S. RAMASWAMY VELAR AND ANR. Vs. V. PIDARAN AND ORS.
LAWS(MAD)-1970-3-39
HIGH COURT OF MADRAS
Decided on March 18,1970

S. Ramaswamy Velar And Anr. Appellant
VERSUS
V. Pidaran And Ors. Respondents

JUDGEMENT

S.MAHARAJAN, J. - (1.) THESE two appeals are directed against the judgment of the learned Subordinate Judge of Madurai in O.S. No. 28 of 1961. In A.S. No 564 of 1963 the plaintiffs are the appellants, whereas in A.S. No. 634 of 1963 defendants 2 to 10 are the appellants.
(2.) THE suit out of which the appeals arise, was instituted by plaintiffs 1 and 2 for cancellation of the order dated 22nd November, 1960 of the Commissioner of the Hindu Religious and Charitable Endowments, Madras, in Appeal No. 36 of 1960 on his file and for a declaration that the plaintiffs are the hereditary trustees of three temples, namely, Karuppannaswami, Kannimar Amman and Ayyanar temples in Anaiyur Village, Madurai taluk.
(3.) THE Commissioner, Hindu Religious and Charitable Endowments, was not made a party to the action. Defendants 2 to 4, who were appointed by the Commissioner as trustees of Karuppannaswami temple, and defendants 5 to 7, who were appointed by the Commissioner as trustees of Kannimar Amman temple and defendants 8 to 10, who were appointed as trustees of Ayyanar temple, were however impleaded as party -defendants to the action. In paragraph 17 of the plaint the plaintiffs alleged that the appointment by the Commissioner of these defendants as trustees was illegal and void and could not bind the plaintiffs, who were the 'hereditary trustees of the temples. The defendants resisted the plaintiffs' suit on the ground that the plaintiffs were not hereditary trustees, that the order passed by the Commissioner was valid and not open to question, and (hat in any event the suit was bad for non -joinder of the Commissioner, Hindu Religious and Charitable Endowments. Issues were framed by the Court below, one of which related to the plea of non -joinder. The learned Subordinate Judge ought to have tried the issue regarding non -joinder as a preliminary issue and if he found that the suit was had for nonjoinder of the Commissioner, he ought to have given an opportunity to the plaintiffs to implead the Commissioner, and if the plaintiffs refused to implead the Commissioner, the Court might have proceeded to dismiss the suit. But unfortunately the Court below adopted a curious procedure. It tried all the issues together, and gave the findings that the plaintiffs were the hereditary exclusive trustees of the three temples in question, that the suit was bad for non -joinder of the Commissioner, Hindu Religious and Charitable Endowments, and that the order of the Commissioner was not liable to be cancelled because he had not been made a party. After recording these findings, the learned Subordinate Judge proceeded to grant a decree for a declaration that the plaintiffs are the hereditary trustees of the temple and dismissed the suit in other respects.;


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