Ponnuswamy Padayachi and Others vs Nallamuthu Padayachi and Others

(1) This criminal revision case involves a question of interest, upon the degree to which a Magistrate can proceed into the basis of a certificate by a

Deputy Commissioner in the Prescribed form u/s 101 of Madras Act 22 of 1959, setting forth the finding that the properly in question belonged to

the concerned religious institution, and directing delivery thereof to a petitioning party, by the party in possession. Incidentally, the entire question

involves a clarification of certain basic principles of law, which do appear to have been directly adverse to, in the few precedents that have been

cited at the Bar.

(2) Admittedly, Section 101 is a kind go summary procedure, whereby a person appointed as trustee, or to discharge functions of that character,

can summarily obtain possession of the alleged properties of the religious institution, from an obstructer, on the basis of a certificate issued by the

Commissioner. The implementation of the certificate is also provides for in the section, and the concerned trustee may apply to any Presidency

Magistrate or Magistrate of the first class of requisite jurisdiction, vitally to execute the certificate by directing delivery. Upon the nature of this

proceeding, there have been certain decision of this court, and it may be convenient to refer to them immediately before going further.

(3) In Shanmugham Archagar v. Munuswami, 1959 1 MLJ 144. Ramaswami J. had to deal with Section 87 (3) of the earlier Act XIX of 1951,

which is by concession of parallel provision of the prior enactment. After referring to several precedents, the learned Judge observed that the

Magistrate giving effect to the certificate was in the position of an executing court, and could not go behind the order or certificate issued by the

Commissioner. He has no power to entertain any objection to the validity, legality or correctness of the order. The only remedy of the aggrieved

party is to file a suit, as specifically provided for by means of the last proviso to Section 87. In that particular case, the learned Judge held that a

plea to the effect that the temple was a private temple could not be raised or entertained before the magistrate, after the Commissioner had issued

the certificate.

(4) In In Re: S.R.M.S. Chidambaram Chettiar, , the learned Judge again observed that proceedings for delivery u/s 87 were in the nature of

execution proceedings, and that the executing court, here the Magistrate, had no jurisdiction to question the correctness, legality or propriety of the

decree.

(5) In Rathinasamy Moopanar and Another Vs. Subramania Udayar and Others, , Kumhamed Kutti J. referred to the provisions of Section 101

and following 1959 MLJ 144, pointed out that the magistrate, executing the certificate or implementing it in an application u/s 101 for delivery, was

in the position of an executing court. He cannot entertain any objection to the validity, legality or correctness of the order.

(5-A) In Abboyi v. Suranna 19612 AW. R. 140 a learned Judge of the Andhra Pradesh High Court has made certain observations on the same

lines, and laid it down that a certificate issued by the Commissioner was of the nature of a decree for possession, and that the Magistrate is bound

by this. Ramakrishnan J. appears to have followed this line of reasoning in a recent case (Crl R. C. 1776 of 1964)(Cri. R. P. 1747 of 1964)(Mad)

which has not been fully reported so far.

(6) In Subbarayalu Mudilar v. Nachimuthu 1965 1 Mad LJ 359 Kailasam J. pointed out that if there was a person claiming possession of the

temple or properties in his own right, independently of any trusteeship he will be excluded from the purview of the section, on the very language

used. But a person who is entitled to administer as a trustee and is liable as such, will be bound by Section 101.

(7) But, though the general situation at law may thus be regarded as well settled, it clearly needs the addition of a refinement in one important

respect. Even the dictum that the executing court cannot go behind the decree that it is asked to execute, is neither without exception nor absolute.

I think it is sufficient to refer, in this context to the Full Bench decision in Mohan Ram and Others Vs. T.L. Sundararamier and Others, to which I

was a party. The Full Bench held that the power of an executing court to go behind the decree, before it is opposed to public or it offends a

statutory prohibition, is upon another plane altogether. The Court can go behind the decree in such an instance.

(8) A very brief reference to the facts of the present case, will be necessary, to elucidate the particular principle that is in issue. As will be seen

from a glance at Section 101, it is not every person who may be in possession of the properties of a religious endowment, against whom a

proceeding can be taken under this provision of law. On the contrary, the provision is explicitly restricted to a person in possession who is a

trustee, office-holder or servant of the religious institution, or one who has been dismissed or suspended from such office, or any person claiming

or deriving title from such trustee, officer-holder or servant. This is a positive limitation. Nor merely this. There is also a negative limitation in that a

person who could claim in good faith to be in possession on his own account, or on account of some person not being such a trustee, office holder

or servant, is definitely excluded. it is clearly not enough that there is a finding that the properly belongs to the religious endowment in question. The

Commissioner, or Deputy Commissioner, must find that the person from whom delivery is sought comes within the terms of Section 101. If there is

no such finding, the order is null and void, in the sense that it lacks one essential decision or finding that alone makes it capable of implementation

before a magistrate. It will be like a decree that deals with property situate in another country, or which deals with some property or right in a

manner that is prohibited by law, and thus goes to the roof of the jurisdiction of the court which passed the decree. As I noted earlier, the principle

that an executing court cannot go behind the decree will hold good where the decree ex facie cannot be executed by the court, and is opposed to

law, or so defective as to be incapable of implementation.

(9) Apart from the Full Bench decision that I have already referred to, we have the decision of Ramaswami Gounder J, in A.V. Subbu Chetty Vs.

C.V. Munuswamy Chetty and Another, which has not been dissented from to my knowledge, and which rightly lays down, if I may say so with

respect, that the person in possession must be found by the Commissioner to be a person against whom an order can be made u/s 101. Otherwise,

treating the certificate as a decree, it will be void because even, on the face of it, it is essentially defective in the sense that it does not find that the

party against whom it purports to made comes within the scope of Section 101 of the Act. It is indisputable, I think for instance, that an order u/s

101 cannot be made against a trespasser, when claims to have perfected title to the property in his

possession against the religious institutions, by adverse possession.

(10) On the facts of the present cases, it is clear enough that the respondents claim to be in possession of these lands in their own right, quite

independently of the temple, denying that they were lessees of the temple as alleged, and further claiming that their right to the lands was based

upon ancestral enjoyment in the context of a different private temple, though the deity thereof was the same deity as regards

nomenclature(Mariamman). The Deputy Commissioner has found, on the evidence, that the present properties are lands of the suit religious

institution. So far, his finding must be respected, and the magistrate cannot go behind it. however, erroneous the magistrate may think it to be. But

the Deputy Commissioner has not found, and I can discover not a trace of such a conclusion in the annexure to his order, that the respondents, or

any of them, fall within any category of persons against whom an order could be obtained under S. 101. He has not even applied his mind to this

aspect, when the respondents explicitly claimed that, in good faith, they were entitled to possession of the properties independently of the religious

institution and adversely to it. In other words, this is practically tantamount to a decree in which there is a basic defect which prevents its

implementation, such as absence of the name of the party against whom the decree is passed. Further, the defect is not in the certificate, but in the

judgment or order giving reasons, so that the defect cannot be cured by any mere verbal amendment.

(11) Under these circumstances, I think that the learned Magistrate was perfectly correct in coming to the conclusion, which is virtually what he has

done, that he could not implement the certificate and that he had necessarily to dismiss the application u/s 101. The revision proceeding is

dismissed; of course, it is perfectly open to the revision petitioners to apply again to the Commissioner for a certificate u/s 101, when, no doubt,

the respondents will make their appearance, and the entire question will be gone into, on the merits, whether the respondents fall within any of the

categories of persons described in Section 101 against whom a valid order for delivery could be made No order as to costs.

(12) Revision dismissed.