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Konduru Seshu Reddi Vs. Vemareddy Rama Raghavareddy and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 312 of 1957 and Memo of Cross Objections and C.M.P. No. 6422 of 1962
Judge
Reported inAIR1964AP118
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17; Madras Hindu Religious and Charitable Endowments Act, 1951 - Sections 6(17), 20, 57, 84 and 93; Specific Relief Act, 1877 - Sections 42
AppellantKonduru Seshu Reddi
RespondentVemareddy Rama Raghavareddy and ors.
Appellant AdvocateO. Chinappa Reddy, ;O. Padmanabha Reddy and ;J. Ball Reddy, Advs.
Respondent AdvocateP. Babul Reddy and ;E.P.K. Sikhamani, Advs., ;N.V. Rama Reddy, 2nd Govt. Pleader and ;D.V. Reddi Pantulu, Adv.
DispositionAppeal allowed
Excerpt:
trusts and societies - rule of amendment for plaint - amendment objected as being at last stage of appeal - appellant also did not amend plaint on objection being taken in lower court - principle of amendment - amendment be necessary to determine dispute and it should be done in justice to opposite party - amendment in present plaint does not bring in new grounds to prejudice opposite party - amendment allowed with cost. - - (4) that the petitioners 1 to 4, their heirs, successors, administrators and assignees do pay to the said temple for its maintenance 12 1/2 putties of good mologulukulu paddy and rs. (5) that the said 12 1/2 putties of good molugulukulu paddy and rs. (9) that the privilege now enjoyed by the petitioners family including the right to separate worship in the temple.....satyanarayana raju, j.1. this appeal is from the judgment and decree of the court of the subordinate judge, nellore, in o. s. no. 67 of 1955, which was filed by the appellant for a declaration that the term in the compromise decree in o. p. no. 3 of 1950, on the file of the district court nellore, that the lands set out in the plaint schedule are the personal properties of defendants 1 to 5 and not the absolute properties of sri kodandaratnaswami temple, is not valid and binding on the said temple.2. the plaintiff is a worshipper and as such interested in safeguarding the interests of the temple. defendants 1 to 5 are members of a composite family. the 6th defendant is the commissioner, hindu religious and charitable endowments.3. the case of the plaintiff is as follows: the properties.....
Judgment:

Satyanarayana Raju, J.

1. This appeal is from the Judgment and decree of the Court of the Subordinate Judge, Nellore, in O. S. No. 67 of 1955, which was filed by the appellant for a declaration that the term in the compromise decree in O. P. No. 3 of 1950, on the file of the District Court Nellore, that the lands set out in the plaint schedule are the personal properties of defendants 1 to 5 and not the absolute properties of Sri Kodandaratnaswami temple, is not valid and binding on the said temple.

2. The plaintiff is a worshipper and as such interested in safeguarding the interests of the temple. Defendants 1 to 5 are members of a composite family. The 6th defendant is the Commissioner, Hindu Religious and Charitable Endowments.

3. The case of the plaintiff is as follows: The properties set out in the plaint schedule comprise an extent of 50 acres of wet land and over 200 acres of dry land. They fetch an annual income of not less than Rs. 5,000/- to Rs. 6,000/-. Under the compromise, the said lands were declared to be the personal properties of defendants 1 to 5 and a provision was made for payment of a small annuity of 12 1/2 putties of paddy and a sum of Rs. 600/- to the temple. By reason of this compromise, the temple has been reduced from the position of an owner to that of a mere charge-holder. The ownership of the lands did not fall to be decided, in O. P. No. 3 of 1950, which was filed only for a declaration that the temple was a private one. The compromise decree in relation to the schedule mentioned lands is not valid and binding on the temple because it is beyond the scope of that petition and the temple was not a party thereto. The right of the plaintiff, who was the 2nd respondent in the petition, to agitate the matter has been expressly reserved in the decree. As, however, the decree throws a cloud on the right of the temple to the schedule mentioned lands, the suit is filed by the plaintiff for a declaration that the provision in the compromise decree mat the lands are the personal properties of defendants 1 to 5, subject to a charge in favour of the temple for an annuity, is not binding on the temple.

