R SESHASAYEE AYYANGAR Vs. PUNA RENA GOVINDA PILLAI

JUDGEMENT

(1.) These Civil Revision Petitions raise two important questions: (1) as to the scope of Section 78, Religious Endowments Act and (2) as to the applicability of Order XXI, Rules 97, 98 and 99, Civil Procedure Code, to a proceeding under that section. A scheme was settled in September 1927 by the Religious Endowments Board in respect of the temple in question under Section 57 of the Act. In virtue of that scheme, the petitioner became the trustee and applied to the District Court under Section 78 against the ex-trustee (who was the sole respondent to the petition) for being put into possession of the property. On March 30, 1929, the District Judge made an order granting the petitioner's request. In spite of that order, he was unable to obtain actual possession of either the temple or its properties, by reason of the resistance offered by two persons, Govinda Pillai and Veeraraghava Ayyanger. Thereupon he applied for delivery as against them, complaining of the obstruction offered and the question that was raised was, whether it was within the competence of the Court to hold an inquiry and decide either in favour of the petitioner or of the obstructors. The decision of the lower Court, as I understand it, is, the moment an adverse claim is put forward by a third parly, the Court's power comes to an end and the trustee must bo directed to enforce his remedy by filing a regular suit.

(2.) This view is totally opposed to the plain meaning of the section, which in terms enacts that when resistance is offered, the Court may on application by the trustee, order the property to be delivered to him. It must be observed, that the section is not limited to the obstruction on the part of the ex-trustee alone: but the words are general and apply equally as much where the obstruction is by a third party as when it proceeds from the ex-trustee. Let us suppose that the resistance offered at the very outset is by a third party and it is as against him that the trustee is obliged to file an application in the first instance. Can it be said that the Court, under the wide terms of the section, has no power to make the necessary inquiry? I think not but from the fact that the Court has such power, it does not follow that it is bound to exercise it. The word used in the section being "may," I think that the proper construction is, that the Court has a discretion, that is to say, on the particular facts of each case, it must decide whether it will enter on an investigation or not. If the adverse claim put forward is of a bona fide nature or if difficult and complicated questions have to be gone into, the Court may properly refuse to make an inquiry. I agree with the observations of Krishnan Pandalai, J. in this respect in Rami Reddi V/s. Sriramulu . Next, if the obstructor is the ex-trustee himself getting up an adverse claim, that the case is even stronger, goes without saying. The object of the section, as its very words show, is to enable a trustee to obtain possession when he is resisted in or prevented from obtaining it. Generally speaking, it is not likely that resistance will occur when the claim is admitted and I am not prepared to hold that the legislature intended that the Court should have no power of deciding just when its intervention would be most needed. Again, as Curgenven, J., observes in Guruvammal V/s. Arumuga Padayachi 136 Ind. Cas. 769 : A I R 1932 Mad. 164 : 34 L W 989 : (1931) M W N 1204 : 61 M L J 894 : Ind. Rul. (1932) Mad. 305, the Court performs a judicial and not an administrative function under Section 78 and a contention that deprives the Court of every vesting of judicial power must be rejected. But the respondents rely upon Vemuri Subramanyam Garu V/s. Avanigedda Subbayi , where it is observed: It seems to me that Section 78 was intended to apply only to the admitted endowments and it is not intended that the District Court should enter into questions of title.

(3.) I must, with great respect, dissent from this view. The respondents Counsel next seeks to find support in an observation of mine in Civil Revision Petition No. 1031 of 1927 for his contention negativing the Court's power, but it is perfectly clear that the words I used there, are not in the least capable of this meaning. I quote my words: Now, turning to the house, Mr. Venkataramana Kao, for the trustee (the petitioner before us) attempted to argue that the Board decided, while settling the schemes, that, the house belonged to the temple and that on that ground the Court should make an order under Section 78 directing delivery. It is impossible therefore on the ground taken by the learned Counsel for the trustee to allow the application in respect of this item.