Vythilinga Pandara Sannadhi vs G. Ranganadha Mudaliar and Others

Venkatasubba Rao, J.—These Civil Revision Petitions raise a question of some importance regarding the construction of Section 73 of the

Madras Hindu Religious Endowments Act (II of 1927).

Two suits were filed in the Lower Court, the plaintiffs being the members of the Board of Control of Sri Thyagarajaswami Temple, Tiruvarur.

One of them was for the removal of the 1st defendant, described as the hereditary trustee of the kattalai known as Annadana Kattalai; the other

related to the Abisheka Kattalai, in regard to which also the 1st defendant is the hereditary trustee. Various allegations of misconduct are made in

these suits against the 1st defendant, and the suits were filed both u/s 73 of the Hindu Religious Endowments Act and Section 92 of the Code of

Civil Procedure. The consent of the Advocate-General u/s 92 was obtained, as also the consent of the Board u/s 73. A preliminary issue was

raised in these suits, which runs thus:

Is the suit sustainable in law and has this Court jurisdiction to try it?

The learned District Judge of East Tanjore having decided that issue in the affirmative, the 1st defendant has filed the present Civil Revision

Petitions, questioning the correctness of the order.

Section 73 is in the following terms:

(1) The Board or Committee having jurisdiction over any math or temple or any person having interest and having obtained the consent of the

Board may institute a suit in the Court to obtain a decree-

(a) appointing or removing the trustee of a math or excepted temple,

(b) vesting any property in a trustee,

(c) declaring what proportion of the endowed property or of the interest therein shall be allocated to any particular object of the endowment, or

(d) granting such further or other relief as the nature of the case may require.

(2) Sections 92 and 93 and Rule 8 of Order 1 of the first schedule of the Code of Civil Procedure, 1908, shall have no application to any suit

claiming any relief in respect of the administration or management of a religious endowment and no suit in respect of such administration or

management shall be instituted except as provided by this Act.

Section 73(1)(a) mentions only a ""math or excepted temple ""but does not refer to a kattalai. Under that section the petitioner contends that no

suit can lie for the removal of a trustee of a kattalai. The contention is based upon the terms of Clause (2) of the provision quoted above. Under the

same clause it is further contended that even u/s 92 of the CPC these suits do not lie. This view of the section is in my opinion well founded. Clause

(2) consists of two parts, and I shall deal first with the earlier portion. That enacts, that Section 92 (I omit the words not material for the present

purpose) shall have no application to any suit claiming any relief in respect of the administration or management of a religious endowment. The

expression ""religious endowment"" is thus defined in Section 9(11):

''Religious endowment'' or ''Endowment'' means all property belonging to, or given or endowed for the support of, maths or temples or for the

performance of any service or charity connected therewith and includes the premises of maths or temples but does not include gifts of property

made as personal gifts or offerings to the head of a math or to the archaka or other employee of a temple.

That definition is wide enough to include the case of a kattalai. Now, the words of the first part of Section 73(2) construed as they stand, refer

to ""any suit claiming any relief,"" the terms are quite general and comprehensive and are not confined to those suits only claiming such reliefs as are

mentioned in Clause (1). The argument of Mr. A. V. Viswanatha Sastri, the respondents'' learned Counsel, that the ambit of Clause (2) is no wider

than that of Clause (1), does not commend itself to me. His contention involves that the words ""any suit claiming any relief"" are used in a restrictive

sense, although that interpretation is opposed to the plain and"" natural meaning of the words. When the section says ""any relief""-words free from all

ambiguity-why should they be construed as meaning"" such reliefs as are mentioned above"" ? Granting that any doubt remains, that is dispelled by

the very clear and plain terms of the second part of Clause (2). � That provides that ""no suit in respect of such administration or management

shall be instituted except as provided by this Act"". In regard to this part at any rate, it cannot possibly be suggested that it is merely complemental

to Section 73(1), for it refers to ""this Act"" generally and not to any particular provision of the aforesaid section. By no stretch of language can the

words ""this Act"" be construed as meaning ""a particular provision of this Act"". The situation then is this: Clause (2) consists of two parts. The

second part cannot obviously be regarded as restrictive in its scope or as being merely dependent upon Section 73(1). It would be wrong to apply

two different tests to the two different parts which compose the same clause. If my construction then of the first part of Clause (2) is right, it follows

that the words there clearly exclude the applicability of Section 92 to the suits in question, as they relate to the administration or management of a

kattalai, which, as I have shown, is a religious endowment under the Act.