4. Defendants 1 to 5 and the Commissioner for Hindu Religious Endowments resisted the suit on various grounds. The main defence of defendants 1 to 5 is that the temple is a private temple and that the suit lands are their personal properties and that the compromise decree is valid. They pleaded that the compromise is in the interests of the temple and as such it is binding. The defendants raised certain legal pleas, such as, that the plaintiff could not institute the suit for a declaration that the schedule mentioned lands formed part of the religious endowment and his remedy, if any, is to have recourse to the procedure indicated in Section 57 of Madras Hindu Religious and Charitable Endowments Act of 1951; and that even otherwise, the suit was not maintainable for a bare declaration without the plaintiff asking for the consequential relief of possession. There was a further plea that the suit was barred by limitation.

5. The 6th defendant pleaded that the compromise in O. P. 3 of 195O was a fair one and it was not open to any attack; that the compromise was one and indivisible; that the temple had been properly represented in the prior proceedings; that the suit for a bare declaration was not maintainable and that the plaintiff was not entitled to any relief, at any rate, against the 6th defendant.

6. On these pleadings, the following issues were framed by the lower Court:

(1) Whether the suit properties constitute the properties of the suit temple?

(2) Whether the compromise decree passed in O. P. 3 of 1950, District Court, Nellore, is binding on the temple for any of the reasons alleged in the written statement?

(3) Whether there is any cause of action for the plaintiff to file this suit?

(4) Whether this Court has jurisdiction to entertain this suit?

(5) Whether this suit for a bare declaration without consequential reliefs is not maintainable?

(6) Whether the Court fee paid is proper?

(7) Whether the suit is in time?

(8) To what relief, if any, is the plaintiff entitled?

6a. The plaint was originally filed with a Court fee of Rs. 50/-. Pursuant to a finding reached by the lower Court that the court-fee payable was Rs. 500/-, as the value of the subject-matter of the suit was over Rs. 10,000/-the plaintiff paid the balance of court-fee of Rs. 450/- which is the court-fee payable in a declaratory suit under Article 17-A of Schedule II of the Court Fees Act. A finding on Issue No. 6 therefore, became unnecessary.

7. On issue No. 7, the lower Court held that as the provision in the Limitation Act applicable was Article 120. We suit was within time. On Issue No. 5, it was held that the suit as framed for a mere declaration without seeking any consequential relief was not maintainable.

8. issue No. 3 was answered in the affirmative, in view of his findings that Section 93 barred the institution of the suit and the declaration sought for ought to be refused, the learned Subordinate Judge held that it was not necessary or desirable to discuss the further questions involved in Issues (1) and (2) and left them open. in the result, the suit was dismissed and against the said decree of dismissal, the plaintiff has preferred this appeal.

9. The following points have been raised and argued before us.

(1) Whether the suit as laid was defective for the reason that the plaintiff did not seek a declaration that the entire compromise decree was not valid and binding on him but confined his relief only to a part of the decree?

(2) Whether Section 93 of the Hindu Religious and Charitable Endowments Act was a bar to the suit?

(3) Whether the plaintiff was entitled to seek a Dare declaration without asking for any consequential relief?

9a. For a proper appreciation of the points in controversy in the appeal, it is necessary to state the material facts. In the village of Varagali, in the District of Nellore, there is a temple in which is enshrined the idol of Sri Kodandaramaswami. The temple is an ancient one; it was built in the middle of the last century by one Buria Rangareddi. Rangareddi managed the affairs of the temple and its properties during his life-time and atter his death, his son, Venkatasubba Reddi, was in management. By a deed, dated August, 19, 1898, Venkatasubba Reddy relinquished his interest in the family properties in favour of one Vemareddi Rangareddi, whose family members are the present defendants 1 to 5.

10. The plaintiff filed a petition before the Asst. Commissioner for Hindu Religious Endowments, Nellore, alleging mismanagement of the temple and its properties by the 1st defendant. Thereupon notice was issued to the 1st defendant to show cause why the temple properties should not be leased out in public auction. The 1st defendant contested the application alleging inter and, that the properties were not the properties of the term but that they, belonged to his family. Alter enquiry, the Assistant Commissioner, submitted a report to the Hindu Religious Endowments Board, Madras, with his recommendation that a scheme of management might be framed for the administration of the temple and its properties. The Board thereupon commenced proceedings for settling a scheme and issued notice to the first defendant to state his objections. The 1st defendant reiterated his contention that the temple was not a public temple. The Board held an enquiry and by its order dated October 5, 1949, held that the temple was a public one.

