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T.R.K. Ramaswami Servai and anr. Vs. the Board of Commissioners of the Hindu Religious Endowments, Through Its President - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberAppeal No. 419 of 1947
Judge
Reported inAIR1951Mad473; (1950)2MLJ511
ActsMadras Hindu Religious Endowments Act, 1927 - Sections 9, 9(12), 62, 84(1), 84(2) and 84(3); Madras Hindu Religious Endowments (Amendment) Act, 1946
AppellantT.R.K. Ramaswami Servai and anr.
RespondentThe Board of Commissioners of the Hindu Religious Endowments, Through Its President
Appellant AdvocateS. Muthiah Mudaliar, Adv.
Respondent AdvocateM. Chockalingam, Adv.
DispositionAppeal dismissed
Cases ReferredDasureddi v. Venkcttasubbammal
Excerpt:
civil - jurisdiction - sections 9, 62 and 84 of madras hindu religious endowments act, 1927 and madras hindu religious endowments (amendment) act, 1946 - hindu religious endowments board (board) ordered that property in question 'excepted temple' - no steps were taken to have correctness of order questioned - trustees filed petition under section 84 (2) to set aside proceedings of board under sections 62 and 63 - petitioner contended that board has no jurisdiction as there was no temple in existence even at time prior order was passed - whether there exists temple as defined in act - hindu law recognises validity of dedications for establishment of deity and maintenance of its worship - immaterial that image of deity established before gift or bequest made for it - section 84 (1) (c).....satyanarayana rao, j.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.....
Judgment:

Satyanarayana Rao, J.

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. In the year 1937, the Hindu Religious Endowments Board demanded contribution from the trustees on the assumption that the temple of Sri Alagarswami was completed and came into existence. The claim was for 8 faslis, 1339 to 1346, amounting to Rs. 600. When this demand was made, Ramaswami Servai filed a petition before the Board alleging that theorder of the Board demanding contribution proceeded under a mistake that the family temple came into existence and that as the temple was not completed and the idol was not installed and consecrated, the endowment was entirely outside the scope of the Hindu Religious Endowments Act. In the petition, itwas claimed that there should be a declaration by the Board that the trust created by Venkataswami was outside the scope of the Act and that the Board should refund the sum of Rs. 600 collected from the trustees as contribution. This application was considered by the Board under Section 84 of the Act and the Board passed an order on 27-9-1938, in these terms :

'Sri Alagar temple, Thevaram, Periyakulam taluk, Mathurai district, is a temple as defined in the Madras Hindu Religious Endowments Act, 1926, and is also an ezcepted temple.'

4. 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.

5a. The learned District Judge found that there was no 'temple' as defined by Section 9 (12) of the Act, there was no building, there was no consecrated idol and consequently, there could have been no occasion for any public religious worship. With reference to the contention that the petition did not lie under Section 84 (2), the learned District Judge was of opinion that, as the Board held in Ex. P. 1, that it had jurisdiction to hold an enquiry under Sections 62 and 63 of the Act on the basis that the institution in question was an excepted temple, the application would lie under Section 84 (2), but according to the learned District Judge, the prior order under Ex. R. 1 became final and that it was not open to the petitioners to challenge the finality of the order under Ex. R. 1 in the present proceedings. The only ground, therefore, on which the learned District Judge dismissed the petition was that the order in Ex. R. 1 was final and its legality could not be questioned in the present proceedings. In the result he dismissed the petition.

6. In this appeal the points argued and raised in the judgment of my learned brother are as follows : (i) Is the present appeal competent (ii) Was the application maintainable under Section 84 (2) of the Act (iii) Was there a temple as defined in the Act (iv) Does the prior order of the Board preclude the petitioners from now contending that there was no temple in existence

7. Section 84 (3) of the Act, which was introduced by the Madras Amending Act X [10] of 1946, gave a right of appeal to this Court against every order of the District Judge on an application under Section 84 (2) within three months from the date of the order. The learned District Judge in the present case clearly held that the application under Section 84 (2) to avoid Ex. P. 1 would lie. He therefore purported to exercise a jurisdiction under Section 84 (2) of the Act. Whether he had in fact the right to exercise the jurisdiction under that section or not, if he had purported to exercise jurisdiction under Section 84 (2), the appellants would have an undoubted right of appeal to this Court. As pointed out by Wadaworth J, and Govindarajachari J. in Somasundaramma v. Seshagirirao : AIR1947Mad378 :

'There is a considerable line of authority that when the Court wrongly acts under an appealable provision of law and passes an order, which, having regard to the provision of law under which it is passed is appelable, an appeal will lie even though the order should have been passed under a provision of law which would not carry with it a right of appeal.'

