The defendants are the appellants herein. The plaintiffs have filed the suit under Section 70 of the Hindu Religious and Charitable Endowment Act, 1959 seeking the prayer which as follows:
a) declaring the plaintiffs trust as an endowment not attached by HR&CE act and may be pleased to set aside the order of Ist defendant and Commissioner dated 12.06.1987.
b) declaring that Panchukara Chettiar and Chlapuram Chettiar Community who are residing at Chatram Karuppur alone are entitled to be hereditary trustees of the plaintiff trust, and may be pleased to set aside the order of Commissioner, HR&CE passed in R.P.No.9/84 dated 12.06.1987.
c) to restrain the defendants by means of a permanent injunction restraining them from in any way interfere in the plaintiffs right,
d) and direct the defendants to pay to the plaintiffs the costs of this suit,
e) to grant such other reliefs as this Court deems fit and proper for this suit.
2. The said suit filed by the plaintiffs having been decreed, the appellants herein preferred the present appeal.
The case of the plaintiffs is as follows:
The plaintiffs are the hereditary trustees of Sri Swaminathasamy Devasthanan, Swamimalai, Abhisega Aradhanai Kattalai and Sri Srinivasa Perumal Temple, and Sri Anjaneyasamy Temple, Koranattu, Karuppur in Kumbakonam Taluk. The properties owned by the plaintiffs trust is a specific endorsement known as "ABISHEKA KATTALAI". It is the further case of the plaintiffs that the said endowment is a private endowment and therefore the same would not come under the provisions of the Act. Hence an application was filed in O.A.No.39 OF 1971 before the second defendant under Section 63(a) of the Act seeking an order declaring the said endowment as a private one. The second defendant has dismissed the said application. Similarly another application was filed in O.S. No.54 of 1970 before the second defendant by one D.Thangavelu Pathar and others under Section 64(1) of the Act seeking to frame a scheme. The said application was allowed by the second defendant and being aggrieved against the same an appeal was preferred before the first defendant and has dismissed the same and hence the present suit has been filed under Section 70 of the Act.
3. The case of the defendants is as follows:
It is true that two applications have been filed in O.A. No.54 of 1970 and O.A. No.39 of 1971 before the second defendant. It is also true that O.A. No.54 of 1970 has been ordered and O.A. No.39 of 1971 has been dismissed. However, the plaintiffs have not preferred any appeal against the order passed in O.A. No.39 of 1971 but only preferred an appeal against O.A. No.54 of 1970 which has confirmed by the first defendant. The further case of the defendants is that the present suit is not maintainable since the plaintiffs have not challenged the order passed in O.A. No.39 of 1971 and hence without challenging the same before the first defendant the present suit is not maintainable. It is further stated that the plaintiffs are claiming a relief which can only be given by the defendants under Section 63(b) of the Act. Therefore on that score also the suit is not maintainable. The Court below has framed the following issues.
(1) Is the endowments of the plaintiffs covered by HR& CE Act?
(2) Persons from Panchukara Chettiar and Cholapuram Chettiar are the hereditary trustees of the endowment?
(3) Is the plaintiffs entitled to get a decree to the effect that the endowment belongs to their community alone?
(4) Is the suit maintainable?
(5) What other relief the plaintiffs are entitled to?
Additional Issues:
(1) Is the suit maintainable in law?
(2) Is the cause of action changed?
(3) Is the plaintiffs barred from claiming relief?
4. On behalf of the plaintiffs three witnesses have been examined and Ex.A1 to Ex.A53 have been marked. On behalf of the defendants two witnesses have been examined and Ex.B1 to B18 have been marked. The Trial Court after examining the evidence both oral and documentary has granted a decree declaring the plaintiffs as hereditary trustees and the endowment is the one belonging to the community and also set aside the order of the first defendant dated 12.06.1987. Challenging the same the present appeal has been preferred by the defendants. The learned counsel for the appellants submitted that the suit is not maintainable since the plaintiffs have not challenged the order passed in O.A. No.39 of 1971 by the second defendant before the first defendant. Therefore the plaintiffs have accepted the order passed by the second defendant and hence thereafter filed the present suit challenging the order passed by the first defendant which in fact confirms the order passed in O.A. No.54 of 1970. In other words it is submitted that without filing an appeal against the order passed in O.A. 39 of 1971 the merits of the order passed in O.A. No.39 of 1971 cannot be challenged in a statutory suit filed under Section 70 of the Act. It is further submitted that the Trial court has no jurisdiction to grant the decree declaring the plaintiffs as the hereditary trustees.
5.According to the learned Additional Government Pleader the plaintiffs ought to have file an application under Section 63 (b) of the Act and only when such an application is dismissed by the second defendant and the first defendant a suit can be filed. Hence the learned Additional Government Pleader submitted that on the above said two grounds the suit is not maintainable. The learned Additional Government Pleader has also relied upon the judgment of the Hon'ble Supreme Court reported in 2004 6 SCC 497 (Commissioner, Hindu Religious and Charitable Endowments (Admn.), Madras and another vs. Vedantha Sthapna Sabha) to submit that to claim hereditary trustee only those persons who are covered by the modes of succession as mentioned in Section 6(11) of the Act alone can claim.
6. Per contra, the learned counsel for the respondents submitted that in view of the findings given by the defendants 2 and 3 that the plaintiffs are not hereditary trustees there is no other option except to file the suit. IT is further submitted that the evidence on record especially Ex.A1 to A2 would clearly show that the plaintiffs are managing the trust as a hereditary trustees and therefore the finding of fact given by the Court below will have to be sustained and the judgment and decree of the Court below will have to be upheld.
