Alfred Henry Lionel Leach, C.J.
1. The main question in this appeal is whether the Provincial Legislature had power to pass the Madras Temple Entry Authorization and Indemnity Act, 1939, the object of which was to throw open the Hindu temples of the Province for the purpose of worship to all Hindus who by custom or usage had previously been excluded from entry therein. The Courts below have held that the Act is intra vires the Provincial Legislature. For reasons which we shall in due course state we consider that this decision is right.
2. The suit which has given rise to the appeal was filed on the 13th July, 1939, some two months before the Act came into force. At the time of the institution of the suit there were six plaintiffs and ten defendants.. The first defendant was the executive officer of the Sri Minakshi Sundareswarar Devasthanam at Madura, one of the famous temples of South India. Defendants 2 to 7 were described as members of ' the prohibited or scheduled classes,' by which was meant that they were persons who were not entitled to enter the temple or its precincts. It was alleged that on the 8th July, 1939, defendants 2 to 7 were received by the first defendant at the entrance to the temple and were marched into the temple by the eighth and ninth defendants. The tenth defendant, who was a temple Bhattar, was present and he was directed to perform puja for the party, which he did at the shrines of Sri Vinayakar, Sri Subramanya and Sri Minakshi. The plaintiffs regarded this as a desecration of the temple and asked inter alia for the following reliefs: (1) That the first defendant as the trustee of the temple be directed to cause purification ceremonies to be carried out; (2) that the first, eighth and ninth defendants be restrained by permanent injunction from taking into the temple defendants 2 to 7 or any other member of the prohibited or scheduled classes; (3) that defendants 2 to 7 be restrained by permanent injunction from entering the temple; and (4) that the defendants be directed to deposit into Court Rs. 3,100 for the cost of the performance of the purification ceremonies.
3. That non-caste Hindus had been debarred from entering the temple is common ground and the invasion of the temple by defendants 2 to 7 on the 8th July, 1939, is not disputed.
4. The Madras Temple Entry Authorisation and Indemnity Act, 1939, received the assent of the Governor-General on the 4th September, 1939, and was published in the Fort St. George Gazette on the nth September, 1939. Section 2 provides a complete indemnity for all who had anything to do with the demonstration at the Sri Minakshi Sundareswarar Temple, Madura, on the 8th July, 1939. Section 3 states that if in the opinion of the trustee or other authority, in charge of a Hindu temple in the Province of Madras the worshippers of which are generally not opposed to the removal of the disability imposed by custom or usage on certain classes of Hindus in regard to entry into or offer of worship in the temple, the trustee or other authority may, with the approval of the Provincial Government and notwithstanding anything contained in the Madras Hindu Religious Endowments Act, 1926, or, any other law, throw open the temple to these classes and thereafter persons belonging to these classes shall have the right to enter into and offer worship in the temple. Then follows a proviso' which reads as follows:
Provided that in the case of the temples specified in the schedule to this Act and other Hindu temples in the Province which have been thrown open to the classes aforesaid before the commencement of this Act, such approval shall not be required and the said temples shall be deemed to have been thrown open to the classes aforesaid under the provisions of this section.
The schedule contains the names of seven temples of which the Sri Minakshi Sundareswarar Temple, Madura, is one.
5. Section 4 states that no person who enters or Offers worship in a temple thrown open or deemed to be thrown open under the provisions of Section 3 shall by reason only of the entry into the temple or worship there be deemed to have committed an actionable wrong or offence or be sued or prosecuted therefor.
6. Section 5 is of special importance in this case. It reads as follows:
No suit for damages, injunction or declaration or for any other relief, no prosecution for any offence, and no application or other proceeding under the Madras Hindu Religious Endowments Act, 1926, or any other law shall be instituted in respect of any entry into or worship in any temple thrown open or deemed to have been thrown open under Section 3, on the ground that such entry or worship is against the usage or custom which excludes certain classes of Hindus from such entry or worship; and no suit or other proceeding shall be instituted in respect of such entry or worship on the ground that there has been any irregularity or failure in complying with the provisions of Section 3, without the previous sanction of the Provincial Government. No suit, prosecution, application or proceeding of the nature aforesaid instituted before the commencement of this Act shall be continued thereafter without the sanction of the Provincial Government.