The line of authority adverted to by the learned Judges begins from Latchmanan Chetti v. Ramanathan Chetti, 28 Mad. 127 : (14 M. L. J. 436) and the Full Bench decision in Muthiah Chettiar v. Govinddoss Krishnadoss, 44 Mad. 919 : (A. I. R. (8) 1921 Mad. 599 F. B.). There are other casea on the same line. It is unnecessary to cite them in view of the latest decision of the Bench in Somasundaramma, v. Seshagirirao : AIR1947Mad378 . Even assuming therefore that the learned District Judge was wrong in hia view that the application was maintainable under Section 84, still, the aggreived party has got a right of appeal as the learned Judge purported to exercise jurisdiction under Section 84 (2) and though on the merits he held that the application was barred by the prior order which became final. We are here concerned with an order which purports to have been passed in the exercise of jurisdiction under Section 84, whether that jurisdiction in fact existed or not. The question whether the order was a final order in the sense that, if the Board ultimately were to decide that no case for framing a scheme was made out, the proceedings should be dropped is beside the point. So far as that Court is concerned, the decision of the learned Judge is final and can be set aside only by an appeal under Section 84 (3). It is therefore a final order which attracts the provisions of Section 84(3) and an appeal would clearly lie against that order in the light of a catena of decisions holding that in such a case an appeal lies.

8. It was next contended that the application under Section 84 (2) did not lie to the District Court as thia dispute was raised in proceedings under Section 62 of the Act. The objection proceeds on the assumption that an application specifically restricted to the dispute contemplated by Section 84 (1) is necessary and only in casea where a proceeding was initiated under Section 84 (1) that an application under Section 84 (2) would lie. It becomes necessary here to bear in mind the language employed by Section 84 (1). It says :

'If any dispute arises as to whether an institution is a mutt or temple, as defined in this Act or whether a temple is an excepted temple, such dispute shall be decided by the Board.'

The section, in my opinion, clearly, enjoins a duty on the part of the Board to decide a dispute of the nature contemplated by the section at whatever stage and in whichever proceedings the dispute was raised. The dispute may be raised in a proceeding under Section 62 or otherwise. In all cases, it is imperative on the part of the Board to decide that dispute. A person may raise a dispute independently without the existence of a pending proceeding, by a petition under Section 84 (1); in such a case aldo, the dispute has to be settled and decided. When the petitioners raised the dispute under Section 62 that the Act did not apply and that the Board had no jurisdiction to frame a scheme; it would be incumbent on the part of the Board to resolve that dispute. That is the reason why the Board was obliged to consider the question of its juriadiction to proceed further under Sections 62 and 63 of the Act. It would be open to the Board, in deciding the dispute raised, to consider the question of the finality of its own order passed on a prior occasion. The fact, that the prior order was left unchallenged and therefore became final, would not preclude the Board from considering now or would not absolve it from its duty to consider the dispute raised. In deciding the dispute the Board may come to the concluaion that its hands were tied by the existence of a prior order which had become final. That does not mean that the Board is precluded from entertaining the dispute, though in its opinion it is bound by its own prior order. I therefore, agree with the view of the learned District Judge that the application under Section 84 (2) is maintainable.

9. The learned District Judge has definitely found that there was no 'temple' as defined by the Act in existence. The Board in the counter filed in the lower Court did not seriously diapute this position and indeed in view of the notice of 9-6-1940, which was the foundation for the proceedings suo motu taken under Section 62, the Board could not dispute that poaition. Even the Commissioners who considered the question did not find that there was a 'temple' as defined by the Act. One Commissioner went to the length of finding, notwithstanding that the idol was not consecrated and installed and the structure was not completed, that there was, what he calls, a notional temple. A temple is defined under Section 9 (12) of the Act as follows :

'Temple means a place, by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of, or used as of right by the Hindu community or any section thereof as a place of religious worship.'

Confining the attention to this definition, the essence of the matter is the existence of aplace of public religious worship. In the case of a temple, it becomes a place of public religious worship when the idol was installed and consecrated and the pranaprathishta or vivi-fication ceremony was performed. Until then, it is elementary knowledge that the image does not become an object of worship. The deity does not begin to reside in the idol (the visible image) until the consecration or the appropriate ceremony is completed. After the image is completed by the artist, it is brought in procession from the artist's place to the hall of ablation and thenceforward the ceremonies of consecration commence. This applies to prathishta sthalams, i. e., to the temples in which the deity is established newly by observing a certain set of rules as opposed to swayambhu sthalams, temples in which the idol or the deity isswayam vyektha or self-revealed, i. e., the image is not established by the act of men. A description of the ceremonies in the case of prathishta sthalams is to be found in Saraswathi's Hindu Law of Endowments (p. 109) and in P. R. Ganapathi Aiyar's Eeligious Endowments (p. 224). Unless and until these ceremonies are gone through, the place where the idol is installed, and in the idol itself, does not become a fit object of religious worship. We are not in this case concerned with other places of religious worship where it may be by custom or usage some stone image or wooden image becomes an object o worship. We areconcerned only with the coming into existence of the temple as contemplated by the founder, the installation of the idol of Alagarawami and its conaecration and performance of kumbabhishekam after the completion of the building. In the present case, therefore, there is no place of public religious worship. This aspect of thedefinition was clearly emphasized by the decision in Board of Commrs. for Hindu Eeligious Endowments, Madras v. Rugmini, 55 Mad.636 : A. I. R. 1932 Mad. 470, where, at p. 638, Beasley C. J. observed as follows :

'The definition of a temple in the Act requires it to be a place which is used; and this temple, not only was not used and is not being used, but it cannot be useduntil it is rebuilt. It has in fact been in ruins for many years. I, therefore, think, that the learned trial Judge was perfectly right in holding that the Board had no jurisdiction with regard to its properties.'