11. On January 18, 1950, the first defendant filed O. P. No. 3 of 1950, on the file of the District Court, Nellore (1) for setting aside the order of the Board, dated October 5, 1949, declaring the temple of Sri Kodandaramaswami Varu as a temple defined in Section 6, Clause (17) of the Act; (2) for a declaration that We temple was a private temple; and (3) for a declaration that the properties, as set out in the schedule annexed to the petition, were the personal properties of his family and that they did not constitute the temple properties. Originally, the Commissioner H. R. E. Board, Madras was impleaded as the sole respondent to the petition. The present plaintiff, however, got himself impleaded as the 2nd respondent therein. Both the respondents contested the petition on the ground that the temple was a public temple and that the properties mentioned in the schedule were the properties of the temple and not the personal properties of the 1st defendant, the petitioner therein. For reasons which are not apparent from the record, the petition was not disposed of for a number of years. In the meantime, Madras Act 11 of 1927 was repealed and the Hindu Religious and Charitable Endowments Act of 1951 became law. There was then the formation of the State of Andhra. By reason of these changes, the commissioner for Hindu Religious and Charitable Endowments of the Stale of Andhra was impleaded as the 1st respondent in the petition. Eventually, on October 18, 1954, the present defendants 2 to 5 were impleaded as petitioners 2 to 5 in the petition. Thereafter there was a compromise between the petitioners 1 to 5 on the one hand, and the Commissioner, the 1st respondent on the other. The learned District Judge, Nellore, recorded the compromise and passed a decree in terms thereof in and by his order dated October, 28, 1954.

12. Ex. B-11 which is a certified copy of the compromise decree, contains 15 clauses. As much of the argument in this case turns upon its terms, it will be convenient to extract the material clauses therein which are as follows:

'(1) That Sri Kodandaramswami Temple, Varagalli, be and hereby is declared as a temple as defined in Section 6, Clause 17 of the Hindu Religious and Charitable Endowments Act.

(2) That the petitioners 1 to 4 be and hereby are, declared as the present hereditary trustees of the said temple;

(3) That the properties set out in schedule 'A' filed herewith be and hereby are, declared as the personal properties of the family of the petitioners subject to a charge as noted below:

(4) That the petitioners 1 to 4, their heirs, successors, administrators and assignees do pay to the said temple for its maintenance 12 1/2 putties of good Mologulukulu paddy and Rs. 600/- every year by the 3sst of March;

(5) That the said 12 1/2 putties of good Molugulukulu paddy and Rs. 600/- due every year be a charge on the lands mentioned in Schedule 'A' given hereunder:

(6) That the petitioners 1 to 4 and their successors, heirs and assignees be liable to pay 12 1/2 putties or Mologolukulu paddy and Rs. 600/- every year whether the lands yield any income or not :

xx xx xx xx xx xx (8) That the petitioners be and hereby are, declared that there are no charges or encumbrances of any kind existing on the lands and that they have full title thereto;

(9) That the privilege now enjoyed by the petitioners family including the right to separate worship in the temple for half an hour during their evening worshipping time, taking the procession deities to the house of the hereditary trustees on all festival days; and garlanding the trustees before the procession commences on festival days, be respected and continued;

(10) That the H.R. and C. Commissioner be entitled to associate non-hereditary trustees not exceeding two, whenever they consider that such appointment is necessary and in the interests of the management;

(11) That the Managing trustee shall be one of the four hereditary trustees or their successors in title only and not the non-hereditary trustees;

XX XX XX XX XX(14) That the terms of the compromise be taken as a whole and treated as consideration for each of them;

(15) That the right of the 2nd respondent to agitate the matter by separate proceedings will be unatrected by the terms of this compromise to which he is not a party'.

13. From a reading of its terms, it is clear that under the compromise decree, the temple was declared to be a public temple as defined in Section 6 Clause (17) of the Hindu Religious and Charitable Endowments Act, and that the properties set out in Schedule 'A' annexed to the compromise petition (which are the present plaint schedule properties) were declared to be the personal properties of defendants 1 to 5. The decree created a liability on their part to deliver to the temple for us maintenance 12 1/2 putties of paddy and pay Rs. 600/-every year. It is to be noted that Clause 15 expressly stated that the right of the present plaintiff (2nd respondent in the petition) to agitate the matter by separate proceedings would be unaffected by the compromise decree to which he was not a party. The schedule to the compromise decree sets out the properties which were agreed to be treated as the personal properties of the family of defendants 1 to 5. They are of an extent of 200 acres dry and 50 acres wet.