I shall now proceed to the second part of Section 73(2) which reads thus:

No suit in respect of such administration or management shall be instituted except as provided by this Act.

The point we have to decide really turns upon the construction to be placed upon the expression ""except as provided by this Act "". In His

Holiness Srila Sri Vythilinga Padara Sannadhi Avergal, Athinakarthar of Thiruvaduthurai Athinam Vs. The Temple Committee and Another,

Curgenven, J. (in a judgment with which Cornish, J. agrees) construes the expression as meaning ""contrary to the provisions of this Act "". The

learned Judge recognises that this construction puts a strained sense upon the words, but feels obliged to adopt that view in order to avoid certain

difficulties, which he thinks would otherwise result. In arriving at that conclusion, he dissents from his own earlier view expressed in Ranganayaki

Bai Ammal v. Shivarama Dubay (1929) 58 M.L.J. 104 and follows a decision of Wallace, J., K.R.M.T.T.A.L. Alagappa Chettiar Vs.

K.R.M.T.T.A.R. Arunachallam Chetty and Others, . In the last mentioned case Wallace, J. observes thus:

Therefore, if the Act sets out the provisions under which such a suit shall be instituted, the present suit will not lie unless such provisions are

complied with. But I do not find that the Act does lay down provisions for a suit of this kind.

Again, Cornish, J. in Appeal No. 374 of 1930 (unreported) has made some observations in the same sense. I have carefully gone through the

judgments in the cases referred to above and I am satisfied that the expressions of view on this point by the learned Judges in His Holiness Srila Sri

Vythilinga Padara Sannadhi Avergal, Athinakarthar of Thiruvaduthurai Athinam Vs. The Temple Committee and Another, and Appeal No. 374 of

1930 (decisions of Benches of this Court) are obiter and are not therefore binding upon us. In the first of these two cases the plaintiff sued to

establish his right as the hereditary trustee of a certain temple. After stating that such a suit relates to a personal right, Curgenven, J., if I may say so

with respect, very rightly points out:

Now in the first place, it appears to me very doubtful whether a suit by a trustee to establish his hereditary right to his office, is a suit in respect of

the administration or management of the religious endowment to which the trusteeship appertains.

Then after dealing with the scope of Section 92 of the CPC the learned Judge goes on to observe:

For this reason alone I do not think that Sub-section (2) of Section 73 of the Act opposes any bar to the institution of a suit like the present.

That was decisive of the case and sufficient to dispose of it; but assuming that his view, namely, that a suit to establish a personal right is outside

the scope of Section 73 may be wrong, he proceeds to deal with the construction of the words"" as provided by this Act"" occurring in the closing

part of the section. The decision on that point was, in my opinion, therefore not necessary for the determination of the case before him. Now

turning to Appeal No. 374 of 1930, the only question that arose was, whether a suit for directing accounts was or was not covered by Section 73

of the Religious Endowments Act. That question was answered in the negative, and the observations on the meaning of the expression we have

now to construe, were obiter. In my opinion, the proper meaning to be placed upon the words is, ""except under the provisions of this Act"". There

is no reason to construe the terms as being confined in their application to the procedure governing the suit, for in their plain and natural sense they

are intended to lay down the substantive law also.

