Tirumalaisami Naicker vs Villagers of Kadambur and Another

Natesan, J.—Two questions are raised in this Letters Patent Appeal from the decision of our learned brother, Kailasam, J. First it is

contended that the suit not having been instituted in conformity with and as provided for under the Madras Hindu Religious and Charitable

Endowments Act, Madras Act XIX of 1951, hereinafter referred to as the Act, it is barred u/s 93 of the Act. Next it is submitted that the suit is

bad for non-joinder of the other trustees of the religious institution in question.

The appellant before us is the first defendant in a suit filed by the villagers of Kadambur, Athur Taluk, Salem District, represented by their

Nattamaikarar Nallathambi Moopanar, as the plaintiff, for a declaration that the suit building belonged to the villagers and the second defendant in

the suit, the District Board, Salem, was their tenant. An injunction was prayed for restraining the first defendant in the suit, the present appellant,

from interfering with suit property. The first defendant is one of the trustees of certain temples in the village, and it is the case of the plaintiff that the

first defendant fraudulently obtained an order from the Hindu Religious and Charitable Endowments Board to the effect that the suit property is a

property of the temples. It is seen that on proceedings taken by the first defendant u/s 87 of the Act (Miscellaneous Petition No. 73 of 1957) for

possession of the suit property, the second defendant who was in occupation of the property as a tenant of the plaintiff attorned to the first

defendant on 20-5-1957. The second defendant subsequently on 20-12-1957 sent to the plaintiff a memo to the effect that the suit property had

been included as temple property, and that the first defendant claimed to be entitled to receive the rents. This, according to the plaintiff,

necessitated his filing the suit for a declaration of the title of the villagers to the suit property and for an injunction against the first defendant. The

plaintiff would state that the order obtained by the first defendant from the H.R. and C.E. Board was not binding on the plaintiff and it could be

ignored by the villagers.

In its written statement the second defendant Board expressed its willingness to pay the rent to such person as the Court might declare to be

entitled to receive the rent. Besides setting up a plea that though the suit building was built by the villagers it had been dedicated to the temples in

the village and therefore it is a public religious institution, the first defendant strenuously contended that the suit should have been in conformity with

Section 62 of the Act, filed in the Sub-Court, which alone had jurisdiction. A plea of non-joinder of the other trustees of the temple was raised and

the written statement specifically set up the order u/s 87 of the Act as a bar to the suit as instituted.

The learned District Judge, on an elaborate consideration of the evidence, oral and documentary, upheld the plaintiff''s claim that the second

defendant Board had entered on the possession of the suit property as tenant under the person who was then in management of the property as

Nattamaikarar of the villagers and was continuing in possession of the property. He found that there was no proof that at any point of time the

temples enjoyed the suit property or appropriated the income from the suit property which was constructed from subscriptions collected from the

villagers. For the first time in 1956 the H. R. and C. E. Board had passed orders treating the suit property as belonging to the village temples and

appointing the first defendant and two other persons as trustees issued a certificate u/s 87 of the Act. It is seen from the record that for sometime

previously the first defendant had been seeking to convince the second defendant not to pay the rent to the plaintiff in his capacity as Nattamaikarar

of the village. The learned District Judge observes that the first defendant chagrined at his failure in convincing the second defendant Board not to

pay the rent to the plaintiff in his capacity as Nattamaikarar of the village must have induced the H. R. and C. E. Board authorities to include the

suit property as part of temple property and appoint trustees for the temples with a direction to take possession of the suit property, and that

evidently the first defendant thought ""that unless he adopted such sharp practice"" he could not prevent the plaintiff in his capacity as Nattamaikarar

of the village from collecting the rent from the second defendant board"". We may add here that the plaintiff, either in his individual capacity or as

Nattamaikarar of the village, was not made a party to the proceedings before the H. R. and C. E. Board, and as pointed out by the plaintiff, the

orders of the Board had been obtained behind his back without any reference to him and obviously without bringing to the notice of the Board the

dispute relating to title to the suit property.