14. The present suit was instituted on October 31, 1955 for a declaration that the provision in the compromise decree, that the schedule mentioned lands were the personal properties of defendants 1 to 5 and not the absolute properties of the temple, was not valid and binding on the temple. The plaintiff did not seek a declaration that the compromise decree was not valid in its entirety but confined his relief only to that part of the decree which declared the suit properties to be the personal properties of defendants 1 to 5. Defendants 1 to 5 objected to the frame of the suit on the ground that it was not open to the plaintiff to seek a declaration that a part of the decree was not binding and that he should have directed his attack against the entirety of the decree; and that it was not open to him to affirm what was beneficial to the temple and disown what was not. The Court below held that the frame of the suit was defective; that the plaintiff could and should have prayed for a declaration that the entirety of the decree was invalid and not binding on the temple.

15. In this Court, the plaintiff, has filed an amendment petition C.M.P. No. 6422 of 1962 for deleting Clause (a) in paragraph 13 of the plaint and for substituting in its place the following clause: 'declaring that the compromise decree in O. P. No. 3 of 1950 on the file of the District Court, Nellore, is not valid and binding on the Sree Kodandaramaswami Temple, Varagali.'

16. Now, the question is whether this amendment should be allowed. The amendment, if allowed, it is not disputed, would cure the defect, if any, in the frame of the suit. But it is contended on behalf of defendants 1 to 5 that the amendment ought not to be allowed at this stage, the more so because the plaintiff, in spite of the objection taken by them in the lower Court, had not taken. any steps to have the prayer amended.

17. In two recent decisions of the Supreme Court; Leach and Co., Ltd. v. Jardine Skinner and Co., (5) : [1957]1SCR438 and Pirgouda Hongunda Patil v. Kalgunda Shidgunda Patil, (S) : [1957]1SCR595 their Lordships have laid down that all amendments ought to be allowed which satisfy the two conditions namely (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Their Lordships observed was even in a case where a fresh suit on the amended claim would be barred by limitation on the date of the application for amendment, the Court would allow the amendment if that is required in the interests of justice.

18. The same principle should apply in the present case. The amendment does not really introduce a new case nor can it be said that defendants 1 to 5 have been taken by surprise by reason of this amendment. No new claim has been set up for the first time. Under these circumstances, we think that the amendment should be allowed subject to the direction which we propose to make with regard to costs. It is not disputed that if the amendment is allowed, the objection with regard to the frame of the suit does not survive.

19. We will now proceed to consider the other two points raised and argued in the appeal. The first of them is that Section 93 of the Hindu Religious and Charitable Endowments Act of 1951 is a bar to the maintainability of the suit. Section 93 reads as follows:

'No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of law, except under and in conformity with, the provisions of this Act.'

20. Reference may here be made to Section 57, which empowers the Deputy Commissioner to decide certain disputes and matters. The relevant provisions of that section are as follows:

'Subject to the rights of suit or appeal hereunder provided, the Deputy Commissioner shall have power to inquire into and decide the following (among other) disputes and matters:

(a) Whether an institution is a religious institution;

(b) Whether a trustee holds or held office as a hereditary trustee;

(c) Whether any property or money is religious endowment,.....'

21. Section 93 corresponds to Section 73 of Madras Act 11 of 1927, and Section 57 corresponds to Section 84 of the old Act.

22. Briefly stated, the objection based on Section S3 is that among the powers vested in the Deputy Commissioner under Section 57 of the Act is the power to decide whether any property is a religious endowment, and it is therefore open to the plaintiff to institute proceedings under that provision for the determination of the question as to whether the properties mentioned in the plaint schedule are the properties of the temple. Such a power being expressly vested in the Deputy Commissioner under Section 57, it is argued that Section 93 bars the preserve suit.

