SP.RM.N.RM. RAMASWAMY CHETTIAR Vs. ALAMELU ACHI AND ANOTHER

JUDGEMENT

(1.) This appeal is directed by the first defendant -judgment debtor against the order passed by the learned Subordinate Judge, Sivaganga in E.P. No. 23 of 971 in O.S. No. 47 of 1963 on the file of his court. In that E.P. the decree -holder sought execution of a compromise decree granted in O.S. No. 47 of 1963 on 13th December 1968 and prayed for delivery of possession of Sri Umamaheswarar Temple at Kambanur along with all the movable and immovable properties belonging to the said temple as well as for recovery of the cash in the hands of the first defendant (appellant) and all his accounts during the period of his management. The appellant resisted the execution on the ground among others that Kambanur Sri Umamaheswarar Temple is a public temple under the control and management of the Hindu Religious and Charitable Endowments Department and its officers, that in the proceedings of the year 1934, to which the predecessors of the plaintiff's and defendants had been parties, it was decided that the temple was a public temple, that by order dated 2nd June 1959 the first defendant had been appointed by the H.R. & C.E. Department as the trusses of the temple, that the properties of the temple vested in the first defendant in his capacity as such, that as the compromise decree had been granted by a court which had no jurisdiction it was null and void, and that consequently, the execution petition was not maintainable. The Executing Court, while appearing to concede that under S.108of the Tamil Nadu H.R. & C.E. Act, (22 of 1959), the court would have no jurisdiction to entertain the suit, if the temple were a public one, proceeded to hold that the basis of the pleadings and the compromise was that it was a private temple, that the appellant had failed to bring to the notice of the court that the temple was a public one, that there was nothing on the face of the pleadings, or the issues or the compromise decree to indicate that the temple was a public one, and consequently the court that granted the decree had jurisdiction to try the suit and dispose it of, and the executing court could not go behind the decree and held that it had been passed without jurisdiction. In this view, the learned Subordinate Judge overruled the objections of the appellant and ordered delivery of possession of the temple and its properties along with She accounts as prayed for. The learned Judge granted a month's time to the first defendant for giving delivery and added that on his default, delivery would be effected through court. In order to understand the implications of the controversy between the parties, it is necessary to draw attention to certain establish ed or admitted facts, although those facts has been brought to the knowledge of the court only during the execution proceedings, it is found from Ex. B -1 that sometime in 1934, an enquiry was started under S.84of the Madras H.R.E. Act 1927 to find out whether Sri Umamaheswarar Temple, in respect of which the compromise decree has since been granted was a private temple or a public temple, and is it was a public temple whether it was an excepted or a non -excepted temple, Notice was issued to the then trustees, and SP. RM. RM. Raman Chettiar, the father of the firs plaintiff, SP. RM. N. Ramaswami Chettiar, the father of the first defendant (Appellant), were put that ward in the course of the enquiry as management trustees of the temple and the temple was claimed to be a private one. The Commissioners of the H.R.E. Board passed an order as per Ex. B -1 dated 23rd November 1934 discussing the entire evidence and holding is at the temple was a public one subject to jurisdiction of the Board. By the same court the Board further held that it was an except temple. This was an order passed under S. 84of the Madras H.R.C. Act, 1927, which runs as follows:

