COMMISSIONER FOR HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS ANDHRA Vs. KASI NATTUKOTTAI NAGARA CHATRAM MANAGING SOCIETY

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree of the Subordinate Judge, Rajahimundry, declaring the title to the choultry known as "Nagara. Viduthi" at Aryapuram, Rajahmundry in favour of the plaintiff who is the managing society of that choultry. The appellant is the Commissioner for the Hindu Religious and Charitable Endowments, Andhra. The 1st respondent is the managing society represented by its authorised agent and the 2nd respondent is the Gurukul of Sri Marakata Vinn-yakaswamy temple situate in the precincts of the chatram, 2. The facts leading to this litigation maybe briefly stated: The building of Nagara Viduthi was purchased on 25-8-1920 by the plaintilf-society who is the 1st respondent herein. It consists of a large terraced building with a spacious compound measuring about 2,400 Sq. yards. It serves as a private lodge; and boarding and Other amenities. t0 the members of the Nattukottai Chettiar Vysya Community who visit the place are provided. In a place adjacent to this choultry, a temple which occupies 15 x 20 has been built and the idol of Sri Marakatha Vinayakaswamy has been installed in it. The Gurukul who performs and attends to lighting and formal Nivedyam and cooks rice and offers it to the deity is paid Rs. 7.00 per month for his services and expenses.About Rs. 15.00 is also spent on the temple-and this expenditure is treated as part of the establishment charges of the chatram. In 1934 the then managing trustee of the Chatram presented an application to the Hindu Religious Endowments Board praying for a declaration that the temple of Sri Marakatha Vinayakaswamy Varu is a private one and therefore is exempt from any contribution to the Board. On 3-1-1935 orders under Section 84 of the Hindu Religious Endowments Act were passed in O. A. No. 128 of 1934 to the effect that that temple with the choultry is a public institution as defined under clause 12 of Section 9 of the Madras Act II of 1927 and that the Act is applicable to it and to its endowments.A notice D/- 14-6-1946 was issued to the Gurukul or trustee of the temple calling on him to pay contribution at the rate of Rs. 30.00 for each fasli for three faslis and also audit fees, totalling to Rs. 105.00. The management of the chatram filed on 29-7-1946 objections thereto which questioned the levy as illegal and improper. But these objections were rejected on 12-9-1946 and thereupon the contribution as demanded was paid on 1-10-1946. Thereafter as a preliminary to the step to obtain an effective and complete adjudication in regard to the right of the Hindu Religious Endowments Board to levy contribution, notice was issued to the Board On 25-2-1947 by the plaintiff under Section 80 of the Code of Civil Procedure.As in spite of the notice the Board continued to levy the contribution, the plaintiff filed O. Section No. 164 of 1948 on the file of the City Civil Court, Madras only against the Board but that suit was dismissed on the ground of want of jurisdiction. A.A.O. No. 589 of 1949 filed in the High Court of Madras was also dismissed on 10-4-1951, on the same ground. The Board thereafter persisted in issuing demands for contribution in successive faslis. The managing society of the Chatram had thereupon to file the present suit on 2-1-1953 in the Court of Subordinate Judge, Rajahmundry praying for declaration that the choultry and the temple belong to the plaintiff (1st respondent).The 1st defendant who is the 2nd respondent herein remained ex parte and the suit was contest ed by the appellant only. By the time the suit which gave rise to this appeal had been filed, the Board disappeared and is replaced by the Com missioner, and hence the suit was filed by the 1st respondent against the appellant. The suit is resist ed by the appellant on the ground that in O. A. No. 128 of 1934 the Board declared the temple with the choultry as a public institution and that as there was no application filed as provided un der Section 84(2) of the Hindu Religious Endowments Act, there can be no adjudication by a civil court.The bar under Section 70(2) of the Act is also pleaded in regard to the levy of contribution. Objection is taken to the filing of the suit on the ground that Section 14 of the Limitation Act would not apply, as the plaint now presented is not the same as that which was returned by the City Civil Court, Madras, and the cause of action for the suits and prayers therein are different. The want of a fresh notice under Section 80 C.P.C. to the Commissioner is also pleaded. It is pointed out that the Board alone was made party to the earlier suit in the City Civil Court and the appellant was not a party to that suit. Yet another objection that there is no proper representation of the plaintiffs society, was also taken. On the pleadings, the necessary issues have been framed; and the trial court declared the title of the plaintiff society to the choultry but excluded the area occupied by the temple. 3. The same contentions raised in the trial court are reiterated in this appeal. But the question of proper representation of the plaintiff-society has not been pressed before us. 4. The main question for determination in this appeal is whether the choultry and the temple constitute a public institution as held in O. A. No. 128 of 1934 by the Hindu Religious Endowments Board, or whether the conclusion reached by the lower court that the choultry is a private one is correct. It is contended for the appellant by Mr. Sreerama Sastry that when there is an adjudication by the Board under Sub-section (1) of Section 84, the affected party-trustee can question it only by filing an application in the court under Sub-section (2) to modify or set aside that decision within one year and that since the plaintiff has not taken advantage of this provision, the decision of the Board has become final.It is no doubt true that the plaintiff has not resorted to the remedy which was available to him as provided under Sub-section (2) of Section 84. But it has to be observed that Ex. B-2 D/- 3-1-1935 which is in order of the Board in O. A. No. 128 of 1934 has not only concluded that the temple "is a public institution within the definition of the term in Clause (12) of Section 9 of the Hindu Religious Act" but has gone to the extent of making that decision apply to the choultry also on, the ground that the choultry is attached to the temple. Even on the contentions raised before the Board in O. A. No. 128 of 1934, it could not have been urged that the choultry formed a "Religious Endowment". We have now to see whether any claim to a religious endowment, such as this choultry is alleged to be, could be a matter for adjudication under Sub-section (1) of Section 84. That section in Act No. II of 1927 reads:--