23. The answer to this objection is that the present suit is not primarily one for determining the character or the suit properties, as to whether they are the properties of the temple. The principal object and purpose of the suit is to have it declared that the compromise decree in O. P. No. 3 of 1950, is not valid and binding on the temple. That declaration is sought on the ground that the temple was a party to that proceeding and that the compromise decree itself was beyond the scope of that petition. It is here necessary to note that In O.P. No. 3 of 1950, the only question for decision was whether the temple was a public temple as defined in Section 6 (Clause 17) of the Act and the question as to whether the plaint schedule properties belonged to the temple or formed part of the religious endowment was not within tine scope of that proceeding. It is, therefore, contended by the plaintiff that the compromise decree, which consists of two parts, viz. (1) with regard to the declaration that the suit temple is public temple, and (2) that the properties are the personal properties of the present defendants 1 to 5, has gone beyond the subject-matter of the proceeding inasmuch as though the first part was within the scope of the enquiry, the second part was not. The plaintiff invoked the principle analogous to that set out in Order XXlll, Rule 3 of the Code of Civil Procedure, viz., that a Court shall pass a decree in accordance with the terms of the compromise 'only in so far as it relates to the suit'. Whether the plaintiff is entitled to the declaration is a different matter but looked at purely from the standpoint of the bar under Section 93 of the Act, it cannot be maintained that the present plaintiff could seek the relief which he wants, namely, the setting aside or the compromise decree in O. P. No. 3 of 1950, in a proceeding under Section 57 of that Act. There can be little doubt that a Deputy Commissioner, acting under Section 57, has no Jurisdiction to go into the validity of a compromise decree. It is beyond the scope of his powers vested under Section 57. If so much is conceded, the conclusion becomes inescapable that the present suit, in which the primary relief sought for is the setting aside of the compromise decree, can only be maintained in a civil Court. The jurisdiction of the civil Court to grant relief with regard to the binding nature of the compromise decree is neither expressly not impliedly barred by any of the provisions of the Hindu Religious and Charitable Endowments Act. Therefore, looked at front any point of view, we have no doubt that the bar under Section 93 of the Act cannot be set up by the defendants.

24. The question, on which there has been considerable debate and discussion before us, is with regard to the maintainability of the suit. It is contended by the learned counsel for the respondents that a suit for a bare declaration is not maintainable without the plaintiff praying for consequential reliefs. This was the subject-matter of issue No. 5 settled by the lower Court. The Court below held that the declaration sought for by the plaintiff would not serve any useful purpose unless be had asked for possession of the properties as well. The learned trial Judge also held that this was a proper case where the Court should refuse the declaration sought for.

25. Section 42 of the Specific Relief Act reads:

'Any person entitled to any legal character, or to my right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so'.

26. The conditions which would satisfy the court in granting a declaratory decree under Section 42 are that we plaintiff must be entitled to a legal character at the time of the suit, or to a right to property, that the defendant should have denied these, or be interested in denying his character or right; and that the plaintiff should not be in a position to ask for relief consequents upon the declaration sought.

27. Sri Babula Reddi, learned counsel for the respondents, has referred us to various decisions which have elucidated and explained the scope and purpose of Section 42. He principally relied upon the decision of the Privy Council in Sheoparson Singh v. Ramnandan Prasad, ILR 43 Cal 694: (AIR 1916 PC 78).

'The Court's power to make a declaration without more is derived from Section 42 of the Specific Relief Act, and regard must therefore be had to its precise terms.'

28. The learned counsel also relied upon the following passage occurring in the Commentary on the Indian Contract and the Specific Relief Acts by Messrs. Pollock and Mulla (Eighth Edition at pages 855 and 856):

'The power of the Courts in India to make declaratory decrees.....is governed entirely by Section 42 of the Specific Relief Act.'

21. On the basis of the decision of the Privy counciland the passage above cited, the learned counsel hasargued that the plaintiff is not entitled to any legal character or to any right in any property within the meaningof Section 42, and that he cannot maintain the present sunfor a mere declaration that the compromise decree is notvalid, without any consequential relief with regard topossession of the properties. Before we consider thisquestion, it will be convenient to dispose of a subsidiarycontention raised by the learned counsel for the respondents that the Commissioner, who was a party to thecompromise decree, represented the temple and that, therefore, it was binding upon him. The argument that TheCommissioner represented the temple, cannot Standscrutiny. Section 20 of the Hindu Religious and CharitableEndowments Act itself furnishes an effective answer to thiscontention. The Commissioner discharges certain statutoryfunctions. Under Section 20, it is provided that

'the administration of all religious endowments shall be subject to the superintendence and control of the Commissioner; and such superintendence and control shall include the power to pass any orders which may be deemed necessary to ensure that such endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded or exist.'

