardship or failure of justice might result, in the particular case before him, from a neglect of any of them.

In these circumstances we think the learned District Judge was not justified in ordering delivery merely on the production of a certificate issued in a

form prescribed. by the Board.

In C.R.P. No. 1341 of 1946, a contention was raised that as the application, was filed before the amendment of the section, and as the

amendment came into force during the pendency of the application it was governed only by Section 78. as it stood before the amendment and not

by the amended section. The accepted canon of interpretation of statutes is that the operation of a provision in an. Act is, prospective and not

retrospective, unless it is expressly so stated or is necessarily intended. An exception to this rule are the provisions relating to the procedure which

are always treated as retrospective and were applied to actions pending as well as future. A right of appeal however is not a matter of procedure

and is a substantive right. Though a person has no vested right in a procedure his right of appeal is always treated as a vested right. See Colonial

Sugar Refining Co. v. Inning (1905) A.C. 369. Maxwell''s latest edition at page 232 and Craies on Statute Law, pages 337 and 338. The learned

Counsel for the respondents contended that a vested right in the nature of a right of appeal was affected by the alterations in Section 78, and that

he should not be deprived of the benefit of the old Section 78. Reliance was placed, by him in support of his contention on two decisions in

Vasudeva Samiar, In re (1928) 56 M.L.J. 369 : ILR 52 Mad. 361 and Nagendra Nath Bose Vs. Mon Mohan Singha Roy and Others, . In both

these cases the right in dispute was a right of appeal, and it was held that after the suit was instituted any subsequent enactment could not alter or

affect the right of appeal acquired under the existing law. That, however, is not the question before us. As part of the procedure, besides the order

of appointment the section now requires that a certificate from the Board also should be produced showing the property of which possession is

claimed and the requirement of the section is more in the nature of procedure rather than of a right. In Kimbray v. Draper (1868) 3 Q.B. 160 the

Court had to consider the question whether the provision u/s 10 of the County Courts Act, 1867, requiring the plaintiff to give security for costs in

an action for tort was retrospective or not. The provision, it may be noted, did not take away any existing right but only added a further''

requirement regarding the procedure in insisting upon security for costs. It was held that it was merely a matter of procedure and that it applied also

to an action which was then pending and also to future actions. There are also other instances which have been cited in Maxwell''s Interpretation of

Statutes at pages 233 and 234. The decision in S. Girdharilal Son and Co. Vs. B. Kappini Gowder and Others, contains a full discussion of the

relevant authorities dealing with this matter. There is a distinction however between a remedy in the sense of action or right of action and rules of

procedure incidental to the working of that remedy. An exception is recognised even to the rule that rules of procedure are retrospective when the

effect of applying the rule would be to destroy any vested right and retrospective operation is not given in such case unless the Statute expressly

stated so. (See Ramakrishna Chetti v. Subbaraya Iyer (1912) 24 M.L.J. 54 : ILR 38 Mad.101.) In the present case the form of certificate was not

prescribed by the Provincial Government during all the period when the petition was pending in the lower Court. It was, therefore, impossible for

the petitioners to comply with the requirement of producing the certificate as required by the amended Section 78. If the amended section should

apply the result would be that the existing right to recover possession of the properties u/s 78 as it stood before the amendment would be

completely taken away and destroyed. In these circumstances the rule in Ramakrishna Chetti''s case (1912) 24 M.L.J. 54 : ILR 38 Mad. 101.

should in our opinion apply. We hold accordingly that the unamended Section 78 only would be applicable and in that view, C. R. P. No. 1341 of

1946 should be dismissed with costs. The other revision petitions are allowed. The orders of the learned Judge in these cases are set aside and the

petitions u/s 78 are dismissed with costs here and in the Court below.