AVIYUR MARIAMMAN TEMPLE Vs. T N SUNDARAMOORTHI PILLAI

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree of the lower appellate Court in A. S No. 194 of 1977 remitting the suit O. S. No. 68 of 1976 on the file of the District Munsif, Tirukoilur to decide the question as to who as between the parties to the suit is a hereditary trustee for the suit temple.

(2.) THE circumstances under which the suit came to be filed may briefly be stated: THEre is a temple called Aviyur Mariammaa temple in Aviyur Village, Tirukovilur Taluk, South Arcot District, THEre is no dispute that the said temple is a public temple. THE appellant herein filed an application before the Deputy Commissioner of Hindu Religious and Charitable Endowments under section 63 (b) of the Tamil Nadu Act XXII of 1959 for a declaration that the office of trusteeship in the suit temple is hereditary and that he is the hereditary trustee of the temple. THE Deputy Commissioner granted the declaration prayed for by the appellant and the order of the Deputy Commissioner has been marked as Exhibit A-4 in the case. Exhibit A-5 being the certified copy of the annexure to the order. THEreafter there was an appeal against the said order of the Deputy Commissioner, but the said appeal was dismissed by the Commissioner, Hindu Religious and Charitable Endowments. Later the appellant herein filed O S. No. 68 of 19/6 on the file of the District Munsif, Tirukovilur, for a declaration that he is the hereditary trustee of the suit temple and for a permanent injunction restraining the respondents from interfering with the appellant's functioning as a trustee of the suit temple. THE appellant contended that the order passed by the Deputy Commissioner declaring him to be a hereditary trustee has become final and conclusive and that decision not having be n challenged under section 70 of Tamil Nadu Act XXII of 1959, the present suit seeking a declaration that the appellant is a trustee is maintainable. This contention was upheld and based on the order passed by the Deputy Commissioner, the trial Court held that the appellant is a hereditary trustee of the suit temple and therefore the plaintiff is entitled to the declaration. THE trial Court thus decreed the appellant's suit. THE respondents herein filed an appeal before the lower appellate Court contending that the Deputy Commissioner acting under section 63 (b) of Tamil Nadu Act XXII of 195 can only decide whether a trusteeship in a temple is hereditary or not and he has no jurisdiction to decide as to who among the rival claimants is the hereditary trustee and therefore the decision rendered by the Deputy Commissioner under Exhibit A-4 that the plaintiff is a hereditary trustee of the suit temple is without jurisdiction and therefore the Sub-Court has to decide the question as to who is the hereditary trustee without reference to the order of the Deputy Commissioner. THE lower appellate Court held that the trial Court was in error in proceeding on the basis that the question as to whether the plaintiff was a hereditary trustee or not is a question which is exclusively within the jurisdiction of the Deputy Commissioner to decide under section 63 (b) and as such the defendants cannot question the said decision without adopting the course laid down in section 70 of the Act, that the said decision rendered by the Deputy Commissioner is binding on the civil Court and that in fact the dispute between two rival claimants to succeed to a hereditary office is not within the scope of section 63 of the Act and therefore the decision rendered by the Deputy Commissioner in Exhibit A-4 cannot be taken to be final and conclusive and therefore the trial Court has to go into the question as to whether who as between the parties is to be declared as hereditary trustee of the suit temple. In this view, the lower Appellate Court has set aside the judgment and decree of the trial Court and remitted the matter to the trial Court for disposal. THE said remit order has been challenged in this appeal on the ground that the lower appellate Court has not properly understood the scope of section 63 (b) of Tamil Nadu Act XXII of 1959.