7. If the Madras Legislature had power to enact this statute, it is quite clear that the present action cannot be maintained because the Provincial Government 'has refused to sanction it.
8. On the 18th September, 1939, the eighth defendant filed in Court a memorandum in which he submitted that by virtue of the Act the suit was no longer maintainable and that it should be dismissed with costs. On the basis of this memorandum the Subordinate Judge framed a preliminary issue on the question whether the suit was barred by the Act. Having heard the parties, by an order dated the 3rd March, 1940, he held that the Act was intra vires the Provincial Legislature but he considered that it was necessary that the defendants should be called upon to file written statements. In his opinion the Act did not purport to give non-caste Hindus the right to enter all portions of the temple in derogation of the rights hitherto enjoyed by caste Hindus, and it was necessary to decide from what place non-caste Hindus should be allowed to worship. On the 25th April, 1940, the Subordinate Judge passed another order supplementing his order of the 3rd April, 1940. In his further order he referred to two customs or usages with regard to temple worship. The first was the custom which excluded non-caste Hindus from entering the temple and the second was that which permitted only the pujaris to enter the sanctum sanctorum, Brahmins alone to worship from the ante-chamber or Ardha Mantapam and Kshatriyas, Vysias and Sudras to worship from the Maha Mantapam. Notwithstanding that the plaintiffs did not ask in their plaint for an adjudication on the question should the Act be held to be valid, the Subordinate Judge considered that the Court should decide from what places the various communities should worship. Following this order defendants 1 to 3 and 5 to 9 filed written statements. The fourth defendant had died in the meantime and the tenth defendant allowed the case to proceed against him ex parte.
9. The Subordinate Judge who passed the orders of the 3rd and 25th April, 1940, was succeeded by another Subordinate Judge, who on the 23rd December, 1941, framed the issues arising on the pleadings. On the 26th January, 1942, he delivered a judgment dismissing the suit. He disagreed with his predecessor that the Court was called upon to decide what was the rank or precedence in worship of the various communities inter se as this question had not been raised in the plaint. The only question was whether the Madras Temple Entry Authorization and Indemnity Act was within the powers of the Provincial Legislature and as it was the suit was barred. Three of the plaintiffs appealed to the District Judge, who concurred in the judgment delivered by the Subordinate Court dismissing the suit. The same three plaintiffs have now appealed to this Court.
10. On behalf of the appellants, Mr. T.L. Venkatarama Ayyar has advanced four contentions, namely : (1) The Act does not fall within entry 34 of the Provincial Legislative List of the Government of India Act, 1935, or within any other entry; (2) if it does fall within entry 34 of the Provincial Legislative List, or within any other entry the Act is nevertheless unlawful as it offends against Section 298(2)(b); (3) the Provincial Legislature had no power to pass an Act affecting the rights of Hindus of other provinces to worship at temples in this province; and (4) in any event the plaintiffs are entitled to a decision prescribing the station from which non-caste Hindus may worship within the temple.
11. Entry 34 of the Provincial Legislative List reads as follows :
Charities and charitable institutions; charitable and religious endowments.
12. In his well-known speech in Commissioner for Special Purposes of Income-tax v. Pemsel (1891) A.C. 531, Lord Macnaghten said that charity inits legal sense comprises four principal divisions; trust for the relief of poverty, trust for the advancement of education, trust for the advancement of religion and trust for other purposes beneficial to the community not falling under any of the preceding heads. While he accepts this definition of the word ' charity ' and concedes that the words ' charitable institutions ' could include religious institutions, Mr. Venkatarama Ayyar says that inasmuch as the Words ' charitable and religious ' are both used in connection with the word ' endowments ' in the entry, the word ' charitable ' which precedes the word 'institutions ' must be taken to exclude religious institutions. In other' words, as a distinction is made between charitable and religious endowments the word ' charitable ' used in connection with ' institutions ' must be taken to have a restricted meaning. This is a plausible argument, but when the matter is fully considered it is manifest that the argument cannot be accepted.