A comparison of the eight clauses of Section 92(1), Civil Procedure Code, with the several provisions occurring in the body of the Hindu

Religious Endowments Act, will show that the framers of the last-mentioned Act intended (whether they succeeded in giving effect to that intention

is quite another matter) to deal with every aspect of the administration or management of religious endowments in the same manner as Section 92

was designed to deal with.

Taking first the case of non-excepted temples, Section 51 relates to the appointment of non-hereditary trustees; Section 54, disqualifications of

trustees [of. Section 92(1) (a) and (b)]; Section 57, settlement of schemes [of. Section 92(1)(g)]; Section 59 deals with safeguards as to accounts;

Sections 45 to 47 may also be referred to in this connection [of. Section 92(1)(d)]; Section 73(1)(b) and (c) deal with the vesting of property and

with declarations as to what proportion of the endowed property shall be allocated to any particular object [of. Section 92(1) (e)]; Section 76

deals with the letting, selling, etc., of the trust property [of. Section 92(1)(f)].

Next taking the case of maths and excepted temples, Sections 62 to 65 relate to settlement of schemes [of. Section 92(1) (g)]; Section 73(1)

(a) deals with the appointing and removing of trustees [of. Section 92(1)(a) and (6)];S. 73(1) (b), with vesting of property [of Section 92(1) (c)];

Section 73(1) (c), with declarations as to proportion, etc. [of. Section 92(1)(e)] and Section 76, with the letting, selling, etc. of the trust property

[of. Section 92(1)(f)].

The above analysis cannot in the very nature of things be either exact or exhaustive. But the point I want to make is, that the Legislature, while

repealing Section 92, CPC (the repeal, I need hardly point out, is only to the extent of the endowments dealt with by the Act), has endeavoured to

provide for all the matters which had been dealt with by the repealed provision; at the same time, the bar to the institution of suits contained in the

last clause of Section 92 having also been repealed, it became necessary to re-enact a provision on the lines of the repealed clause. That was why

the closing words were added,

No suit in respect of such administration or management shall be instituted except as provided by this Act.

There is some force in Mr. Viswanatha Sastri''s contention that these words are wider, and seem to be more comprehensive, than the

corresponding repealed words of Section 92(2); but I do not think it was intended to extend the prohibition beyond what was decided by

numerous cases to be the effect of the bar contained in that abrogated sedition. If this be borne in mind, it will be seen that there is no real conflict

between the view I have taken and the actual decisions, apart from the dicta, in the cases cited before us.

It must be confessed that there are lacuna in the Act-for instance, no effective provision has been made in regard to the directing of accounts

[of. Section 92(1)(d), Civil Procedure Code] -and that difficulty has been felt in Appeal No. 374 of 1930 already referred to. Again, no suitable

provisions appear to have been enacted in regard to kattalais, it being doubtful whether Section 54 (in respect of non-excepted temples) and

Sections 62 to 65 (in respect of maths and excepted temples), which deal with settlement of schemes, are applicable to kattalais; and similarly

there are no provisions, as we are now holding, in regard to appointment or removal of trustees in respect of such endowments. I may

parenthetically point out that it is also-doubtful whether Section 73(1)(b), which refers to vesting of property in trustees, is applicable to kattalais.

It is far better, ""observes Lord Campbell in Coe v. Lawrance (1853) 1 E1. & B1. 517 : (1853) 118 E.R. 529, that we should abide by the words

of a statute than seek to reform it according to the supposed intention"". The Hindu Religious Endowments Act is a recent one and there can be no

difficulty in the legislature suitably amending it to remedy the defects, which the cases brought to the Court reveal.

The result is, that in my opinion the Civil Revision Petitions must be allowed, and I agree in the order proposed by my learned Officiating Chief

Justice. I also concur with what he says at the close of his judgment, regarding any application for amendment of the plaint.

