Sankaranarayana Pillai vs Ramaswami Pillai and Others

(1) The petition is filed against the order passed by the District Magistrate, Kanyakumari, directing the petitioner herein to deliver possession of the

temple and their records to the respondents.

(2) The respondents are trustees appointed by the Area Committee on 15-6-1963, for Adhimoolavinayagar and Chinthamarai Amman temple at

Umapangoseri in Nagarcoil. The petitioner was removed from the trusteeship and directed to hand over possession of the said temples and

accounts to the respondents. The petition having failed to do so, the respondents filed an application under S. 101 sub-clauses 1 (a) and (b) of the

Madras Hindu Religious and Charitable Endowments Act for delivery of possession. The application was dismissed by the District Magistrate on

20-8-1963 on the ground that the order of appointment passed by the Area Committee was not in conformity with the provisions of the Act.

After rectification of the defects in the appointment of trustees, they again moved the District Magistrate''s Court by an application dated 24-9-

1963, for an order under S. 101 of the Act for possession of the temples, their records and accounts. The petitioner filed a civil suit, O. S. 537 of

1963, in the District Munsif Court, Nagarcoil, against the respondents for a declaration that the petitioner is entitled to be in possession of the

religious institutions and properties as lawful trustee, and for an injunction restraining the respondents form molesting the possession of the

petitioner, of the institution and properties. In the suit, the petitioner obtained an interim injunction, on 14-10-1963, against the respondents from in

any way interfering with possession of the petitioner. When the order of injunction was pending against the respondents, the order, which is sought

to be revised was passed by the District Magistrate on 14-11-1963, directing delivery of possession by the petitioner to the respondents.

(3) Mr. Martin, learned counsel for the petitioner, submitted that the order passed by the District Magistrate under S. 101 of the Act, when an

interim injunction was in force against the respondents is unsustainable. He submitted that the proceeding under the section is only summary,

subject to he decision of civil court.

(4) Mr. Rajagopalachari, learned counsel for the respondents, submitted that the right of suit provided for an aggrieved party under the proviso to

S. 101 is only for establishing title to the property, and that the aggrieved party has no right to question an order directing delivery of a religious

institution. He pointed out the difference that is made in the procedure prescribed for obtaining possession of an institution, and the property. In the

case of an institution the duly appointed trustee, can obtain possession of it on production of an order of appointment, whereas in the case of

property, he must produce a certificate form the Deputy Commissioner, in the prescribed form, that the property belongs to the religious institution.

As a distinction is made between the institution and property, learned counsel submitted, that proviso which gives right to the aggrieved person, for

establishing his title to the property, can only be confined to his right to the property and not to the institution. I am unable to accept this contention.

The section provides for obtaining possession of the religious institution, records, accounts and property thereof. Regarding the institution

possession can be obtained on the production of an order of appointment by the duly appointed trustee, whereas in the case of Immovable

property, a certificate that the property belongs to the religious institution, from the Deputy Commissioner is necessary. Regarding obtaining

possession of records and accounts no specific procedure is mentioned. Because in the section a particular procedure is prescribed for obtaining

possession of property; it cannot be said that the word ""property"" is used in a restricted sense in the proviso also. Normally, the word ""property

would include not only Immovable property, but also the institution, records and accounts thereof. In the proviso the word is used a general sense

to include the institution, records, accounts and property. The contention of the learned counsel, therefore, is unacceptable.

(5) Learned counsel then submitted that the District Magistrate acting under S. 101 of the Act is not subordinate to any civil court that the order of

injunction passed by the civil court is not binding on him, and that the issue of an order of injunction by a civil court, is specifically prohibited by the

Hindu Religious & Charitable Endowments Act. He strongly relied on a decision of this court, in In Re: Nallamothu Chimpireyya and Others, . In

that case, the petitioners obtained an order of injunction, against the duly appointed trustees restraining them form taking possession of the lands, till

the disposal of the suit. Pending the order of injunction, the joint Magistrate passed an order under S. 87 of the Act, directing delivery of

possession of the properties, to the duly appointed trustees. Ramaswami J., held that the First Class Magistrate was vested with jurisdiction, to

inquire into the matter of putting the trustee or executive officer in possession and the pendency of a civil suit, would not in any way affect his

jurisdiction. He also held that S. 62 of the Act, while enabling an aggrieved party to file a suit, did not confer power on the civil court, to stay the

Commissioner''s order, pending disposal of a suit. He further held, that the Joint Magistrate as not subordinate to he Subordinate Judge, and an

injunction could not be granted by the civil court, to stay the proceedings, in the court of the Joint Magistrate. The decision is, no doubt, very much

in favour of the contention of the learned counsel. But considerable doubt about its correctness, was expressed by a Division Bench of this court in

