- (1.)Two trustees of a certain charitable and religious trust sued their co-trustee for removal and for accounts in the District Court of Madura. The learned District Judge framed two preliminary issues with the first of which only we are here concerned. It runs thus: "Whether the suit is maintainable under Section 92, Civil Procedure Code, or under Section 73 of the Madras Act II of 1927 - This civil revision petition has been preferred by the defendant against an affirmative finding upon this issue.
(2.)It is objected that a decision upon a preliminary issue relating to jurisdiction is not open to revision under Section 115 of the Code of Civil Procedure. The familiar argument in favour of revision is that if the petitioner is successful, the trial of the rest of the suit would be saved, and the special objection to it is that if the petitioner waits until the suit has been disposed of, he will have a right of appeal. The subject has come up most frequently in connection with Court-fees and a question of this kind was dealt with by a Bench of this Court in Kulandai Pandichi v. Indram Ramaswami Pandia Thalavan 108 Ind. Cas. 539 : 51 M. 664 : 27 L.W. 286 : A.I.R. 1928 Mad. 416 : 55 M.L.J. 345. The argument based on the eventual alternative of an appeal was considered but was not deemed of sufficient weight to preclude revision. Two other reported cases relate to a preliminary issue of jurisdiction, one decided by Krishnan, J., Janardhanan v. Verghese 87 Ind. Cas. 113 : 48 M.L.J. 451 : (1925) M.W.N. 305 : A.I.R. 1925 Mad. 707 and the other the Full Bench case in Vuppuluri Atchayya v. Seetharama Chandra Rao 18 Ind. Cas. 555 : 39 M. 195 : 13 M.L.T. 60 : 24 M.L.J. 112 where an appellate judgment which decided such an issue came up for revision. I think it must be said that there is now a course of decisions in favour of interference sufficiently marked to render it undesirable that a single Judge should take the opposite view.
(3.)Turning to the merits, the trust was created for a number of specified purposes, some secular and some religious, and the question which first arises is whether Sub-section 2 of Section 73 of the Madras Hindu Religious Endowments Act takes the suit out of the scope of Section 92 of the Code of Civil Procedure and if so whether power to institute such a suit is derivable from Sub-section (1) of the same section. The learned District Judge holds that Section 73 (2) is a bar to the application of Section 92 but he finds himself able to bring the suit within the scope of Section 73(1).