Officiating Chief Justice.-I agree with the judgment of Venkatasubba Rao, J. just pronounced. A study of the scheme of the Hindu Religious

Endowments Act shows that it is intended to be a comprehensive piece of legislation, (1) providing for all kinds of suits relating to the

administration or management of all Hindu religious endowments, and (2) making Sections 92 and 93 of the CPC as well as the Religious

Endowments Act (XX of 1863) inapplicable to such suits. The latter object has been achieved by Section 8 of the Act and by Section 73(2), first

part. While the first part of Section 73(2) makes Sections 92 and 93 of the CPC inapplicable to suits in respect of the administration or

management of Hindu religious endowments, the second part proceeds to say that such suits shall not be filed except as provided by this Act. The

second part was enacted on the assumption that every suit in respect of the administration or management of Hindu religious endowments is

actually provided for in the Act. Unfortunately this assumption, though in the main justifiable, turns out not altogether correct. Section 73(1) and the

other sections of the Act which are enumerated by my brother (an enumeration which it is unnecessary forms to repeat) provide for various suits in

respect of the administration or management of non-excepted temples and mutts and excepted temples; but, unfortunately, there is no section

providing for a suit in respect of the administration or management of a kattalai. Undoubtedly kattalais are also covered by the definition of a

religious endowment in Section 9(11). That being so, they are included in the prohibition of Section 73(2) but the counter-part of such prohibition,

namely, a provision in the Act providing for a suit in respect of the kattalais, is lacking. The proper place for it probably would be Section 73(1)(a).

As my learned brother has pointed out, it is far better that we should point out a difficulty of this kind facilitating immediate amendment of the Act

rather than strain the language of the Act and hold that kattalais are governed by Section 73(1) or conversely that the prohibition of Section 73(2)

does not apply to them, so as to avoid the lacuna.

Some reliance is placed by the respondents upon my judgment in A.S. No. 374 of 1930. In that case myself and my brother Cornish, J. were

not considering the question whether the Act applies to kattalais by which I mean whether the Act provides for suits in respect of the administration

or management of kattalais. That question was not before us though in the course of the argument by the learned advocates reference was made to

kattalais and the possibility of there being a difficulty in Section 73 so far as the kattalais are concerned. What was held in that case by us was that

the actual suit which was the subject of that appeal and which related to a temple was not maintainable in the form in which it was framed. It was a

suit to recover money due on an examination of the accounts, to recover several items of movable property including vahanams, jewellery of the

temple and documents, such as promissory notes belonging to the temple and to recover damages for acts of misfeasance and malfeasance on the

part of the trustees. We held that such a suit was not maintainable u/s 73 of the Act which permits suits for certain reliefs on payment of a Court-

fee of Rs. 50 and we held that the suit in that case did not fall u/s 73. The learned advocate for the respondents urged, in reference to the argument

that such a suit was not maintainable u/s 73, that, if it was not permitted u/s 73, no other suit would be possible because he contended that any

other suit was prohibited u/s 73(2). In meeting this argument I suggested as a possible construction that such a suit would not be prohibited u/s

73(2) because under the first part, Section 92 of the CPC is made inapplicable not to all suits for the administration or management of a religious

endowment but only to suits mentioned in Section 73(1) and the second part of Section 73(2) would not compel the filing of such a suit under the

Act because the second part applies only to the suits referred to in the first part. In dealing with the first part of Section 73(2) I happened to refer

to the decisions in His Holiness Srila Sri Vythilinga Padara Sannadhi Avergal, Athinakarthar of Thiruvaduthurai Athinam Vs. The Temple

Committee and Another, , Kanganayaki Bai Animal v. Shivarama Dubay (1929) 58 M.L.J. 104 and Chandukchand v. Vedachala Chettiar ILR

