K R SWAMINATHA AIYAR Vs. ARAMIER

JUDGEMENT

(1.) The plaintiffs brought this suit for a declaration that they and the 1st defendant were the lawfully appointed trustees of the temple of Sri Umamaheswaraswami in Thirumalam village of Mayavaram Taluk; and they prayed for a direction that the defendants 2 and 3 should be made to restore the office of trustee to them and for an injunction restraining them from interfering with the exercise by the plaintiffs and 1 defendant of their duties as trustees. They valued the relief asked for at Rs. 5,500. The basis of their title was the order of the Devasthanam Committee made in January, 1916, appointing the plaintiffs and 1 defendant as trustees. The 4 and 7 issues in the suit raised the question as to the Devasthanam Committee's jurisdiction and the rights of the plaintiffs derived from their order of appointment.

(2.) The lower Court, without deciding these important issues, dismissed the suit as not maintainable on the ground that the plaintiffs did not ask for possession of the temple and its properties, quoting the authority of Rathnasabapathi Pillai v. Ramaswami Aiyar (1910) ILR 33 M 452 : 20 MLJ 301. In my opinion, the Subordinate Judge should not have dismissed the suit upon this preliminary point without trying the other issues. In Kunj Behari V/s. Keshavlal Heralal (1904) ILR 28B 567 at 571, Sir Lawrence Jenkins, C.J., quotes Section 42 of the Specific Relief Act and points out that nothing is said about the dismissing of a suit in the proviso which is in these terms : " Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so." In the present litigation the plaintiff is asserting his right to an office of trust. He does not claim any proprietary interest in the temple. As I pointed out in the order of reference in Rajagopala Naidu V/s. Ramasubramania Aiyar it would be preposterous that a trustee, claiming only a right to administer a certain trust, should be compelled to sue for physical possession of all the trust properties against defendants who claim only a similar right of management and that he should be made to pay stamp duty calculated on the total value of the endowments of the trust, which were in that case valued at two lakhs of rupees. In the case of temples, owning very extensive and valuable lands, of which there are many in this Presidency, no one would undertake the duties of a public trustee if such a burden were placed on him before entering his office. In the present instance the plaintiffs, while claiming the restoration of the office to themselves and the 1 defendant, asserted in their plaint that the ownership of the temple was vested in the deity, that they had only a right of managing the temple affairs, and that the temple lands were in the possession of tenants who would attorn to whomsoever might be declared to be the lawful trustees. The 1 defendant set up the right of the villagers in contradistinction to the Devasthanam Committee's right to manage this temple. The 2nd and 3 defendants denied the right of the Devasthanam Committee to interfere in the affairs of this temple, denied also that the ownership of the temple vested in the deity, and set up a right of adverse possession as against the Devasthanam Committee. The lower Court omitted to decide issue 5 which relates to the claim of the defendants that the Committee's right, if any, had been lost by adverse possession. The maintainability of the suit must depend upon the allegations in the plaint, and these allegations have not been disproved by evidence. Rathnasabapathi Pillai V/s. Ramaswami Aiyar (1910) ILR 33 M 452 : 20 MLJ 301 relied on by the Subordinate Judge was a suit against the Devasthanam Committee by a plaintiff claiming to be a trustee to recover damages for wrongful dismissal. In his plaint he mentioned that the defendants 8 and 9 had illegally taken possession of the temple lands and leased out the fishery in the tank and collected rent. The plaintiff in that case having, for reasons best known to himself, combined two actions in one, namely one action against the Temple Committee for the restoration of his trustee's office and for damages, and a second action for the recovery of the trust properties against persons who had wrongfully dispossessed him of such property, was bound to ask for the relief of possession of the temple properties to which he asserted a present right of possession. On the allegations in the plaint in that suit it may have been right to require the plaintiff to add a prayer for possession of the lands and if he refused to do so, his suit might have been dismissed. But he was not bound to sue for possession of the lands before he was restored to office. If he had chosen to strike out from his plaint his statement as to the part played by defendants 8 and 9, he might have waited till he was restored to his office of trustee, and he might then have brought a separate suit on behalf of the trust to recover the trust properties which had been wrongfully alienated. The facts of the present case closely resemble those in Ramadoss V/s. Hanumantha Rao (1911) ILR 36 M 364 : 21 MLJ 952. In that case also it was stated in the plaint that the temple properties were in the possession of tenants who were ready to pay rent to whomsoever held the office of Dharmakartha, and the learned Judges, adopting the reasoning of Sir Lawrence Jenkins in Kunj Behari V/s. Keshavlal Heralal (1904) ILR 28 B 567, held that on the allegations in the plaint, which had not been traversed, the suit was maintainable and that the proviso to Section 42 of the Specific Relief Act was no bar to its maintainability. In my judgment, that case was rightly decided, although the difference between Rs. 10 and Rs. 2,600 in the plaintiff's valuation to the injunction does not really affect the question. I think that we should follow it, as it is in accordance with Kunj Behari V/s. Keshavlal Heralal (1904) ILR 28 B 567 which correctly expounds the effect of the proviso to Section 42 of the Specific Relief Act. The question whether this temple is under the control of the Devasthanam Committee or belongs to the villagers will have to be decided, also whether the right of the Devasthanam Committee has been lost on account of adverse possession by any of the defendants. Also it must be decided whether one or two trustees can act alone if the appointment was of three trustees and one does not accept the office. The appeal is allowed. The order dismissing the suit is set aside and the suit is remanded for trial on its merits. Costs of the appeal to be borne by the respondents (defendants 1 to 3). Costs in the lower Court to abide and follow the result of the suit. Appellants are entitled to refund of Court-fee on this appeal. Srinivasa Aiyangar, J.

(3.) I agree with the judgment of my Lord the Chief Justice. The question with regard to the maintainability of the suit as framed was tried originally by the learned Subordinate Judge as a preliminary issue. For some reason not clear on the record, instead of coming to a decision on the issue, he called upon the parties to proceed with the trial of the suit adducing evidence and ultimately, after the whole hearing was over, dismissed the suit on the preliminary ground originally raised regarding the maintainability of the suit itself, holding that it was not maintainable.