Decided on March 27,1963



Venkatesam, J. - (1.) These two Civil Revision Petitions arise out of a common Judgment in O.S. Nos. 7 and 8 of 1961 on the file of the Subordinate Judge, Rajahmundry.
(2.) Two questions fall for consideration in these Civil Revision Petitions : (1) Whether an endowment in favour of an annasatram is a Hindu charitable endowment ; and (2) whether the suits, O.S. Nos. 7 and 8 of 1961 are barred by section 93 of the Hindu Religious and Charitable Endowments Act of 1951 (hereinafter called ' the Act'). The short facts in O.S. No. 7 of 1961 relevant for the determination of the questions may be stated. One Palla Swami of Chintalapudi executed a will on 12th August, 1915, by which he bequeathed plaint 'A' to ' C ' schedule properties as endowment to Mukteswaram Choultry to be constructed at Mukteswaram, and directed his wife, Janikamma, to give Rs. 3,000 out of the income from his estate for purchasing a site at Mukteswaram, and for the construction of the building for the choultry. She was also directed to manage ' A ' to ' C ' schedule properties during her life-time, and was appointed the executrix. The said Palla Swamy also appointed the plaintiff's father, Dharma Rao, the husband of Mangayamma, who is a daughter by one of his pre-deceased daughters and Chikkam Ramachandrudu (father of the first defendant) and Gokarakonda Mallappa Raju (husband of D-7), and some others as hereditary trustees of the choultry. He also made some endowments in favour of temples and bequeathed the rest of his properties to his widow, and the two daughters, and the grand-daughter by the pre-deceased daughter in equal shares. Shortly after the execution of the will Palla Swamy died in 1915. Janikamma purchased the site shown in ' D ' schedule for the construction of the choultry but did not construct the building. She ran the choultry in a rented building and later died in 1933. After her death the surviving trustees took possession of the properties and they were managed by the first defendant and his father. The choultry was run by the first defendant's father, Ramachandrudu, with the assistance of the first defendant, till Ramachandrudu's death in 1939, and thereafter the first defendant ceased to run the choultry. It is not necessary to advert to the other allegations. Suffice it to say that the plaint case was that, the first defendant kept the plaint schedule properties in his possession, and has been misappropriating the incomes therefrom, though as one of the hereditary trustees he was bound to execute the trust, and could not hold them adversely to the trust. O.S. No. 7 of 1961 was filed in forma pauperis for recovering possession of the plaint scheduled properties, and to direct the first defendant to render an account of the income from the plaint scheduled lands from 1939 till the date of the suit, and from the date of the suit till delivery of possession. O.S. No. 8 of 1961 was filed by two members of the public with the permission of the Advocate-General, under section 92 of the Civil Procedure Code, for substantially the same reliefs.
(3.) In both the suits, a large number of issues were framed. But the material issue is the additional issue, in these terms : "Whether the suit is not maintainable by reason of sections 3 and 93 of the Hindu Religious and Charitable Endowments Act of 1951 ? " The learned Subordinate Judge took the view that the endowment in the instant case cannot be said to be exclusively for the benefit of the Hindus, and, therefore, it is not a ' charitable endowment' within the meaning of section 6 (4) of the Act, and consequently, the Act has no application to the case. He further found that, even assuming that the Act is applicable, O.S. No. 7 of 1961 is not barred, but only O.S. No. 8 of 1961 will be barred. In view of his first finding he held that the civil Court had jurisdiction to entertain both the suits. Aggrieved by the said order the revision petitions are preferred. The contention of Sri Ramachandra Reddy, the learned Counsel for the petitioners is that, the endowment is one within the meaning of section 6 (4) of the Act, as it is one intended only for the Hinduco mmunity. If that be so, his further contention is that, the basis of the suit, O.S. No. 7 of 1961, being mismanagement of the charitable institution by the first defendant, the Government are empowerd by notification in the Gazette to extend to it all or any of the provisions of the Act, as if it were a specific endowment. By virtue of such a notification, all the ancillary powers for taking possession of the properties etc., can be availed of, and section 93 operates as a bar. Whether there is mismanagemet or not, is, no doubt, a matter committed to the decision of the Government. He relies on a decision of a Bench of this Court in Garige Venkataratnam v. Mahankali Narasimha Rao (1960) 2 An.W.R. 319 in support of this contention and submits that there is no conflict between that case and another Bench decision of this Court in Sri Sarveswaraswamy Vari Temple at Kakaramilli v. Rudrapaka Veerabhadrayya (1961) 1 An.W.R. 250 as contended by the learned Advocate for the respondents.;

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