We fail to see how on the facts as pleaded and as have now emerged it would be said that the suit is barred by any law. Manifestly it is just a

common law suit by the person duly representing the owners of the property for a declaration of title of the villagers against their tenant who sets

up a third party''s title and pleads attornment to the third party. The plaintiff has chosen to implead in the suit, besides the tenant, the person who

according to him induces the tenant not to pay the rents to the plaintiff, and who eo nomine obtained an order for possession u/s 87 of the Act. The

argument for the appellant is that Section 93 of the Act read with Sections 57, 62 and 87 bars the suit as instituted. In our view, this plea was

rightly overruled by the learned District Judge. Our learned brother, Kailasam, J., has examined the plea at length and affirmed its untenability.

Section 93 bars suits or other legal proceedings in respect of the administration or management of a religious institution or any other matter or

dispute for determining or deciding which provision is made in the Act, except under and in conformity with the provisions of the Act. It is

nobody''s contention that the present suit relates to the administration or management of a religious institution. The next question is whether the suit

relates to any other matter or dispute for determining or deciding which provision is made in the Act. Clearly there is no provision in the Act for

determination of the dispute as raised in the suit. This is a simple suit by the landlord against his tenant who sets up title in a third party. Relief is no

doubt claimed also against the parson who happens to be one of the trustees of the institution on the averment that he is interfering with the lawful

and due realisation of the rent by the plaintiff from the second defendant Board. u/s 9, C. P. C. a litigant having a grievance of a civil nature has,

independently of any statute, a right to institute, a suit in a Civil Court under the provisions of the Civil Procedure Code, unless cognisance of the

suit is either expressly or impliedly barred. If a suit is otherwise within the jurisdiction of the Civil Court the person who seeks to oust the

Jurisdiction of that Court must affirmatively establish the bar, every presumption being in favour of the jurisdiction of the Court. Exclusion of the

jurisdiction of a Civil Court in a case where a person asserts a right and seeks remedy cannot be readily inferred. Exclusion of the suit in question

from the cognisance of the Court must be either expressly expressed or clearly and necessarily implied. A reading of Section 93 shows that it does

not impose an absolute bar on the maintainability of a suit in a Civil Court. It provides, that a suit of the nature contemplated therein, can be

instituted only in conformity with the provisions of the Act. Clearly a suit or other legal proceedings in respect of matters not contemplated in the

section can be instituted in the ordinary way. Section 93 imposes certain statutory restrictions in respect of suits mentioned therein, suits relating to

the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in the

Act. The suits under the two categories mentioned in the section must be instituted under and in conformity with the provisions of the Act This last

limb of the section brings out that the restriction on suits or other legal proceedings, is in respect of matters for which provision is made in the Act.

It cannot mean that suits of the category for instituting which, no provision is made in the Act are barred. There can be suits not covered by the Act

and aggrieved parties will be deprived of all remedies where no provision is made under the Act for securing the relief they desire and at the same

time it should be held that remedies outside the Act are barred. Section 93 clearly bars only those suits for which provision has been made in the

Act and it does not prohibit the institution of suits under the general law which do not fall under the scope of any of the sections of the Act.

Our attention is drawn by learned Counsel to Sections 57 and 62 of the Act. Section 57 provides for the Deputy Commissioner to decide

certain disputes and matters, and Section 57(c) enables the Deputy Commissioner to enquire into and decide whether any property or money is a

religious endowment''. Section 61(1) provides for an appeal to the Commissioner by any person aggrieved from any order passed by the Deputy

Commissioner under the prior provisions within one month from the date of the publication of the order. In the case of a party concerned the

appeal must be within one month of the receipt of the order. u/s 62(1) any party aggrieved by an order passed by the Commissioner, u/s 61 Sub-

section (1) or Sub-section (2) and relating to any of the matters specified in Section 57. Section 58 or Section 60 may within 90 days from the

date of the receipt of such order by him. Institute a suit in the Court against such order. But the Court is given no power to stay the

