KRISHNAN NAMBUDIRI Vs. CHERIYA PURUSHOTHAMAN NAMBUDIRIPAD

JUDGEMENT

(1.) The plaintiff, an ooralan of a devaswom, sued defendants 1 to 4 the other ooralars, to enforce payment of a sum of Rs. 850-11-0, being the annuity payable to him for the years 1123 to 1125 M. E., under a karar for management Ext. A1, dated Thulam 1, 1035 M. E. Defendants 2 to 4 died pending the suit, and those who succeeded them as ooralars were impleaded in their place. The relevant provision in Ext. A1 is clause 7, which declared that an annuity of 720 edangazhies of paddy would be paid by the devaswom to the plaintiff's illom as in the past, in consideration of a prior karanavan of the illom having spent large sums of money, which were not to be refunded, to discharge the debts of the devaswom. The two courts have decreed the suit. Defendants 1 and 5, the latter being the successor of the third defendant, have preferred this second appeal and their only contention was, that by reason of the provisions of the Madras Hindu Religious and Charitable Endowments Act 1951, Act XIX of 1951, the civil court has no jurisdiction to entertain the suit.

(2.) The provisions of the Act aforesaid which bear on this controversy are, S.57 clause (e) and S.93. S.57, clause (e) reads,

(3.) It is unnecessary for the disposal of this appeal to canvass the soundness of the reasoning on which the Subordinate Judge passed the order of remand, for it was not appealed against and under S.105 sub-section (2) C. P. C. both parties are now precluded from disputing its correctness. While remanding the case, the Judge did not decide the issue of jurisdiction and had he done so, there would have been an end of the matter. He decided merely, and the counsel, seemed to agree upon this construction of the remand order, that the suit has to be disposed of in accordance with the provisions of Act XIX of 1951 and not of Act II of 1927. This was how the two courts also understood the scope of the remand. If this be so, there is no point in the argument of counsel for the plaintiff, supported no doubt by authority, that the law in force on the date of the commencement of the action would continue to apply till its termination, notwithstanding any change in the law in the interval having no retroactive operation. The question which now arises is simply whether the suit is maintainable under Act XIX of 1951.