13. The Madras Endowments and Escheats Regulation, 1817 (Madras Regulation VII of 1817) vested in the Board of Revenue the general superintendence of all endowments in land or money granted for the support of mosques, Hindu temples or colleges or for other pious and beneficial purposes. It was the duty of the Board of Revenue to take such measures as might be necessary to ensure that all endow-, ments for the maintenance of such establishments were duly appropriated to the purpose for which they were destined by the Government or the individuals by whom the endowments were made. By the Religious Endowments Act, 1863, the Government divested itself of the management of religious endowments and left to the trustees or managers this duty. The Act did not give the Court power to frame a scheme for the management of a religious endowment, but the defect was remedied by the Code of Civil Procedure of 1877. Section 539 of that Code provided that in the case of an alleged breach of an express or constructive trust created for public charitable purposes, or whenever the direction of the Court was deemed necessary for the administration of such a trust, the Advocate-General acting ex-officio, or two or more persons having a direct interest in the trust and having obtained the consent in writing of the Advocate-General, might institute a suit to obtain a decree inter alia settling a scheme for its management.
14. In view of the wide meaning of the word ' charitable ' and the fact that the Government had divested itself of the management of religious endowments there can be little room for doubt that the section was intended to apply to religious trusts as well as to other public trusts, but in Radhabai v. Chirmaji bin Ramji Sali I.L.R. (1878) Bom. 27, the Bombay High Court did raise a doubt whether the section was applicable to the devasthan of an idol or temple dedicated merely to the purposes of the idol or temple and in Karuppa v. Arumugha I.L.R. (1882) Mad. 383, this Court held that trusts for religious purposes were excluded from the purview of Section 539 of the Code of 1877. The Bombay judgment was delivered before the enactment of the Code of Civil Procedure of 1882 and as it ran counter to the intention of the Legislature the opportunity was taken to amend Section 539 to make it quite clear that the section did apply to religious endowments. Consequently the words ' or religious' were inserted after the word ' charitable ' and before the word ' endowments.
15. In his judgment in T.R. Ramachandra Aiyar v. Parameswaran Unni (1891) A.C. 531, Wallis, C.J., referred to Radhabai v. Chimnaji bin Ramji Sali I.L.R. (1878) Bom. 27 and Karuppa v. Arumugha I.L.R. (1882) Mad. 383 and Expressed the opinion that the Bench which decided Karuppa v. Ammugha I.L.R. (1882) Mad. 383 would not have come to the conclusion which it had come to it attention had been called to the fact that ever since the Statute of Elizabeth religious uses had formed one of the most important branches of charitable uses in English law so that the English lawyer who drafted the Code of Civil Procedure, 1877, must necessarily be taken to have included religious in charitable purposes unless they were expressly excluded. Wallis, C.J., had no doubt that the Legislature intended to include religious uses in Section 539 of the Code of 1877 and that the alteration in 1882 was only intended to remove doubts. With these observations of Sir John Wallis we are in entire agreement.
16. In The University of Bombay v. The Municipal Commissioner for the City of Bombay I.L.R. (1891) Bom. 217 the Bombay High Court held that the words ' charitable purposes,' had acquired a technical meaning in the Bombay Presidency and in that sense they included all purposes within the meaning of the Statute of Elizabeth. In Anjuman Islamia of Mutra v. Nazir-ud-din I.L.R. (1906) All. 384, the Allahabad High Court held that a religious purpose might be a charitable purpose and a society for religious purposes would ordinarily be a society for charitable purposes. Therefore there can no longer be any doubt that the expression 'charitable institutions' in India, as in England includes religious institutions.
17. We will now inquire into the reason why in entry 34 of the Provincial Legislative List of the Government of India Act, 1935, both the words 'charitable ' and ' religious ' are used in connection with the word ' endowments.' Section 45-A of the Government of India Act (the Act of 1915 as amended by the Act of 1919) stated that provision might be made by rules under the Act inter alia for the classification of subjects in relation to the functions of Government, as central and provincial subjects, for the purpose of distinguishing the functions of local governments and local legislatures from the functions of the Governor-General in Council and the Indian Legislature. Rules were framed under this section and were called ' The Devolution Rules.' They contained a list of central subjects and a list of provincial subjects. Clause 23 of the Provincial List was ' Religious and charitable endowments.' Rules were also framed under Section 81-A of the Act. These were called ' The Reservation of Bills Rules.' Clause 2(a) of these Rules provided -that the Governor of a Governor's Province should reserve for the consideration of the Governor-General any Bill which had been passed by the Legislative Council of the Province and was presented to the Governor for his assent, if it appeared to the Governor to contain provisions affecting inter alia the religion or religious rites of any class of British subjects in British India, unless it had been previously sanctioned by the Governor-General under Section 80-A (3).
