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M. Chengayya Pantulu, Commissioner, Representing the Board of Commissioners for Hindu Religious Endowments Vs. Medarametla Kotayya and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai
Decided On
Reported inAIR1933Mad57; 140Ind.Cas.769; (1932)63MLJ780
AppellantM. Chengayya Pantulu, Commissioner, Representing the Board of Commissioners for Hindu Religious Endo
RespondentMedarametla Kotayya and ors.
Cases ReferredChinnan v. Sundaresa
Excerpt:
- .....53(4) refers inter alia to any scheme of administration which under section 71 is deemed to be a scheme settled under the act; and it says that all such schemes may be modified or cancelled by the court on the application of, the board. section 71 says thatwhere the administration of a religious endowment is governed by any scheme settled under section 92 of the code of civil procedure such scheme shall be deemed to be a scheme settled under this act, and such scheme may be modified or cancelled in the manner provided by this act;in other words, may be modified or cancelled by the procedure laid down in section 53. the reference in section 71 to schemes settled under section 92 can apply only to schemes settled before the act for the reason that under section 69(2) of the act future.....
Judgment:

Krishnan Pandalai, J.

1. These petitions by the Hindu Religious Endowments Board arise from applications under Section 53, Clause (4) of Act I of 1925, the first Hindu Religious Endowments Act which was afterwards repealed by Act II of 1927. The applications were severally for the modification of schemes which had been settled in respect of three temples by the Civil Courts and were made on the 3rd January, 1927, when the first Act was still in force. They were opposed by the counter-petitioners concerned and were dismissed by the learned District Judge on a preliminary point. That point is that applications under Section 53(4) will not lie in respect of schemes settled by Courts before the Act and will lie only in respect of schemes settled subsequently. For this opinion the learned Judge relied on a decision of Srinivasa Aiyangar, J., in Chinnan v. Sundaresa : AIR1929Mad322 .

2. That was not a decision on this point, although there is an observation to the effect that the scheme under consideration in that case was of an earlier date than the Act of 1927 and therefore Section 75 of that Act corresponding to Section 71 of the Act of 1925 does not apply to the scheme. The matter before the learned Judge arose out of an application before the Subordinate Judge of Cuddalore made under ' the liberty to apply' clause in a scheme which had been framed and the Subordinate Judge in that application removed the petitioner, trustee. The trustee brought up the matter to this Court and submitted that the ' liberty to apply' clause in pursuance of which proceedings had originated against him was itself ultra vires and his dismissal was therefore illegal. With this argument the learned Judge concurred. It was then argued for the other side that under the Religious Endowments Act, which had been enacted while the proceedings against the petitioner were pending, whatever may have been the inherent fault of schemes passed before the Act they had all been cured and validated by Section 71 of the Act of 1925, corresponding to Section 75 of the Act of 1927., The true answer to this, I venture to think, was that the Religious Endowments Act did not purport to do anything of the kind. All that the above section meant was that schemes passed by the Civil Courts before the Act must be deemed to have been passed under the Act. Mark why. In order that they may be dealt with under the Act - inter alia under Section 53 of the Act of 1925. (Section 57 of the Act of 1927.) There was no question of validation or invalidation of any clause or provision in any scheme which was ultra vires of the Court. But the answer given by the learned Judge was that Section 75 of the Act of 1927 applied only to schemes settled after that Act. I cannot convince myself that the above observation was the result of a deliberate opinion. In any case I am not able to agree with it. Sections 53(4) and 71 of the Act of 1925 are clear and explicit. Section 53(4) refers inter alia to any scheme of administration which under Section 71 is deemed to be a scheme settled under the Act; and it says that all such schemes may be modified or cancelled by the Court on the application of, the Board. Section 71 says that

where the administration of a religious endowment is governed by any scheme settled under Section 92 of the Code of Civil Procedure such scheme shall be deemed to be a scheme settled under this Act, and such scheme may be modified or cancelled in the manner provided by this Act;

in other words, may be modified or cancelled by the procedure laid down in Section 53. The reference in Section 71 to schemes settled under Section 92 can apply only to schemes settled before the Act for the reason that under Section 69(2) of the Act future suits under Section 92, Civil Procedure Code, are prohibited and that section is to have no application to any suit claiming any relief in respect of the administration or management of a religious endowment and no such suits can be brought except under the Act. Therefore the schemes settled by Courts under Section 92 referred to in the section must be only those which had been already settled. To construe the section otherwise would be to stultify the beneficent effect of the scheme of the Act, by making it possible for the very thing to be done which the Act was intended to prevent, vis., unending litigation about the management of religious endowments. I have no hesitation in thinking that the objection by which the learned District Judge thought himself bound does not exist.

3. Another point raised in this Court for the respondents is that although these applications may have been competent at the time when they were presented, i.e., on the 3rd January, 1927, yet as soon as the Act II of 1927 was passed, i.e., on the 19th January, 1927, their continuance became incompetent because in the corresponding section in the new Act, 'vis., Section 57(4), it is provided that schemes of administration which under Section 75 are deemed to be schemes settled under the Act, i.e., schemes settled by a Court under Section 92, must be modified or cancelled only by suit and not otherwise, instead of by application as was provided in Section 53(4) of the earlier Act. The learned Judge himself was not inclined to accede to this objection, because he thought that there was nothing under the Act of 1927 to prevent the old applications being continued if necessary by payment of additional court-fees.

4. The respondents' learned advocate canvassed this opinion of the learned Judge and says that after the new Act it would be illegal to continue the old applications. The argument is as follows:--No doubt Section 8(f) of the Madras General Clauses Act says that a repealing Act shall not affect any legal proceeding in respect of any rights, etc., required beforehand and that such legal proceeding may be continued as if the repealing Act had not been passed. But this is subject, according to Section 4, to there being nothing in the repealing Act to express a contrary intention. There is a contrary intention expressed in the Religious Endowments Act of 1927 to the effect that modifications and cancellation of schemes of administration can only take place by suit and not otherwise. Therefore to allow the old applications to continue is contrary to Section 75(4). The whole of this argument is based upon a misapprehension because Section 75 of the Act of 1927 was certainly not intended to be retrospective and can apply only to proceedings taken after it came into force. It is one thing to say that under the Act of 1927 the modification of a scheme can be obtained only by a suit. It is another thing to say that by reason of that section it is illegal to continue applications which had already been legally filed. The only provision in the Act of 1927 about continuation of proceedings begun under the Act of 1925 is Section 7(2). It says that all proceedings taken under the earlier Act may be continued after that Act in so far as they are not inconsistent with the provisions of this Act. There is nothing in Section 75(4) which is inconsistent with continuing the application presented already because as already said all that Section 75 says is that after the new Act the proceedings for modification must be begun by way of suit. There being nothing in the Act which expresses, any contrary intention, the ordinary rule of interpreting repealing legislation holds especially in view of Section 7(2). The learned Judge's view on this point was right. But it is necessary to point out that it is not necessary to convert these applications into suits; nor as far as I can see is there any question of court-fees. The applications must be heard and decided on the footing that they were validly presented and that they have been improperly dismissed.

5. The respondents' advocate wanted to raise a question that one of the reliefs claimed in the petition was not available in these proceedings. That does not now arise and may be raised before the Lower Court.

6. The order of the Lower Court is set aside and the petitions sent back to the District Court for disposal according to law. The petitioner will have his costs in three petitions.


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