Muthuswami Gurukkal Vs. Ayyasami Thevan and Others, . The Bench held, that it is not as if the civil court has no jurisdiction to grant any interim

relief, in a suit under S. 62(1) of the Act. The ban imposed by that section can be applied only to the extent warranted by the language of that

statutory provision. Referring to the decision of Ramaswami J., in In Re: Nallamothu Chimpireyya and Others, the Bench observed at p. 258:

In the course of those criminal revision proceedings the learned Judge could not, and did not go into the question, whether the interim injunction,

granted by the civil court, should be vacated or treated as non est in law. Apparently the learned Judge did not consider what the effect would be

of leaving both the orders, intact, that of the criminal court directing delivery of possession of the lands to Veerayya, and that of the civil court

prohibiting Veerayya, form taking possession of those lands"".

In considering the question whether S. 62(1) forbears the civil court, form granting interim relief, the Bench observed:

If the ordinary jurisdiction of the civil court, is to be ousted, it must be by the express words, or by necessary intendment of the statutory

provisions, on which reliance is placed. The ban imposed by S. 62(1) can be applied only to the extent. Warranted by the language of that

statutory provision"".

Referring to the view expressed, that he civil court cannot injunction, lawfully appointed trustees from taking possession of the properties, from

persons who claim to be trustees, the Bench expressed its dissent and held that he civil court has jurisdiction, to grant interim relief asked for by the

plaintiff in that case. The authority of the decision of Ramaswami J., in In Re: Nallamothu Chimpireyya and Others, is thus considerably shaken in

that, the view of the learned Judge, that the civil court cannot grant injunction under S. 62 of the Act was dissented form by the Bench.

(6) The present suit is not one filed under S. 62 corresponding to S. 70 of the new Act. The suit was filed, as already stated, for declaring that the

petitioner is entitled to possession of the religious institution and properties, as lawful trustee. In disposing of a criminal evasion case, this curt

cannot go into the questions, whether the suit was properly laid, whether the Munsif court has jurisdiction, and whether the relief claimed, cannot

be obtained, without having recourse to the procedure laid down under the Act. Right of suit is given to an aggrieved party, under S. 101 of the

Act, for establishing his title to the property. It has been held by a Division Bench of this court in Prattipati Dandaiah and Another Vs. Nori

Venkatrama Dikshitulu, Managing Trustee of Sri Brahmeswaraswami Temple at Vathcharukur and Others, that the provisions of the section, which

enables a duly appointed trustee, to obtain an order form the Magistrate, for dispossession of the ex-trustees was valid as it was in public interest

and that the rights of the aggrieved person were amply safeguarded, by enabling him to approach the civil court for establishing his title to the

property. Subba Rao, J. (As he then was) observed as follows at p. 554 (of Mad LJ): (at p. 503 of AIR):

The underlying purpose of the section is apparent. It is conceived and enacted in public interests, to enable a trustee of a temple, to recover its

properties expeditiously, form recalcitrant ex-trustees, or other servants of the temple the section also provides for safeguards against arbitrary

eviction. The summary order is liable to be challenged in a court of law, by an aggrieved party, by filing a suit for establishing his title. While it

enables the temple to recover its properties form the ex-office-holders, it gives them adequate protection, against arbitrary eviction when the

Legislature in its wisdom, thought fit to make a provision like S. 87 which in its ultimate analysis, only drives the office holder to file a suit, to

establish his title, if he had not proved the same, before the Commissioner, cannot be considered to be an unreasonable restriction, on the right of

the petitioner to hold the property.

(7) Thus the constitutional validity of the section, was upheld on the ground that the driving of an officer-holder, to file a suit to establish his title,

cannot be said to be an unreasonable restriction. The right of an aggrieved party to establish his title in a civil suit, cannot therefore be questioned.

The aggrieved party need not wait till an adverse order is passed against him by the Magistrate under S. 101 of the Act. When his possession is

threatened, he can go to the civil court for obtaining reliefs. The power granted to the Magistrate is only subject to the aggrieved party establishing

his title in the civil suit. It may be that the hands of the Magistrate are not tied, by the mere filing of a civil suit but when an order of injunction is

obtained against he duly appointed trustees, the Magistrate cannot proceed with the enquiry and pass an order directing delivery of possession

which is contrary to the terms of the injunction order. Where the civil court has granted an order of injunction the criminal court under S. 101 of the

Act, cannot go into the validity or otherwise of that order and the proper procedure will be for the duly appointed trustees to approach the civil

court for redress. In the present case, an order of interim injunction has been passed by the civil court and it is for the petitioner to question the

maintainability of the order, in the manner open to him in law.

(8) In the result, the order of the Magistrate, is set aside and the revision petition is allowed.

(9) Revision allowed.