The Commissioner for Hindu Religious and Charitable Endowments. Madras vs The Mouna Matta Kaitalai Attached to Sri Thayumsnaswami Temple, Rock Fort, Tirucknuchirapali

Rajamannar, C.J.—These two civil revision petitions have been preferred by the Commissioner for Hindu Religious and Charitable Endowments, Madras, for the purpose of obtaining from this Court a ruling on the applicability of S. 103 (e) (ii) of Madras Act XIX of 1951 rather than to upset the actual order of appointment of a manager in one case and a treasurer in the other case on the ground that the persons appointed are not fit and proper persons The learned Advocate General made it clear that the revision petitions were filed only on the question of the principle involved which is of general importance C. R. P. No. 438 of. 1953 relates to a scheme framed by the Subordinate judge of Tiruchirapalli in O. S. No. 25 of 1913, in respect of certain kattalais at the instance of the general trustees of the Rock Fort Temple, Tiruchirapalli. The scheme framed by the learned Subordinate Judge was modified in certain particulars by this Court in A. S. Nos. 432 and 433 of 1915 It is not necessary to advert in detail to the several provisions of the scheme. It suffices to say that the Court was entrusted inter alias with the power to appoint a manager to superintend the affairs of the kattalais in suit. In pursuance of this provision, when a vacancy arose in the office of manager, the Court was apprised of the vacancy and applications were called for to fill up the vacancy. Applications were received by the Court and eventually one Sri S. Goalie was appointed manager of the kattalais from 04. 10 1952 for a period of five years the Commissioner for Hindu Religious and Charitable Endowments, Madras, came to understand that such an appointment had been made by the Court and he filed an application to be impleaded as a party to raise the question as to the power of the Court to appoint the manager under the scheme in view of the provisions of S. 103 (e) (ii) of 3. Madras Act XIX of 1961. The learned judge held that the Court continued to have the power notwithstanding S. 103 (e) (ii) of the Act As we do not intend to go into the merits of the findings of the learned Judge embodied in his judgment, we shall briefly indicate the reasoning apparently on which he arrived at the conclusion that the Court''s jurisdiction remained unaffected by S. 103 (e) (ii) of the Act In the learned Judge''s view, the kattalais in question were attached to a mutt and if the scheme framed by. the Court should be deemed to be framed under the Act, then it should be deemed to have been framed under Cl. 3 of S. 58, and that provision was held ultra virus the legislature, and therefore it followed that if the scheme itself was void because the statutory provision which empowered the Commissioner to frame the scheme was itself ultra virus, every part of the scheme would fail along with the scheme and therefore the Commissioner would have no power to make the appointment under one of the clauses of the scheme The result would be, according to him. that the Court''s jurisdiction under the scheme would remain. When the learned Judge dealt with the application and passed the order under revision, he had before him only the decision of this Court in Sri Shirr Matt v. Commissioner, Hindu Religious Endowments Board (1952) 1 M.L.J. 557, in which it had been held that S. 58 (3) was ultra view The Supreme Court has since taken a different view and therefore this part of the reasoning of the learned judge fails. We are of the opinion that there can be no objection whatever to the contention pressed upon US by the learned Advocate General as to the automatic application of the provisions of S. 103 (e) (ii) of the Act of 1951 to cases tailing within the scope of that provision. All that the sub clause provides is an automatic substitution of the Commissioner for the Court in a scheme framed by the Court There are two stages as it were The first is that the scheme framed by the Court is deemed to be a scheme framed under the Act. That is the effect of S. 103 (d). Next under Cl. (e), in such schemes, as well as schemes actually settled under the Act, all powers conferred and all duties imposed by any such scheme on any Court or Judge or any other person or body of persons not being trustee or trustees or a paid or a honorary officer or servant of a religious institution shall be deemed to have been conferred or imposed on the Area Committee if the institution is subject to the juries diction of such a committee and on the Commissioner in other cases The appointment of a manager in respect of the kattalais concerned in this case, even though it is made by the Commissioner on account of the provisions of S. 103 (e) (ii) of the Act, will be in law an appointment made under the scheme and not under any of the provisions of the Act The Commissioner''s power of appointment, the method of appointment and the duties of the manager and the right of supervision over the manager would all depend upon the clauses in the scheme and not the provisions of the Act.

It is obvious that this automatic substitution of the Commissioner for the Court in a scheme framed by the Court cannot itself adversely affect the rights of any party, including the right of a hereditary trustee or madathipathi like the Pandarasanathi, who IS the respondent in this case All that the learned Judge should have considered is whether there is a scheme framed by the Act, and whether under that scheme powers are conferred on the Court and then accept the position that wherever powers are conferred on the Court they will stand transferred to the Commissioner. It would follow that the Court would cease to have the power to appoint the manager under the scheme. It was not necessary for the learned Judge to go into an elaborate discussion of the question whether the kattalais were specific endowments attached to a. temple or to a mutt We, therefore, refrain from dealing with the learned Judge''s finding on the point We may even safeguard the rights of both parties by saying that the said finding will stand discharged, not because we have gone into the merits and found that it is wrong, but because it is a finding which in our opinion was unnecessary for the disposal of the matter before him, namely, the applicability of S. 103 (e) (ii) of the Act to the instant case. We make it clear that we have not expressed our opinion on the merits of this finding.

If any party including the hereditary trustee has any objection to any of the provisions of the scheme is such ill of course, be at liberty to take appropriate proceedings to have such obnoxious provisions struck down or it may be that he may even be entitled to have the entire scheme struck down Our present order will in no way affect the rights of parties to take such proceedings. We are not declaring that the scheme framed by the Court, which now should be deemed to be a scheme framed under the Act, is valid in its entirety. We are not called upon in this petition to deal with that question. It is sufficient to dispose of this petition to say that there is a scheme framed by the Court which scheme should be deem and to be a scheme framed under the Act and all the powers which could be exercised by the Court under the scheme automatically stood transferred to the Committee or Commissioner as the case may be on the pas sing of Madras Act XIX of 1951.

With the actual order itself of appointment we do not think we should interfere in exercise of our revision powers The civil revision petition is, therefore, dismissed. But, in the circumstances, there will be no order as to costs. C.R.P. No. 1678 of 1953 : All that we have said above as regards the appointment of a manager under the scheme framed by the Court would equally apply to the appointment of a treasurer under a scheme framed by the Court in relation to another institution. There too, on the passing of Madras Act XIX of 1951, the power of appointment which was vested in the Court would stand transferred to the Commissioner. Here too we do not propose to inter fore with the actual order of appointment. The civil revision petition will therefore stand dismissed. No order as to costs.