30. Under this Section, the Commissioner is vested with general powers of superintendence over all religious endowments including the power to pass any orders that are necessary for their proper administration. It is by virtue of the statutory powers in him under Section 20 and the other provisions of the Act, that he was impleaded as a party in O. P. No. 3 of 1950 and not by reason of the fact that he represented the temple. In particular, he was impleaded because of the fact that it was his predecessor's order that was the subject-matter of challenge in the proceeding before the District Court under Section 84 of the Act. We are, therefore, unable to agree that the temple was represented by the Commissioner, it is not contended that the plaintiff represented the temple. Therefore, the temple as such was not a party to the proceedings in O. P. No. 3 of 1950, nor was it a party to the compromise decree.

31. We now come to the substantial question whether the suit in its present form is not maintainable? As already stated, the learned counsel's contention is that the plaintiff does not fill any legal character and that he is not entitled to any right to property. Under the proviso to Section 42, it is expressly laid down that no Court shall make any declaration where the plaintiff being able to seek a further relief than a mere declaration, omits to do so. It cannot be disputed that the plaintiff in the present case cannot seek the further relief of possession. He can only ask for a declaration that the compromise decree does not bind the temple. But even so, the learned counsel says that the plaintiff not having satisfied the requirements of the main provision, he is not competent to maintain the suit.

32. It is, no doubt, true that the Privy Council in ILR 43 Cal 694: (AIR 1916 PC 78) has taken the view that a suit for obtaining a declaratory relief cannot lie outside the scope of Section 42 of the Specific Relief ACT. In P.C. Thevar v. V. Samban, ILR 6 Rang 188 : (AIR 1928 Rang 143) it has been held to be quite clear from the above Privy Council decision that, apart from Section 42, the Courts have no power to grant a merely declaratory relief; and agreement has been expressed with the view taken by Pollock and Mulla in their Commentary (Reference was made to this passage at an earlier stage on this Judgment.)

33. There is a long line of authority in the Madras High Court that Section 42 of the Specific Relief Act is not exhaustive and that a suit for a declaration can be maintained even if it does not satisfy the requirements of that section. Referring to ILR 43 Cal 694: (AIR 1916 PC 78) a Division Bench of the Madras High Court, consisting of Beasley C. J. and Bardswell J. in secretary or State v. Subbarao, 65 Mad LJ 186; (AIR 1933 Mad 618) held:

'This decision which does not consider Robert Fischer v. Secy. of State, ILR 22 Mad 270 : 26 Ind App 16 (PC), and was passed in very different circumstances from those of the earlier decision and of the case now under notice, has been interpreted by a Bench of this Court in Surayya v. Subbamma, ILR 43 Mad 4 at 26: 37 Mad LJ 405: (AIR 1920 Mad 361 at p. 371) as having turned on the fact that the will which was sought to be avoided had been affirmed by a Court exercising appropriate jurisdiction and that, as the propriety of that decision could not be impeached in the subsequent proceedings the plaintiffs could not sue, not being reversioners.'

34. In Muhammad Fahimal Huq v. Jagatballav Ghose, ILR 2 Pat 391: (AIR 1923 Pat 475) It was held that there was no substance in the contention that Section 42 was not exhaustive and that apart from the statutory authority, the general law entitled the plaintiff to a legal declaration. After referring to the other decisions, the learned Judges of the Division Bench of the Madras High Court held that the decision in ILR 22 Mad 270 (PC) had never been overruled, neither had any different interpretation been given to it from that which it had always received in the Madras High Court. The learned Judges pointed out that the view taken by the Privy Council in ILR 22 Mad 270 (PC) had been followed in the Madras High court.

35. In Veeramachaneni Ramaswamy v. S. Pitchayya, ILR 43 Mad 410: (AIR 1920 Mad 665) it was held that worshippers of a temple could maintain a suit for a declaration that a permanent lease of temple property granted to the defendants in possession was invalid. There, the learned Judges Abdur Rahim and AyIing JJ. held that Section 42 of the Specific Relief Act 'is not exhaustive of cases in which declaratory suits may be maintained'. They referred in particular to the Full Bench ruling in Venkataramana v. Kasturiranga, ILR 40 Mad 212: (AIR 1917 Mad 112 (FB) in support of their view that such a suit was maintainable. We are bound by the decisions of the Madras High Court which have taken the view that Section 42 of the Specific Relief Act is not exhaustive of the claims for relief of a declaratory nature.

