MOOKKA VELAR Vs. BALUCHAMI AND ORS.

JUDGEMENT

(1.) THE appellant is the defendant in O.S. No. 445 of 1973 on the file of the Court of the District Munsif, Pararrakudi. The plaintiffs filed the suit for a permanent injunction restraining the defendant from interfering with the rights of the plaintiffs to be in joint management of the suit trust as joint hereditary trustees. The plaintiffs are three in number. The suit temple is known as "Vazhivitta Ayyanarswami Koil". According to the plaintiffs, it was a private temple founded by the ancestors of the plaintiffs during the 17th century and the properties were also endowed by the founder for the maintenance of the said temple. A trust was founded for the management of the said temple and its properties. After the death of the founder, his heirs were said to have been in management by hereditary succession as per the rule of primogeniture. The plaintiffs and the defendant are the descendants of the original founder. According to the plaintiffs, they have been the hereditary trustees of the said trust and they have been in joint management of the said temple as hereditary trustees. They claimed that in several Court proceedings, their right to manage the temple as joint trustees had been recognised. As the defendant claims to be in sole management of the said temple, the plaintiffs have filed the present suit for an injunction restraining the defendant from interfering with their right of joint management.

(2.) THE defendant resisted the suit stating that the plaintiffs had never been in management of the suit temple as joint trustees, and that the defendant had been recognised by the Department of the Hindu Religious and Charitable Endowment as the hereditary trustee of the suit temple. According to the defendant his adoptive father had been in exclusive management of the suit temple as the sole trustee, and after his death it is only the defendant who has been in sole management of the suit temple. Since he had been recognised by the Department as the hereditary trustee, he claimed to have been submitting the accounts to the Department, and paying contribution and auditor's fee. He pointed out to the fact that the suit temple is a public temple and as there is a dispute as to whether the plaintiffs are the hereditary trustees of the suit temple he contended that the civil Court had no jurisdiction to try the suit. According to the defendant, only the Deputy Commissioner has the jurisdiction to decide the question of hereditary trustees under Section 63 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. It was also pointed out that even, on the footing that the plaintiffs and the defendant were the co -trustees, there could not be any injunction, against a co -trustee.

(3.) THE plaintiffs appealed, and the appeal came up before the learned Principal Subordinate Judge of Ramanathapuram at Madurai. In the course of the appeal, I.A. No. 317 of 1975 was filed for the purpose of amending the plaint and incorporating the relief for declaration that they are the joint trustees and that they are in joint possession of the suit temple. This petition was opposed by the defendant on the ground that if the amendment was to be allowed, it would alter the fundamental character of the suit, and consequently it would have to be dismissed in limine.