18. Therefore before the Government of India Act, 1935, the Provincial Legislature, had, subject to the control of the Governor-General when religion or religious rights were affected, power to legislate in respect of religious charities and this power was continued in the Government of India Act, 1935. In using the words ' religious and charitable endowments ' in entry 34 of the Provincial Legislative List Parliament merely followed the wording of the Devolution Rules. It would be unreasonable to suppose that in doing so it intended to restrict the meaning of the word charitable ' where it is used in connection with the word ' institutions.' If we accepted the argument advanced on behalf of the appellants it would mean holding that Parliament had deliberately abstained from granting to Indian Legislatures the power of legislating with regard to religious institutions. This could never have been its intention. Moreover as was pointed by the Federal Court in the United Provinces v. Atiqa Begum, the entries in the Legislative Lists of the Government of Jndia Act, 1935, are not to be read in a narrow or restricted sense, and each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably He said to be comprehended in it.
19. For these reasons we have no hesitation in saying that entry 34 of the Provincial List gave the Madras Legislature power to enact the Madras Temple Entry Authorization and Indemnity Act, 1939, and that by reason of this enactment the suit is -not maintainable.
20. The respondents also rely on entry 9 in the Concurrent List,' Trusts and Trustees.' The appellants' objection here is that some of the properties were given directly to the deities of the temple and therefore to this extent there was no trust. But the argument ignores the scheme which the District Court of Madura framed in 1924 for the management of the temple. A copy of the scheme has been produced in this Court. Clause 3 of the scheme reads as follows :
The possession and management of all the properties movable and immovable, vested in the said deities or belonging or appurtenant to the Qevasthanams and the entire administration of the -Devasthanams shall be vested in the Trustee.
21. Whatever was the position before the framing of the scheme it is manifest that all the properties belonging to the temple are now vested directly in the trustee. By virtue of Section 75 of the Madras Hindu Religious Endowments Act, 1926, which came into force on the 8th February, 1927, the scheme is deemed to be one settled under that Act. Therefore the temple and its endowments constitute a trust and by virtue of entry 9 in the Concurrent List, the Provincial Legislature had power to legislate with regard to it. Entry 34 of the Provincial List is sufficient in itself, but if there were any doubt, entry 9 in the Concurrent List could be invoked.
22. The other contentions advanced on behalf of the appellants do not call for much discussion. The suggestion that Section 298(2) (b) of the Government of India Act, 1935, renders the Act void is obviously untenable. Sub-section (1) of Section 298 says that no subject of Hts Majesty domiciled in India shall on grounds only of religion, place of birth, descent, colour or any of them be ineligible for office under the Crown in India, or be prohibited on any such grounds from acquiring, holding or disposing of property or carrying on any occupation, trade, business, or profession in British India. Sub-section (2) (b) says that nothing in the section shall affect the operation of any law which recognises the existence of some right, privilege or disability attaching to members of a community by virtue of some personal law or custom having the force of law. This is really a qualification of Sub-section (1) and has nothing to do with the powers of the Legislature to legislate with regard to religious institutions.
23. The suggestion that the Act of 1939 is bad because it may affect Hindus of other provinces who happen to visit Madura and go to the temple for worship is on no higher plane. The proposition has only to be stated to be rejected.
24. The last contention is that the trial Court erred in not demarcating the places within the temple which the various communities should use for the purpose of worship. The second Subordinate Judge was quite right in not entering into a discussion of this question. The relief was not asked for in the plaint. The plaintiffs' attitude throughout was that non-caste Hindus had no right to enter the temple and that the episode of the 8th July, 1939, involved its desecration. The question did not arise on the pleadings and therefore cannot be considered. Whether it could be properly raised in other proceedings is a matter with which the Court is not concerned.
25. For the reasons given, the appeal is dismissed with costs. We certify for two counsel and fix the senior counsel's fee at Rs. 1,500.
26. We grant a certificate under Section 205 of the Government of India Act, 1935.