S ALAGA PILLAI Vs. SDORAISWAMI PILLAI

JUDGEMENT

(1.) The application of the petitioners purported to be under Section 79-A of the Madras Hindu Religious Endowments Act. No evidence, documentary or oral, was placed on record, but the order of the Board, which the petitioners sought to set aside by their application, was made part of the pleadings. That order appointing Doraiswami Pillai, as one of the trustees till the minor, who was entiiled to that trusteeship, came of age, purported to be one passed under Section 42 of the Act.

(2.) No doubt, the correctness of an order of appointment passed under Section 42 as such cannot be challenged by an application filed under Section 79-A. But the question is whether the order complained of is one that infringes the provisions of Section 79 of the Act.

(3.) The application to the lower Court, which professed to be under Section 79-A, has to be treated as an application under Clause (3) of Section 79-A. Clause (3) can be invoked and the jurisdiction of the Court can be invoked only if there was a prior decision by the Board under Section 79-A, Clause (1). Section 79-A, Clause (1), itself refers to disputes with regard to any of the matters mentioned in Section 79. Merely because the order of the Board complained of purported to be one under Section 42 of the Act, it may not preclude a person aggrieved by that order from challenging the correctness or the validity of that order on the ground, that that order and the basis of that order were contrary to the provisions of Section 79. If the order of appointment was contrary to usage saved by Section 79, the validity of the order, it seems to me, could be questioned under Section 79-A, Clause (1), and an adjudication of that dispute by the Board invited. Once there is a decision of the Board under Section 79-A, Clause (1), Section 79-A, Clause (3) would come into play, and an application to set aside such an order of the Board would be competent. If I am to understand the order of the learned District Judge to mean that in no circumstances can the validity of an order passed under Section 42 of the Act be called in question even by invoking the provisions of Section 79 of the Act, I should express my dissent from such a view. In my opinion, if the basis of the appointment ordered undes Section 42 of the Act was contrary to the usage of the institution within the meaning of Section 79, the validity of that order could be challenged on that ground; and if a " dispute " arose as to the usage upon which the validity or invalidity of the order passed under Section 42 would depend, that dispute would be within the scope of Clause (1) of Section 79- A.