R. THATHA DESIKA THATHACHARIAR Vs. THE DEPUTY COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS (ADMINISTRATION) AND ORS.
LAWS(MAD)-1970-7-28
HIGH COURT OF MADRAS
Decided on July 06,1970

R. Thatha Desika Thathachariar Appellant
VERSUS
The Deputy Commissioner, Hindu Religious And Charitable Endowments (Administration) And Ors. Respondents

JUDGEMENT

K.VEERASWAMI,.J. - (1.) THE appeal is directed against an order of Alagiriswami, J. who dismissed the appellant's petition under Article 226 of the Constitution to forbid the Deputy Commissioner from taking steps under Section 64(5) of Madras Act (XXII of 1959) in respect of the Devarajaswami Temple at Kancheepuram. The objection that was raised before the Deputy Commissioner as to his jurisdiction to modify the scheme settled by Veeraraghava Thathachariar v. Srinivasa Thathachariar : (1912) 23 MLJ 134, and modified by Wadsworth and Patanjali Sastri, JJ., in 1941, was overruled and Alagiriswami, J., thought that it was the right view to take.
(2.) THE suit which led to the appeal in Veeraraghava Thathachariar v. Srinivasa Thathachariar: (1912) 23 MLJ 134, was one under Section 539 of the Code of Civil Procedure, 1882. But the new Code of 1908 had come into force by the time the scheme was settled by Abdur Rahim and Sundaram Aiyar, JJ., in Veeraraghava Thathachariar v. Srinivasa Thathachariar : (1912) 23 MLJ 134. In that scheme, it was provided that three of the trustees for the Devasthanam should be members of the eastern branch and two of the western branch of the family of Koti Kannikadanam Sri Thatha Desikan. In 1941, Wadsworth and Patanjali Sastri, JJ., modified this scheme by providing for only three trustees, of whom two were to be elected from the family of Thatha Desikan and one to act as the Executive Trustees to be appointed by the Hindu Religious and Charitable Endowments Board, as it then was. The Deputy Commissioner, in the impugned proceedings, sought to amend the scheme in certain particulars in order to bring it in accord with the provisions of Madras Act (XXII of 1959). Objection was taken to his jurisdiction on the ground that the scheme was not within the purview of Section 64(5), but unsuccessfully, both before the Deputy Commissioner, Hindu Religious and Charitable Endowments, as also before Alagiriswami, J. The same contention is reiterated in the appeal before us.
(3.) SECTION 64(5)(a) of Madras Act (XXII of 1959), so far as it is material for the present purpose, is to the effect that the Deputy Commissioner may, by order, modify or cancel any scheme in force "settled or modified by the Board under the Madras Hindu Religious and Charitable Endowments Act, 1926 (Madras Act II of 1927)" or "any such scheme in force deemed to have been settled or modified by the Court under Clause (a) of Sub -section (2) of Section 118". The objection of the appellant is two -fold ; (1) that the scheme settled by Veeraraghava Thathachariar v. Srinivasa Thathachariar : (1912) 23 MLJ 134 could not be deemed to be one settled under Madras Act II of 1927 and (2) because the scheme as originally settled fed been modified in 1941, it could not, therefore, be regarded as a scheme settled or modified by the Court under Clause (a) of Sub -section (2) of Section 118. As regards the first ground, it is squarely covered by the judgment of this Court in O.S.A. No. 43 and 53 of 1961. Section 75 of Madras Act II of 1927 stated that where the administration of a religious endowment was governed by a scheme framed under Section 92 of the Code of Civil Procedure, 1908, such a scheme should be deemed to be a scheme settled under Madras Act II of 1927 and it might be modified or cancelled in the manner provided in that Act. We mentioned that the suit resulting in the scheme settled by Veeraraghava Thathachariar v. Srinivasa Thathachariar (1912) 23 MLJ 134 was instituted prior to 1908, but actually the scheme was settled only in 1912 in the appeal that was disposed of by this Court. The contention was that such a scheme would not be within the purview of Section 75, for the simple reason that the scheme, though settled in 1.912, must be taken to have been settled under the Code of Civil Procedure , 1882. This contention was repelled in O. S. A. Nos. 43 and 53 of 1961. The learned Judges observe: No doubt, according to that principle (the one embodied in Section 24 of the General Clauses Act), the scheme framed under Section 539 of the Code of 1882 must be deemed to have been framed under Section 92 of the Code of 1908. The argument on behalf of the appellant is that Section 75 only mentions a scheme framed under Section 92 of the Code of 1908 and not a scheme deemed to have been settled under that section. We do not think that there is any warrant for making such a distinction. In our opinion, the expression 'any scheme settled under Section 92 of the Code of Civil Procedure, 1908,' also includes a scheme settled under the corresponding provisions in the earlier Code, which should be deemed to be a scheme settled under Section 92 of the Code of 1908.;


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