(2.) It is clear from the above narrative that to the knowledge of the parties to these proceedings, Sri Umamaheswarar temple has been treated since 1934 as a public temple in pursuance of an order made by the Board, which has become binding upon the parties and that from 1934 to 1958, the temple was being managed as an excepted temple by the hereditary trustees, but subject to the superintendence and control of the H.R.E. Board, and that the hereditary trustee (the second defendant) was dismissed by the Board from trusteeship in 1958 and the first defendant appointed by the Board as a fit person to manage the temple and the temple has been under the management of the first defendant as a trustee appointed by the Board ever since. It is against this context that the proceedings launched by the plaintiffs in O.S. No. 47 of 1963 on the file of the court below have to be understood. Ex.A -is a certified copy of the plaint filed on 23rd December 1903 in O.S. No. 47 of 1963. It was filed by SP. RM. Karuppayya Chettiar, who died pendente lite and whose widow and minor children were later impleaded as plaintiffs 2 to 6. In this suit, SP.RM.N.RM. Ramaswami Chettiar was impleaded as the first defendant in his individual capacity, and not in his capacity as trustee of Sri Umamaheswarar temple appointed by the H.R.E. Board. Rama Nachiappa Chettiar, who had been dismissed by the Endowments Board for misappropriation, and who is the elder brother of the first defendant, was impleaded as the second defendant. Nachiammal Achi, the mother of the defendants 1 and 2, was impleaded as the third defendant, and Vadivu Achi, the mother of the first plaintiff was impleaded as the fourth defendant. It was alleged in the plaint that Kambanur Umamaheswarar temple is a private trust, founded and managed by the family of the first plaintiff and the defendants, that the first plaintiff's father was entitled to a moiety of the trust, whereas the first defendant's father was entitled to the other moiety, that the temple had been found by Raman Chettiar, the grandfather of the first plaintiff with the aid of his own private funds, that by judgment of the Sub Court, Sivaganga, in O.S. No. 41 of 1936, the first plaintiff's father, on the one hand, and the father of the defendants 1 and 2, on the other, became trustees of the temple entitled to manage the properties thereof in turns, and that the defendants 1 and 2 were liable to hand over the temple and its properties to the plaintiffs. On the basis of these and other allegations, the plaintiffs prayed for a direction to defendants 1 and 2 to render accounts to the plaintiffs for the period of their management and to hand over possession of the temple and all the properties belonging thereto and for costs. It is astonishing that no reference was made in this plaint to the order passed by the Board in 1934 declaring the suit temple as a public temple or to the several acts of managements and control which the Board was exercising in respect of the temple from 1934 up to 1963, the year in which this plaint was filed. Ex. A -2 is a certified copy of the written statement filed by the first defendant in O.S. No. 47 of 1963. In this written statement, the first defendant pleaded that the first plaintiff was absolutely unfit to be a trustee of the temple because he had no property and he had become involved in debts, that he never acted as trustee, that it is only the father of the defendants 1 and 2, that had been managing the temple for over 17 years, asserting title to absolute trusteeship and that the suit was, therefore, barred by limitation. In paragraph 8 of the written statement, the first defendant blamed the first plaintiff for not stating the circumstances under which the first defendant assumed management as trustee of the plaint temple and added that as the second defendant was mismanaging the temple and had obtained from the settlement authorities a patta for a particular item of properly as if it were his absolute property and the first plaintiff was colluding with him, the first defendant appealed against the order and got patta for the property in the name of the temple. In paragraph 9 of the written statement, which is the most important paragraph, the first defendant stated as follows:

(3.) Another complication is, the first defendant has a dual capacity. He entered into the compromise only in his individual capacity and certainly but in his capacity as trustee appointed by the Board. In execution, he can, in his capacity as trustee appointed by the Board, bring to light the real facts and frustrate the execution proceedings, in which case the compromise decree granted by the court will become brutum fulmen. The court ought not to direct execution of a decree knowing in advance that execution will prove infructuous. The question raised by the appellant in the execution petition in his capacity as trustee appointed by the Board is a question which the court has to decide under Sec. 47, C.P.C. It may be that the first defendant in his personal capacity may be estopped from raising the contention that the decree is not binding upon him. But in his capacity as a trustee appointed by the Board, he is certainly not estopped. If he is not estopped, it is the duty of the court to investigate the facts disclosed by him in execution and refuse to execute the decree in the light of the facts, which were suppressed from the knowledge of the court at the time the compromise decree was granted, and which, however, have been brought to the court's notice in execution of this illegal decree. It is the duty of the court to refuse execution on another ground as well. The parties cannot by agreement, give the court jurisdiction which the Legislature has enacted they are not to have. If, on the face of it, the decree does not show the existence of a jurisdictional fact, the executing court may look to the original record of the trial court to ascertain whether there was any material furnishing a foundation for the trial Court's jurisdiction to pass the decree, (vide Nagindas v/s. Dalpatram : A.I.R. 1974 S.C. 471 The moment it finds the there was no such foundation it is open to the executing court to hold that the decree is not executable, because the court that granted it had no jurisdiction to pass it. In this case, the compromise decree itself refers to the Endowments Inspector and provides for delivery of possession of certain movables belonging to the temple to the Inspector. If the suit temple was a private temple, there was no need to refer in the compromise decree to the Endowments Inspector and to the duty to handover certain temple movables to him. The reference in the decree prima facie though obliquely shows that the temple was subject to the supervision of the Endowments Department and as no private temple would be so subject the reference necessarily suggests that the temple which is the subject matter of the compromise is a public temple. I have also pointed out certain passages in the written statement of the first defendant which attacked the maintainability of the suit itself on the ground that he had been appointed by the Endowments Board and that the plaintiff could not without getting the order of the Endowments Board set aside, institute a suit for the reliefs which he had actually prayed for in the plaint. It is thus found that even without traveling beyond the original records of the trial court it cannot be ascertained that the temple was a public temple, which vested in the Endowments Department and no suit for recovery of possession thereof was entertainable by the civil court except in accordance with the special provisions made in the Act.