36. We may also point out that in the case of a Hindu temple, the property vests in the idol, which is a juristic entity. From its very nature, the idol can act and assert its right by a recognised human agency known as a Dharmakarta, and sometimes called a trustee. In Sankaranarayanan Iyer v. Poovananathaswami temple, Koilpatti, 1949-2 Mad LJ 171: (AIR 1949 Mad 721) (FB) a full Bench of the Madras High Court held that 'even a de facto trustee, as long as he brings the action for the benefit of the real owner, namely, the idol, can maintain a suit on behalf of the idol'. In the present case, the trustees are claiming adversely to the temple that the properties belong to themselves and that they are not the properties belonging to the temple. Necessarily, therefore, defendants 1 to 5 cannot be expected to assert the rights of the temple. The plaintiff, as a worshipper, has brought the suit for setting aside the compromise decree. If eventually that compromise decree is held to be not binding, the question whether the properties belong to the temple or to defendants 1 to 5 will have to be gone into. If, on the other hand, the compromise decree is held to be binding, the suit would fail on that ground. In any view of the matter, with the compromise decree intact, it is not possible for any person even to initiate proceedings under Section 57 of the Hindu Religious and Charitable Endowments Act. A suit such as the present is certainly maintainable where the only relief prayed for is for granting a declaratory decree because the consequential relief to which he may be entitled to viz., recovery of possession of the property is not one which a Civil Court, even according to the argument of the learned Counsel for the defendants, can grant. Their Lordships of the Privy Council in Moothoo Vijia Ragoonadah Ranee Kolandapuree Natchiar v. Dorasinga Tevar, 2 Ind App 169 (PC) observed

'that a suit is cognizable by a Civil Court where a declaratory decree ought not to be made unless there is a right to some consequential relief, which, if asked for, might have been given by the Court or where, in certain circumstances, a declaration of right was required as a step to relief in some other Court.'

This observation is very apposite in the present case. The plaintiff, before he can initiate proceedings under Section 57 of the Hindu Religious and Charitable Endowments net for the determination of the character of the properties, must, as a first step, get rid of the compromise decree. That is an impediment which stands in the way of any person interested in the temple agitating the character of the properties, or taking steps for recovery of possession of those properties for the temple.

37. A decision which is in point is Uday Chandra Paul v. B.H. Parmer, AIR 1941 Cal 153. There, the plaintiffs prayed in the first instance for a declaration that the compromise decree based upon a solemama embodying the terms of a lease was void on the ground of fraud. Fraud had been negatived by Doth the Courts below. The trial Court granted the plaintiffs a declaration that the solenama not being registered under the law was not binding upon the plaintiffs under Section 49 of the Registration Act.

38. There, Khundkar and Lodge JJ. held that:

'a solenama itself hawing merged in the decree the effect of the trial Court's decision was that the lease embodied in the decree not having been registered was not binding upon the plaintiffs under Section 49 Registration Act. The declaration granted was not a declaration that the decree was void but was virtually a statement of the legal consequences of non-registration under Section 49 Registration Act, of the lease embodied in the compromise decree and was not contemplated by Section 42, Specific Relief Act.'

This decision embodies the principle which is applicable to the present case as well.

39. For the reasons given above, we are satisfied that the findings of the lower Court on issues 4 and 5 cannot be upheld, and they must be set aside. The sun is remanded to the Court of the Subordinate Judge, Nellore, who will re-entertain the suit on his file and dispose of the same on all the remaining issues. Both parties have stated before us that it will not be necessary for the lower Court to give a finding on issue No. 1 in the suit because in the event of the compromise decree being set aside, the plaintiff, or somebody else on behalf of the temple, can agitate the question as to the character of the suit properties in appropriate proceedings under the provisions of the Hindu Religious and Charitable Endoments Act.

40. The appellant will be entitled to the refund of the court-fee paid on the memorandum of appeal. It is no doubt true that the appellant-plaintiff would, in the normal course, be entitled to costs in this appeal. But, since we have allowed the amendment, we direct that each party-will bear its respective costs in this appeal.

41. Cross objections: In view of the fact that we have set aside the decree passed by the lower Court and remitted the matter for re-trial, there is no question or defendants 1 to 5 (respondents 1 to 5) being entitled to any costs. The cross-objections are, therefore, dismissed. There shall be no order as to costs.


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