HIS HOLINESS SRILA SRI VYTHILINGA PADARA SANNADHI AVERGAL, ATHINAKARTHAR OF THIRUVADUTHURAI ATHINAM Vs. TEMPLE COMMITTEE THROUGH ITS PRESIDENT ISSUBRAMANIA PILLAI

JUDGEMENT

(1.) The plaintiff sued to establish his right as hereditary trustee of the Sri Papavinasaswami Temple at Vikramasingapuram village in Ambasamudram Taluk of the Tinnevelly District and for certain consequential reliefs. The plaint alleges that the temple committee, the 1 defendant, in disregard of the plaintiff's hereditary right as trustee, had held that he had vacated office under Section 51 of the Madras Hindu Religious Endowments Act and had appointed the 2nd defendant as sole trustee of the temple. The learned Subordinate Judge of Tinnevelly has found that a suit of this character is barred by the provisions of the Act above referred to, and this is the sole question which we have to decide in appeal.

(2.) There is ample authority for the view that a suit to establish a personal right of this character does not fall within the terms of Section 92 of the Code of Civil Procedure. It is true that in Subramania Pillai V/s. Krishnaswami Somayajiar (1919) I.L.R. 42 M. 668 a suit by two out of three trustees of a temple for a declaration that the appointment by the devasthanam committee to fill a vacancy in the third trusteeship was invalid was held to fall under that section; but this decision was not approved in the Full Bench case, Appanna Poricha V/s. Narasinga Poricha (1921) I.L.R. 45 M. 113 : 41 M.L.J. 608 (F.B.) in which it was held that the class of suits contemplated in Section 92 was one representative in character, one or more persons being enabled by it to sue on behalf of the public and sanction being required as a precaution against wasteful litigation. The learned Judges who decided that case referred with approval to the elaborate judgment of Woodroffe, J., in Budree Das Mukim V/s. Chooni Lal Johurry (1906) I.L.R. 33 C. 789 where the principle underlying the section has been explained and illustrated. So far as a suit is brought by a plaintiff in his individual capacity as a trustee to enforce his individual claim to be such trustee, it does not lie within the scope of the section. Mr. T.M. Krishnaswami Aiyar, who recognises that the authority of the Full Bench case is fatal to his position upon this point, contends that it has been superseded by the judgment of the Privy Council in Abdur Rahim V/s. Mahomed Barkat Ali (1927) L.R. 55 I.A. 96 : I.L.R. 55 C. 519 : 54 M.L.J. 609 (P.C.), but I cannot find that that decision does more than set at rest the question of the mandatory nature of the section, it being, decided further that Sub-section (2) does not extend the scope of Sub-section (1). A reference to the arguments on behalf of the respondents in that case will show that it was conceded that a suit in respect of a private right, where no breach of trust is alleged, may be maintained without the sanction of the Advocate-General.

(3.) Turning now to the Madras Religious Endowments Act, we have to see whether such a suit is barred by any of its provisions. The Act provides for the institution of suits, or for reference to a Court, in a number of circumstances--see, for instance, sections 55 (4), 57, 63, 65 and 67--and then ensues the more general Section 73. It is admitted that if the suit is barred it must be by the terms of this last section. It runs as follows: (1) The Board or Committee having jurisdiction over any math or temple or any person having interest and having obtained the consent of the Board may institute a suit in the Court to obtain a decree- (a) appointing or removing the trustee of a math or excepted temple, (b) vesting any property in a trustee, (c) declaring what proportion of the endowed property or of the interest therein shall be allocated to any particular object of the endowment, or (d) granting such further or other relief as the nature of the case may require. (2) Sections, 92 and 93 and Rule 8 of Order 1 of the First Schedule of the Civil P. C., 1908, shall have no application to any suit claiming any relief in respect of the administration or management of a religious endowment and no suit in respect of such administration or management shall be instituted except as provided by this Act.