(1931) Mad. 549 : (1931) 62 M.L.J. 180 and I proceeded to observe that those decisions also related in a sense to the administration or

management of religious endowments. A different reply might have been suggested with reference to the argument of the learned advocate, vis.,

that the suits in those cases did not strictly relate to the administration or management of religious endowments and therefore Section 92 was not

rendered inapplicable to those suits and therefore the prohibition of Section 73(2) also did not apply to those suits. Similarly the suit relating to the

appeal then before us was not a suit relating to the administration or management of a religious endowment and probably Section 92 was not

rendered inapplicable to it by Section 73(2). But whether Section 92 is applicable or not suits merely to recover money found due by the

defendant on the taking of accounts and to recover property belonging to the trust but in the possession of the defendant and to recover damages

for a tort committed by the defendant would always be maintainable under the general law and may not fall u/s 92 even, and they certainly would

not be suits relating to the administration or management of religious endowments. Whether the suggestion in that judgment by which I actually met

the learned advocate''s arguments is the correct way of meeting them or whether the suggestion which I would now make is the better way of

meeting them depends upon what is the exact meaning of the words ""administration or management of a religious endowment"". If the words ""any

suit claiming any relief in respect of the administration or management of a religious endowment"" are taken strictly and are confined to suits the

object of which is to obtain a reform or change in the administration or management of a religious endowment, then the suits covered, by the

decisions already mentioned and also the suit which was the subject of the appeal before us would not fall under the prohibition of Section 73(2).

But if the words ""administration or management of a religious endowment ""are taken in a looser and wider sense, then the three suits in the

decisions cited by me and the suit then before us would be such suits and it would be possible to hold that Section 92 would not be inapplicable to

them only by saying that the prohibition in Section 73(2) relates only to suits permitted in Section 73(1). That the possibility of a stricter sense of

the words ""administration or management of a religious endowment"" was in my. mind is clear from the words ""in a sense"" in my judgment. In

another sense, a stricter sense, they would not be suits relating to the administration or management of an endowment in which case Section 92 is

not inapplicable and moreover under the general law some of the suits are themselves maintainable. The second suggestion might also have been

mentioned in that judgment. But anyhow that judgment has nothing to do with the question whether a suit in respect of the administration or

management of a kattalai is maintainable u/s 73(1) and neither myself nor my brother Cornish, J. gave any opinion in connection with that matter. I

therefore agree with my brother in holding that a suit in respect of a kattalai strictly so called is not maintainable u/s 73(1).

The learned advocate for the respondents then urged another argument before us that the word ''kattalai'' has got two senses, a stricter and a

looser sense, and that, in this case, the trustee of a kattalai is a trustee of the temple. In the stricter sense it is a religious endowment, the object of

which was the performance of some kind of religious duty in the temple for the benefit of some other individual or institution outside the temple. In

this sense the temple is not the beneficiary but something has got to be done in the temple for the spiritual benefit of the beneficiary. In the looser

sense there is no outside institution or individual who is the beneficiary but the temple itself is the beneficiary. That there are two such senses

appears from the judgment of Muthuswami Ayyar, J. in Vythilinga Pandara Sannadhi v. Somasundara Mudaliar ILR (1893) Mad. 199, which was

a case relating to this very temple before us, namely, the Sri Thiagarajaswami Temple at Tiruvalur; and the possibility of the kattalais in this temple

being merely a number of separate trusts also appears from the judgment of myself and Cornish, J. in Ramanatham Chettiar v. Balayee Ammal

(1927) 28 L.W. 32 . But however we do not mean to express a final opinion on this point because it is very inconvenient to do so. It was raised

for the first time in this Court during the argument of this Civil Revision Petition. It was not raised in the first Court and we have not got the benefit

of a judgment of the first Court after a consideration of the facts of the case and it is possible that both parties have not adduced evidence with

reference to this matter. If the trial Court deals with this point, it is possible for the parties to question the correctness of the decision in a first

appeal and the Judges dealing with the first appeal will deal with it unhampered by any expression of our opinion in this Revision Petition. We

permit the plaintiff to amend his plaint, if he thinks necessary, by addition of any further allegation to enable him to raise this point and we leave this

point open for consideration by the trial Court. At present we confine our decision merely to this, namely, that if kattalais in this suit are kattalais in

the stricter sense so called the suit is not maintainable.

In the circumstances of the cases we make no order as to costs.