T.R.K.RAMASWAMI SERVAI Vs. BOARD OF COMMISSIONERS OF THE HINDU RELIGIOUS ENDOWMENTS

JUDGEMENT

(1.) THIS is an appeal under Section 84 (3), Madras Hindu Religious Endowments Act (II [2] of 1927), as amended by Madras Act X [10] of 1946, against the order of the learned District Judge dismissing the appellants' petition under Section 84 (2) of the Act.

(2.) THE facts relating to this matter have been fully set out in the judgment of my learned brother which he is about to deliver find which I had the advantage of perusing, and therefore, need not be set out in great detail. One Venkataswami Servai executed on 18 -3 -1920, a deed of gift (EX. R -2) declaring that he had already endowed nineteen acres, ninety -eight cents of nanja land to Alagarswami temple devasthanam and that the temple was already under construction. He also expressed in that document his intention to have the deity Alagarswami installed in the building which was then under construction and to have kumbabhishekam performed after completion of the building. Under this deed he appointed two trustees, besides himself, Kamakshi Servai and Alagar Servai, and laid down the duties to be discharged by the trustees. He,being the founder of the charity, laid downthe rules for the devolution of the trusteeshipand provided that, if no male issue were bornto him, the trusteeship should devolve on thetwo trustees appointed by him under the deed and their heirs in perpetuity. The founder Venkataswami Servai died in 1925 leaving no male issue. Kamakshi Servai died some time an 1931 and was succeeded to the trusteeshipby Ramaswami Servai (appellant 1). Alagarswami also died later and was succeeded by appellant 2, Subbiah Servai.

(3.) THE annexur to this order containing the reasons for the above decision was not filed by the Board in these proceedings and it is not known whether the Board after enquiry came to the conclusion on the evidence placed before it that the conditions of the definition of a 'temple', as contained in the Act, were satisfied or not. From a later order of the Board, it is gathered, however, that at the time of the passing of the above order, both sides agreed to have the temple declared to be an excepted temple and that the deed of foundation supported that view. It is not clear from the evidence now adduced who the other side to the petition, Ex. R -1, was. In the cause title of the petition itself there is no name of. any respondent and it appears from the preamble to the order that Sri N. Sivaraj, advocate for the appellant alone, appeared at the time of the final hearing of the petition. As there is no legal evidence such as the annexure containing the grounds of the decision, it is difficult to know what exactly were the reasons that influenced the decision of the Board and who the other party to the proceedings was. The statement in Ex. P -2, later order of the Board, cannot be treated as secondary evidence of the contents of the annexure to the order in Ex. R -1. Further, if the other party was the Board, how far the consent of the Board and that of the petitioner would be a substitute for an enquiry contemplated by the petition. Exhibit R -3 is a matter which will be considered later. No steps, however, were taken by any person to have the correctness of the order questioned in an appropriate proceeding. 5. In the year 1940, the Board suo motu initiated proceedings under Section 62 of the Act for the settlement of a scheme for Sri Alagar temple Thevaram. The reasons given in the notice issued on 9 -5 -1940 (vide Ex. P -2) for starting the scheme proceedings by the Board were : (i) steps have not been taken for the construction of the temple, (ii) each trustee leases the temple lands without the knowledge of the other, which results in litigation, (iii) accounts are not maintained (the word 'not' is omitted in Ex. P -2 at p. 23), and (iv) trustees have not taken possession of certain properties endowed for the temple. After this notice, the matter came up for consideration before the Board and an objection was taken that the Board had no jurisdiction to frame a scheme as the temple had not come into existence. This question was taken as a preliminary point for consideration by the Board consisting of Mr. Mannadi Nair and Mr. Kameswara Rao. Mr. Mannadi Nair was of opinion that as no temple had come into existence and as the existence of a temple was the first requisite for the exercise of the jurisdiction of the Board under the Act, including the framing of a scheme under Sections 62 and 63 the proceedings were without jurisdiction. He thought that the prior order of the Board declaring the temple an excepted one must have proceeded under a mistake and that merely by reason of that order he could not assume the existence of a temple for the purpose of framing a scheme, when in fact none existed. Mr. Kameswara Bao, however, differed from this view. His opinion was that, as the prior decision was not challenged in a Court of law as provided by the Act, the Board had no right to go beyond the view contained therein which proceeded on the basis that there is a 'temple' which is an 'excepted temple' and that therefore the Board had jurisdiction. He, however, overlooked the fundamental fact that the very notice stated as the first ground for framing a scheme that steps had not been taken for the construction of the temple which clearly establishes that notwithstanding the order, there was in fact no temple in existence. The matter thereafter came up for consideration before a full Board as a result of the difference of opinion between the two Commissioners. Mr. Ramachandra Chettiar, Commisaioner no. 1 expressed as his opinion that the notional existence of a temple was sufficient to justify the action of the Board, notwithstanding that the building was not completed, the idol was not installed, and pranaprathishta and kumbabhishekamwere not performed and expressed further that though it has not been possible for the public to go and worship the deity at the place,because there has not been a formal ceremonialconsecration, it was still a temple which attracted the provisions of the Act. The Commissioner No. 3, Mr. Krishna Rao, thought that the prior order of the Board was final as it was not a case where the Board lacked inherent jurisdiction but was a case where the Board exercised jurisdiction irregularly. As a result of this opinion of the full Board, it wasdecided that the Board had jurisdiction tostart an enquiry under Sections 62 and 63 of the Act. This order was dated 2 -5 -1945. On this the two trustees filed in the District Court a petition under Section 84 (2) of the Act to set aside the said order of the Board on the ground, that the Board had no jurisdiction to initiate proceedings under Sections 62 and 63 of the Act, as there was no temple in existence at any time and as at the time of the passing of the prior order, first petitioner's advocate was not authorised to consent to any such order and that while fighting the jurisdiction of the Board, the advocate could not possibly and legally haveconsented to the passing of such an order. It was also alleged in the petition that one of the joint trustees was not a party and that the order of the Board was without jurisdiction. The Board in the counter filed on their behalf pleaded that the prior order under Section 84 of the Act was final and barred the present application and that the petition did not lie under Section 84 (2). The Board did not, however, specifically deny in their counter the categorical assertion of the petitioners that there was no temple in existence as no idol was installed and consecrated.