SAMINATHA PILLAI Vs. SUNDARESA PILLAI

JUDGEMENT

(1.) In this case whatever view we might be inclined to take of the matter, if it came before us as res integra, we are bound by the decision of Srinivasa Aiyangar, J., in Civil Revision Petition No. 347 of 1915, which was not appealed against. He held that Exhibit A did not evidence an enforceable contract, and that the suit must be treated as one by the general trustee of a temple to enforce the obligation of a subordinate trustee or kattalaidar."

(2.) The only question then is, whether, viewed in this light, the suit is maintainable; and we are forced to the conclusion that it is not. The relief claimed is the recovery of the balance of amount due by defendant under the terms of his trust and not paid by him to the Gurukkal of the temple. (The breach of trust is denied.) If the relief is claimed as the amount of misappropriation, the amount is not ascertained and would have to be determined by enquiry in the suit; and this brings the case within the mischief of Section 92 of the Civil Procedure Code, Clause (d), and the suit is bad for want of sanction required by that section. If it be sought to recover the amount by way of damages, then the suit falls under Section 14 of the Religious Endowments Act, and is bad for want of the sanction required by Section 18 of the same. The only other ground on which it could be maintained is that furnished by Section 69 or 70 of the Contract Act; and this appears to have been given up in the District Munsif s Court, vide paragraph 6 of his judgment.

(3.) It was argued that the suit, being one by a temple trustee, was exempt from the retrictions imposed by Section 92 of the Code of Civil Procedure and Section 18 of the Religious Endowments Act; and reliance was placed on Nellaiyappa Pillai v. Thangama Nachiyar 21 M. 406 : 8 M.L.J. 119 : 7 Ind. Dec. (N.S.) 644. This judgment was pronounced under the old Code of Civil Procedure, in which no such provision as Clause (2) of Section 92 of the present Code is found; and it has been held in a recent case of this Court Subramania Pillai v. Krishnaswami Somayjair 53 Ind. Cas. 605 : 42 M. 668 : (1919) M.W.N. 522 : 26 M.L.T. 143, that the terms of Section 92 of the Code of Civil Procedure applied to a suit by trustees; there is no reason why such a suit should be held to be exempted from its restrictive provisions. The same reasoning would apply to the provisions of the Religious Endowmets Act.