7. It is seen that before the second defendant two applications have been filed. One by the third parties in O.A. NO.54 of 1970 seeking to frame a scheme on the ground of mis-management by the plaintiffs and the other by the plaintiffs seeking to declare that the endowment does not come under the purview of the Act. The application filed by the third parties under Section 64(1) of the Act and the one filed by the plaintiffs under Section 63(a) of the Act were taken up together for hearing by the second defendant. The second defendant in turn has allowed the application filed in O.A. No.54 of 1970 and dismissed the application filed in O.A. No.39 of 1971. However an appeal was filed only against the order passed in O.A. No.54 of 1970 wherein a scheme was framed under Section 64(1) of the Act. While dealing with the said application the first defendant has specifically observed that in as much as the plaintiffs have not challenged the order passed by the second defendant in O.A. No.39 of 1971, there cannot be any grievance if the other appeal is proceeded on the footing that the endowment is a specific endowment coming under the purview of the Act. Therefore on the said footing the first defendant has upheld the order of the second defendant wherein three trustees have been appointed. It is seen that out of the three trustees two of them are from the communities represented by the plaintiffs and one from outside the community. In the said scheme it is stated that if no suitable person is available from the plaintiffs communities, then trustees can be appointed from the persons available from other communities.
8. On a perusal of the pleadings in the plaint as well as the prayer made in the plaint would show that what is challenged is the order passed in O.A. No.39 of 1971 by the second defendant which has become final and conclusive. As rightly argued by the learned Additional Government Pleader it is not open to the plaintiffs to challenge the said order. Even otherwise a reading of Section 6(18) would clearly show that the endowment is a specific endowment coming under the purview of the Act. In the present case there is no dispute that the temple in question is a public temple. Therefore there is no difficulty for this Court to hold that the endowment is a public endowment. More so the said issue cannot be agitated by the plaintiffs in a statutory suit under Section 70 of the Act. Hence this Court is of the opinion that the entire findings given by the Court below and the judgment and decree of the Court by declaring that the endowment does not come under the purview of the Act are liable to be set aside.
9. The learned Additional Government Pleader has also submitted that the Trial Court has also gone into the question whether the plaintiffs are hereditary trustees or not. According to the learned Additional Government Pleader the said question can be gone into by the Trial Court and the Trial Court has got no jurisdiction to go into the same. This Court finds that there is considerable force in the submission made by the learned Additional Government Pleader. The plaintiffs admittedly have not filed any application under Section 63(b) of the Act seeking to declare themselves as a hereditary trustees. Therefore such a plea or issue cannot be decided by the Civil Court which exercise the power under Section 70 of the HR&CE Act.
10. It is no doubt true that the plaintiffs did not have an opportunity to place their case to prove that they are the hereditary trustees. The second defendant has decided the matter since admittedly there was no application pending before him seeking the declaration as hereditary trustees under Section 63(b) of the Act. Therefore the second defendant considered the applications filed under Sections 64(1) and 63(a) of the ACt. Accordingly the first defendant has confirmed the order passed by the second defendant in so far as Section 64(1) of the Act is concerned. As mentioned above the entire pleadings and the discussions are with respect to the power exercised by the second defendant under Section 63(a) of the Act is concerned. Therefore the Trial Court has proceeded completely in a wrong way treating the suit as one arising under the proceedings initiated under Section 63(a) of the Act.
11. The learned counsel for the respondents submitted that even otherwise this Court can go into the validity of the order passed under Section 64(1) of the Act. On a perusal of the order passed by the Court below and after going through the pleadings this Court is of the opinion that the said request made by the learned counsel cannot be considered. The Court below has given a finding that the plaintiffs are hereditary trustees, such a finding and the judgment based upon the said findings are impermissible in law. The order has been passed under Section 64(1) based upon the dismissal of the application filed by the plaintiffs under Section 63(a) of the Act. It is further seen that the application under Section 64(1) of the Act has been filed by third parties and based upon that application the order has been passed by the second defendant has confirmed by the first defendant. Therefore this Court is of the opinion that the suit is also liable to be dismissed for non-joinder of proper and necessary parties since the applicants in O.A. No.54 of 1970 have not been made as parties.
12. However this Court finds that there is no bar for the second defendant to consider the application of the plaintiffs or anyone representing the plaintiffs filed under Section 63(b) of the Act. This Court finds that there is some force in the submission by the learned counsel for the plaintiffs since the issue as to whether the plaintiffs or anyone representing the plaintiffs are entitled to be hereditary trustees or not has not been decided so far. However the issue regarding the framing of scheme cannot come in the way of the plaintiffs or anyone filing an application under Section 63(b) of the Act seeking to declare themselves as a hereditary trustees. Hence this Court is of the opinion that as and when such an application is filed the second defendant will have to consider the same without reference to the order passed in O.A. No.54 of 1970 and appeal No.9 of 1984. If an order is passed in favour of the plaintiffs or anyone claiming through them, then it is open to file appropriate applications seeking modification of the scheme frame under Section 64(1) of the Act. It is needless to say that even in such a situation the defendants are to consider the same without reference to the earlier orders.
13. With the above said observations the appeal filed by the appellants are hereby allowed and the judgment and decree of the Court is set aside. No costs.
cs To The Subordinate Judge, Kumbakonam.