KUTTIKRISHNA MENON Vs. MMPURUSHOTHAMAN NAMBUDIRI

JUDGEMENT

(1.) These are appeals by defendant 1 in two connected suits, O.S. Nos. 19 and 20 of 1926 on the file of the District Munsif's Court of Pattambi. The suits were by a melcharthdar for redemption. The melcharths were granted by plaintiff 1 whose name was subsequently struck off, to his Anandravan, plaintiff 2, on 1 March 1925. The trial Court passed conditional decrees in both the suits, the condition being that the decree for redemption passed should stand only if a certain order of the Board of Commissioners for Hindu Religious Endowments, Madras, dated 21 April 1926, was set aside by the District Court. There was no doubt an application to set aside the order, namely O. P. No. 55 of 1927, on the file of the District Court of South Malabar, but that application was not prosecuted and was thereupon dismissed with the result that these second appeals have to be opposed only on the strength of the lower appellate Court's decrees which are free from the condition imposed by the trial Court. The condition was imposed by the trial Court because in its opinion the melcharths offended against the provisions of Section 72 of Madras Act 1 of 1925 which was in force at the time the melcharths were granted, since the sanction of the Board or the Committee was not obtained for them. The lower appellate Court did away with the condition because it was of opinion that Madras Act 1 of 1925 was itself ultra vires of the Madras Legislature, and that even otherwise the provisions of Section 72 did not apply to the present case because at the time the plaint melcharths were granted, there was no Board of Commissioners or Committee functioning to whom application could be made for sanction.

(2.) In Second Appeal the correctness of these findings of the lower appellate Court as well as of its findings in respect of the alleged necessity for the grant of the melcharths and the necessity for impleading the trustee of the temple to whom the properties belong has been attacked. As regards the latter two points, they may be dealt with briefly. The finding of the lower appellate Court to the effect that there was necessity for the melcharths cannot, in my opinion, be questioned in second appeal, as the question is one of fact and I see no reason to suppose that the learned Subordinate Judge misapplied the law in coming to his finding on this point. As regards the non-joinder of the trustee who was originally joined as plaintiff 1, though his name was subsequently struck off at the instance of plaintiff 2, melcharthdar, I am of opinion that the objection on the ground of nonjoinder is trivial and of no substance. I am not satisfied that he was a necessary party to the present suits, and it does not appear, moreover that the appellant has suffered any prejudice whatever by the trustee not continuing to be shown on the record as plaintiff 1. The other objections raised in the second appeals are of considerably greater importance. They are (1) whether Madras Act 1 of 1925 is ultra vires of the Madras Legislature and (2) whether the suit melcharths are invalid by reason of the provisions of Section 72 of that Act. As regards the first point the lower appellate Court relied mainly on the argument contained in a certain article published in 46 M L J 53 notes. In substance the argument is that the Act itself is ultra vires because the bill was at one stage remitted by His Excellency the Governor not to the Council which had passed the bill but to the next Council. The objection to the validity of this Act is thus an objection to the procedure followed by His Excellency the Governor in the course of the legislation. In my opinion no objections to the procedure followed by the legislature or any part of it in the course of any legislation can be entertained by Courts, and even if well founded such objections do not render the subsequent legislation ultra vires. What the Court has to do, when it is contended that a particular Act of the legislature is ultra vires is to look at the subject-matter of the Act and to see whether that subject-matter is included within the provisions which define the powers granted to that legislature by the Government of India Act.

(3.) The established principle is that jurisdiction has to be ascertained at the outset and not at the conclusion of the proceeding. It must be present before it can be said to have been misused. It has nothing to do with the propriety of methods, only with the area of power. The way a power is used, cannot logically be used as an argument to support the denial of the very existence of the power. It is not pretended that the subject-matter of Madras Act 1 of 1925 is beyond the competence of the Madras Legislature. The subject is within its competence and it is not contended that any provision, and in particular Section 72, is repugnant to any provision in the Government of India Act or in any other act of Parliament. The alleged defects in the procedure during the progress of the bill in the Legislature till it became an Act cannot, in my opinion, be relied upon for the purpose of deciding that the Act itself is ultra vires. Such an enquiry into the propriety of the various steps taken or adopted by the Legislature or any part of it during the progress of the legislation is hardly within the province of the Court. In any case that has no bearing in my opinion on the question whether the legislature has exceeded its powers in passing the particular Act. The question of power is entirely distinct from the question of procedure. The former affects the jurisdiction; the latter does not; and on this short ground I am of opinion that the contention that the Madras Act 1 of 1925 is ultra vires is without substance and must be dismissed. As regards the next point, the section itself is very clear. It is to the effect that: No mortgage and no lease for a term exceeding five years of any immoveable property belonging to any math or temple shall be valid or operative unless it is necessary or beneficial to the math or temple and is sanctioned by the Board in the ease of maths and excepted temples and by the Committee in the case of other temples.