P SANGILI Vs. RAMAKRISHNAN

JUDGEMENT

(1.) DEFENDANTS 7 to 11 in O. S. No. 39 of 1965 on the file of the court of the subordinate Judge, Sivaganga are the appellants herein. For the purpose of understanding the scope of the appeal, it is necessary to set out certain facts. The suit relates to one Sri Pallar Kaliamman temple, Gandhipuram St. Virudhunagar and the suit properties are claimed to belong to the said temple. Admittedly the suit properties were in the possession of defendants 1 to 4 prior to the Hindu religious and Charitable Endowments department taking action under the provisions of the Madras Hindu Religious and Charitable Endowments Act, hereinafter referred to as the Act. The authorities functioning under the Act felt that the affairs of the temple were mismanaged and so three trustees were appointed by the Assistant Commissioner, Hindu religious and Charitable endowments, Madurai, and they were defendants 5 and 6 and one Sinnu, who died subsequently. Defendants 1 to 4 refused to hand over possession of the temple and its properties to the said trustees, defendant 5 and 6, and preferred a revision petition to the Commissioner, Hindu Religious and Charitable Endowments and the same was dismissed on 13-12-1964. Thereafter defendants 5 and 6 filed o. A. No. 143 of 1954 for issue of a certificate to take possession of the temple and its properties and such a certificate was issued and on the basis of the said certificate, proceedings were initiated before the Additional First Class Magistrate, virudhunagar, for taking possession. Under those circumstances, two persons by name Marudhan and Sangili acting for themselves and as representatives of the families of Pallas living in Kottaipatti, now known as Gandhipuram Street, virudhunagar, filed O. S. 26 of 1957 on the file of the Court of the Subordinate judge, Ramanathapuram at Madurai, to set aside the order of the Deputy commissioner holding that the suit properties belonged to the suit temple and issuing a certificate to that effect. Defendants 1 to 4 also filed O. A. 38 of 1955 before the Deputy Commissioner, Hindu Religious and Charitable Endowments, tanjore, for a declaration that the suit temple is a private temple and not a public temple. The Deputy Commissioner by his order dated 18-4-1957, held that the suit temple is a public religious institution. Defendants 1 to 4 then preferred an appeal before the Commissioner, Hindu religious and Charitable Endowments, madras, and that appeal was dismissed on 11-2-1958. Thereafter, the aforesaid marudha and Sangili and another Alagu Kudumban for themselves and as representatives of the said family of Pallas filed another suit, O. S. 16 of 1958, on the file of the court of the Subordinate Judge, Ramanathapuram, at Madurai, to set aside the order of the Commissioner, holding that the suit temple is a public institution. In both the suits, defendants 5 and 6 filed written statements contesting the case of the plaintiffs therein. However, both the suits were compromised on 22-2-1960 and under the terms of the compromise, practically all the suit properties were conceded to belong to Pallar Podhu and not to the temple as such. The only concession that was made in favour of the temple in the compromise was that a sum of Rs. 750/-out of the income from the properties was to be spent for the benefit and the festivals of he temple. In addition to that, the plaintiffs, in the respective suits and defendants adjusted Rs. 5,000/-and Rs. 3,957/- respectively, said to be costs incurred by them in the suits and other proceedings from out of the income of the properties, which was deposited into the court by the Receiver. Decrees were passed in both the suits on the basis of the above compromise. the compromise decrees also provided that the suit properties should be handed over to A. G. Mariappan, the first defendant in the present suit and N. Arasappan, the fourth defendant in the present suit, on behalf of the said Pallar Podhu. Yet another suit, namely, O. S. 33 of 1960 on the file of the court of the Subordinate Judge, Ramanathapuram at Madurai, was filed for framing a scheme for the administration of the suit properties and in that suit also on the basis of consent of the parties, a scheme decree was passed. Neither the temple nor the trustees of the temple nor an officer of the Hindu Religious and charitable Endowments department was made a party to the said suit. In view of the conduct of defendants 5 and 6 in the two suits, namely O. S. 26 of 1957 and o. S. 16 of 1958, they were removed from the office of trusteeship and the present plaintiff was appointed as the sole trustee of the suit temple for a period of five years by the Assistant Commissioner in his proceedings dated 6-10-1960. It is thereafter the present suit was instituted for a declaration of the title of the temple to the suit properties, which are 30 items, and for recovery of possession of the same on behalf of the temple. The contention of the plaintiff was the decrees passed in the three suits, namely, O. S. No. 26 of 1957, O. S. 16 of 1958 and O. S. 33 of 1960, were collusive and also void as being hit by Section 43 of the Act and consequently they are not binding on the suit temple and its properties. Principally, on this ground the present suit was instituted for the reliefs referred to above. Defendants 1 to 3 filed a written statement putting forward a contention that the suit properties did not belong to the temple and they belonged to Pallar Podhu, who themselves managed the suit temple; that the decrees in the suits referred to above were not collusive decrees and they were valid decrees and that the plaintiff without praying for setting aside the decrees within the time prescribed by law could not straightway file a suit for a declaration of title of the temple to the suit properties and for recovery of possession thereof. They also put forward a contention that in view of the fact that a writ petition was pending on the file of this court, at that time, the suit could not be proceeded with and that the plaintiff himself had no right or authority to represent the suit temple in the present action. On the basis of these pleadings, the learned trial Judge framed the necessary issues and the issues so framed and subsequently recast are as follows:--

(2.) MR. A. K. Sreeraman, learned counsel for the appellants, advanced the following arguments before us-

(3.) AS far as the first argument is concerned, it is an admitted fact that the decrees in all the three suits were passed by consent of parties. In addition to this in O. S. 33 of 1960, there was a further infirmity, namely neither the temple nor the trustees of the temple nor an officer of the Hindu Religious and Charitable endowments Department was made a party to the suit Consequently, it can be held without any difficulty that the decree in O. S. 33 of 1960 cannot be said to be binding on the plaintiff or the suit temple. The position with regard to the decrees passed in O. S. 26 of 1957 and 16 of 1958, stands on a slightly different footing. To those suits, the suit temple itself was made a party and it was represented by defendants 5 and 6 that the plaintiffs therein purported to represent the entire pallar Podhu. As we have pointed out already, the decrees in those suits were passed on the basis of consent of the parties and the decrees stated that the suit properties did not belong to the suit temple, but belonged to Pallar Podhu and that the temple as such was not a public religious institution, but belonged to the Pallar podhu. The question for consideration is whether the said decrees can be said to be collusive and fraudulent ones, having regard to the stand taken by defendants 5 and 6 in the original written statements filled by them and the subsequent total and complete surrender they made in favour of the plaintiffs therein. Having regard to the terms by which each said purported to take a huge sum of money from the temple income, said to be representing costs and expenses incurred by them in the litigation, there can be no doubt whatever that the compromise decrees were not bona fide ones and they were collusive ones between the parties.