(BAVA C ) VYTHILINGA MUDALIAR Vs. GRAMANJA MUDALIAR

JUDGEMENT

(1.) This is an application to revise the order of the 2nd Class Magistrate of Tiruvalur passed under Section 144, Criminal P.C. The main contention of Mr. Muthukrishna Aiyar for the petitioner is, that the respondent was not in possession of the Ulthuraikattalai and his client who was in possession and management of the Ulthurakattalai for two years since the death of Somasundara Mudaliar, should not have been restrained from conducting the festival. The respondent was appointed trustee by the Religious Endowments Board by an order dated 21st February 1928. He communicated his appointment to the petitioner and asked him to co- operate with him in the conduct of the festival. The petitioner replied on 3 March 1928, that he could not recognize the appointment of the respondent as trustee and inasmuch as there was no vacancy in hereditary trusteeship and this particular appointment, therefore, could not be a valid one; and secondly, he could not take part in the management of the festival and Ulthuraikattalai. Whereupon the respondent applied to the Magistrate on 6 March 1928 for an order under Section 144, Criminal P.C. He says in para. 6 that he entered upon his duties as trustee, and communicated with Bava C. Vaithilinga Mudaliar, the petitioner, to co-operate with him in the management. From the petition it is clear that the respondent did not take possession of any property belonging to the Ulthuraikattalai, nor was he in possession of anything that belonged to the Kattalai.

(2.) Mr. Viswanatha Sastri for the respondent contends that he did not enteupon upon his office, that possession need not be necessarily physical possession of the Ulthuraikattalai properties and that the respondent may be deemed to be in possession of the office. The mere appointment of a person to office cannot give him possession of the trust properties. The petitioner was in possession of the Ulthuraikattalai and the properties belonging thereto for at least two years. His possession ought not to have been interfered with by a criminal Court. It is unnecessary in this connexion to draw attention to the contentions of the parties as to whether the office to which the respondent was appointed a hereditary office or not. One side. says it is and the other side says it is not. If the office is hereditary, the Religious Endowments Board would have a right to appoint a trustee. If it is not Section 42, Hindu Religious Endowments Act, would not apply. Seeing that the petitioner objected to the appointment of the respondent on the ground that the Board had no power to appoint him and seeing that there is a bona fide dispute between the parties, it is not proper for criminal Court to pass an order under Section 144, Criminal P.C. If the respondent was obstructed in taking up the management or possession of the properties belonging to the Ulthuriakattalai his course was to apply under Section 78, Hindu Religious Endowments Act. He has not chosen to do so. From the order of the Magistrate it appears that he relied entirely upon the fact that the Religious Endowments Board appointed the respondent as trustee and, therefore, he ought to be allowed to celebrate the festival and the petitioner who was not willing to cooperate with him should be restrained from obstructing the respondent in the conduct of the festival.

(3.) The Sub-Magistrate has entirely misconceived his powers under Section 144, Criminal P.C., when he passed his order. In this connexion, it is necessary to observe that in disposing of applications of this kind where a person simply wants to enforce his right, the criminal Courts ought not to lend him their aid. under Section 144, Criminal P.C. The festival is now over. The order of the Sub-Magistrate was confirmed by the Additional Magistrate. Both the orders are set aside.