Commissioner''s order pending the disposal of the suit. Court is defined u/s 6(6) of the Act as the Subordinate Judge''s Court having jurisdiction

over the area in which a temple is situated and the District Court having jurisdiction where there is no Subordinate Judge''s Court. Learned Counsel

would contend that here is an order u/s 57 of the Act recognising the property in question as that of certain temples, and that therefore the suit must

be instituted in the Subordinate Judge''s Court, and not in the District Munsif''s Court as has been done. The power of the Deputy Commissioner

to find whether a particular property belongs to a temple, it is said, is found in Section 57. Therefore it is argued that when a certificate is issued u/s

87, it involves a decision u/s 57(c). But the first thing to be noticed is that the Deputy Commissioner in this case was not called upon to decide any

dispute between the plaintiff and the institution. As stated earlier the plaintiff was not a party to the proceedings and orders have been obtained

without reference to the dispute, behind his back, Section 62 provides for suits by any party that may be aggrieved by the order of the

Commissioner passed on appeal made to him. An order u/s 57(c) of the Act has not been made a decision in rem to bind persons not parties to

the proceedings. So long as the plaintiff''s rights are not affected, his title placed in jeopardy and his possession and enjoyment of the property not

interfered with, he may ignore orders and proceedings to which he is not a party and which in law are not binding on him. A mere declaration

behind the back of the plaintiff without reference to him, that the property is that of the temple will not affect the plaintiff. What affected the plaintiff

was the much later attornment by the second defendant-Board against whom the certificate u/s 57 was obtained and the Board''s refusal to pay

rents to the plaintiff.

Section 87 of the Act enables a person who has been appointed as trustee or Executive Officer of a religious institution or to discharge the

functions of a trustee of a religious institution, when resisted in or prevented from obtaining possession of the property of a religious institution by a

trustee, office bearer or servant of the religious institution who has been dismissed or suspended from his office or 13 otherwise not entitled to be in

possession or by any person claiming or deriving title from such trustee, office-bearer or servant, to secure possession by summary proceedings

before specified alias of Magistrates. But the summary procedure cannot be availed of against a person claiming in good faith to be in possession

on his own account or on account of third parties, that is not on account of trustees, office bearers and servants of the temple dismissed or

suspended or otherwise not entitled to be in possession. To get an order for delivery under the Section the person who could claim possession u/s

87 has to produce a certificate by the Commissioner in the prescribed form setting forth the property in question. Under the proviso to Section 87

before issuing a certificate in respect of any property, the Commissioner has to give notice to the trustee, office-holder or servant of the religious

institution, as the case may be and consider the objections, if any, made. The certificate is conclusive for the purpose of the proceedings under the

section. Dispossession of persons bona fide in possession on their own account is not contemplated in these proceedings. Section 87 further

expressly provides that nothing in the section shall bar the institution of a suit by any person aggrieved from an order under the section for

establishing his title to the suit property, that is the existence of right of suit even to persons against whom proceedings u/s 87 are specifically

contemplated and have been taken if they are aggrieved, is recognised. A fortiori suit by a third party to establish his right in any property that may

be the subject of an order u/s 87 would require no saving even. It is not a suit which is provided under the Act; it is not barred under the Act and

therefore cannot be subject to the restrictions found in Section 62 of the Act. The suit instituted in the present case is one for a declaration of title

with consequential relief of injunction by a stranger to the proceedings under the Act. This is not therefore a suit which is contemplated u/s 62 of

the Act, and clearly Section 87 does not bar the suit in question. Section 93 in the circumstances cannot stand in the way of institution of the

present suit. The first contention fails.

As regards the plea of non-joinder of other trustees, no doubt where a religious institution has plurality of trustees the institution cannot be

represented unless all the trustees are made parties. If the temples are to be bound by this judgment, all the trustees are necessary parties. But the

present suit is framed as against the first defendant restraining him from in any way objecting to the payment of rent by the second defendant Board

to the plaintiff. As our learned brother Kailasam, J., points out, the suit is not against the first defendant in his capacity as trustee appointed by the

Religious Endowments Board. It follows that this plea of non-joinder of other trustees also fails.

In the result the Letters Patent Appeal fails and is dismissed with costs.