M.M.ISMAIL, J. -
(1.) THE legal representatives of the deceased first defendant in O.S. No. 456 of 1960 on the file of the Court of the District Munsif of Kancheepuram are now the appellants before this Court. The suit properties were endowed for the purpose of performing the Uchikala Kattalai and general pooja in the Sri Katchapcswaraswamy temple. One Pandaram family was the kattalai trustees in respect of the suit properties, and Ekambaram Pandaram who was the kattalai trustee at the relevant time, mortgaged the suit properties in favour of the father of the first defendant in the suit, on 9th September, 1919 under Exhibit B -1. The trustees of the temple filed O.S. No. 224 of 1937 on the file of the Court of the District Munsif of Kancheepuram for a declaration that the alienations effected in respect of the temple properties and Kattalai properties were not binding on the temple, and for recovery of possession of the same. One such alienation covered in that suit was Exhibit B -1, dated 9th September, 1919. The Court in O.S. No. 224 of 1937 came to the conclusion that the properties were kattalai properties, that the alienations were not valid and binding; but the temple as such was not entitled to recover possession of the property, and it was only the kattalai trustees who were entitled to be in possession of the properties. So far as Exhibit B -1 was concerned, the Court expressly pointed out that, being a mortgage unaccompanied by possession, no finding was necessary with regard to delivery of possession. Thereafter, O.S. No. 5 of 1943 on the file of the Court of the District Judge, Chingleput, was filed under Section 73 of the Madras Hindu Religious Endowments Act (Madras Act II of 1927), and in that a scheme was framed, and a trustee called Sri Katchapeswara Uchikala and General pooja kattalai trustee was appointed and he was authorised to have possession of all the kattalai properties. The decree in that suit is marked as Exhibit A -1 in this case. The third defendant in the suit (O.S. No. 456 of 1960) was appointed as the kattalai trustee under the scheme on 26th June, 1947 by virtue of the final decree proceedings in the said suit which was marked as Exhibit A -3 in the present suit. Subsequent to these proceedings, the first defendant who is the son of the mortgagee under Exhibit B -1, filed O.S. No. 40 of 1942 on the file of the Court of the Subordinate Judge, Chingleput on the basis of Exhibit B -1 and brought the property to sale and purchased it himself. After the first defendant purchased the property and took delivery of the same, the third defendant herein filed an application under Order 21, Rule 100 of the Code of Civil Procedure, for redelivery of the properly contending that neither the mortgage nor the sale was binding on the Kattalai. However, that application was filed three days after the period of limitation expired for the same, and therefore he filed an application to excuse the delay. However, the Court declined to excuse the delay, and the application for redelivery of possession was also dismissed. It is after all these events, the present suit was instituted by the Executive Officer of the temple for recovery of possession of the suit properties putting forward the contention that the mortgage and the sale were not binding on the temple and the kattalai, and the temple is entitled to recover possession of the properties. The learned District Munsif by his judgment and decree, dated 30th October, 1962, decreed the suit, and the same was confirmed by the learned District Judge of Chingleput, on appeal on 14th December, 1964, in A.S. No. 108 of 1963. Hence the present Second Appeal.
(2.) THE principal question that is argued before me is that in the light of the judgment in O.S. No. 224 of 1937 as well as in the light of the appointment of a special trustee in O.S. No. 5 of 1943, the temple trustee has no right to sue for recovery of possession of the property and the only person entitled to recover the same was the special trustee appointed under the scheme in O.S. No. 5 of 1943, namely, the third defendant herein, and that defendant cannot any longer file the suit because he has not filed the suit within the period of limitation prescribed for the purpose of the suit under Order 21, Rule 103 of the Code of Civil Procedure, after the dismissal of his application for redelivery of possession. Though the Courts below have not considered this question from this point of view, none the less they took the view that the temple trustee had a right to recover possession of the properties in question. The question being purely one of law from this point of view, it is necessary to refer to decisions of this Court.
(3.) IN an early decision of this Court in Subramania Iyer v. Nagarathna Naicker : (1910) 20 MLJ 151 , the Court pointed out that in a suit by the worshippers of a temple to have the alienation of trust property by some of the trustees declared invalid and for possession to the trustees, the proper decree to be made, if the Court be of opinion that the alienation is invalid, is to decree possession to those trustees, and the trustees need not be referred to a separate suit for the purpose. The reasoning of the learned Judges was that once the alienation is declared to be invalid, the person in possession of the property is not entitled to be in possession of the same and in a properly framed suit, the person entitled to possession can recover possession of the same from him, and if so, there is no justification whatever to dismiss the suit of the worshipper and to allow the trustees to file a separate suit for possession. The sum and substance of the decision is that even a worshipper is entitled to maintain a suit for a declaration that the alienation of the temple properties is not valid and for recovery of possession thereof, even though the Court will pass a decree for recovery of possession only for the benefit and on behalf of the temple. In Ahmed Kutty v. Ayithraman Kutty : AIR 1937 Mad 819 , this Court took a similar view. This Court pointed out that when there is a lawful trustee for an institution, he is the person competent to institute a suit in relation to the property of the institution, to take the necessary steps for safeguarding and preserving it and to eject a trespasser and recover possession thereof for the trust, but the recovery of the property is only for and on behalf of the institution which he represents; but where a trustee has alienated the trust property and therefore would not proceed to recover possession of the same or has disabled himself otherwise from maintaining a suit in respect thereof or declines to institute, it cannot be said that the institution is without a remedy; the worshippers, who are the beneficiaries entitled to participate in the benefits of the institution, are entitled to maintain a suit for preserving the trust property or restoring the property to the trust either by instituting a suit for declaration or for an injunction or even for possession; but whether the worshippers are entitled to claim all or any of the reliefs which a trustee is entitled to do in a properly framed suit would depend upon the circumstances of each case; it is desirable and necessary to make the trustee a party to the suit, and where he is made a party it is open to the Court to mould the relief as the circumstances may require ; if the suit is one brought for possession by the worshippers, the Court can, after declaring the property to be trust property and setting aside the alienation, direct delivery of possession to the trustee.
Alagiriswami, J. had occasion to consider this question in Amir Jan v. Shaik Sulaiman Sahib : (1968) 2 MLJ 559 , and stated that the worshippers are entitled to maintain a suit for preserving the trust property or restoring the property to the trust either by instituting a suit for declaration or for an injunction or even for possession, and even if the suit is one brought for possession by the worshippers, the Court can after declaring the property to be trust property and setting aside the alienation, direct delivery of possession to the trustee. The same learned Judge had to consider a question very near to the present one in Kariyan Chettiar v. Rangia Goundar : (1969) 1 MLJ 340 . In that case, the trustee appointed for the temple filed a suit for recovery of possession of the property endowed for performing poojas and rathotsavams of the temple Devasthanam. The endowed property was alienated, and the alienee put forward the contention that the temple trustee was not entitled to maintain the suit since the property was endowed only for a Kattalai. The learned Judge held that '' even apart from these considerations, it is well established that any worshipper of a temple can institute a suit to recover the temple property which has been wrongly alienated by a trustee." It is on this basis, the learned Judge came to the conclusion that the suit instituted by the temple trustee for recovery of possession was maintainable in that case.;