The learned Chief Justice pointed out, lower down in the judgment, that the Board had no jurisdiction where the temple clearly is non-existent. It is therefore difficult to hold that when there is no temple as defined in the Act, the Board could have any jurisdiction in the matter. When the Act contains a definition of the word 'temple' and when it says, in defining the words used in the Act, that unless there is anything repugnant in the subject or context, the word would have a particular meaning, it is not permissible to adopt the dictionary mean of the word. It is not suggested--and there is no reason to assume--that in the subject or context there is any repugnancy to justify the adoption of the dictionary meaning of the word in preference to the meaning given to it by the Legislature by the definition of the word in the Act. Adopting therefore the definition of the word as given in the Act, there is nothing in the evidence on record or in any of the orders of the Board which justify the inference that there is any temple or a place of public religious worship, as defined by the Act. The very foundation of the jurisdiction of the Board to apply the Act is the existence of the temple. If it did not exist, the Act ceases to apply. By this, it should not be understood that Venkataswami failed to establish a valid religious charity. According to Hindu religion, the deity always exists and soon after the property is dedicated by an appropriate method, it vests in the deity. By the dedication the property ceases to belong to the owner and vests in the deity, but until the idol is establised and consecrated and the pranaprathishta is performed, the deity does not begin to reside in the idol so as to make a proper object of religious worship. The jurisdiction of the Board over the endowments or the property dedicated commences only when appropriate ceremonies are performed, the idol is established and the place is made fit for public religious worship. Until then, it has no jurisdiction under the Act to exercise any powers over that property under the Hindu Religious Endowments Act. The trust created by the founder can well be enforced by other appropriate proceedings, but we are concerned in this case only with the jurisdiction of the Board to frame a scheme of administration in the exercise of the powers vested in it under Sections 62 and 63 of the Act. The powers can be exercised only if there is a temple in existence in the sense in which it is defined in the Act. I therefore agree with the view of the learned District Judge and Mr. Mannadi Nair that there is no temple in existence.

10. If there was no temple in existence, does tbe prior order of the Board under Ex. R. 1, preclude the petitioners from now contending that there was no temple in existence. According to the learned District Judges, as the order under Ex. R. 1, became final, it is not open to the petitioners to contend now that there is no temple in existence. The contention urged on behalf of the appellants is that the order was passed without jurisdiction and that thereforeit is a nullity. Is this contention well-founded An act done by a Court or a quasi-judicial body without any power to do so is null and void. If a Court has no jurisdiction over the subject matter, its judgment is a nullity and does not require to be set aside. On the other hand, if a judicial body has jurisdiction over the subject matter and, in the exercise of that jurisdiction, decides a matter erroneously, that adjudication is not void but has to be avoided by an appropriate proceeding such as an appeal preferred against that judgment within the time permitted by law. The distinction, therefore, between the jurisdiction of a Court to try and determine a matter and the erroneous decision of a Court in the exercise of its admitted jurisdiction must be borne in mind. The line of demarcation between an error of judgment and the usurpation of power is that, in the former case, the decision is reversible by an appellate Court and could be thus avoided, while in the latter case, the judgment is an absolute nullity. The decision in Mallikarjun v. Narhari, 25 Bom. 337: 27 I. A. 216 , which is very often cited for the position that when the parties are before the Court and present to it a controversy, which the Court has an undoubted authority to decide, the Court has jurisdiction to decide rightly as well as wrongly falls under the category of a mere error of judgment. If the Court has no jurisdiction over the subject-matter of a suit or proceeding, that the parties cannot by their consent confer jurisdiction upon the Court and convert the proceeding into a proper judicial process was settled very early by the Privy Council in the well known case of Ledgard v. Bull, 9 ALL. 191 ; 13 I. A. 134 P. C., which was followed in the later case of Minakshi v. Subramania, 11 Mad. 26: 14 I. A. 160 P. C.. Very often the jurisdiction of a Court or of a quasi-judicial body depends upon the fulfilment of a condition or the establishment of a collateral fact not touching the merits of the case. The power of a Collector to sell an estate under Bengal Act XI [11] of 1859 is dependent upon the condition that the arrears of revenue existed. But if in fact no arrear of revenue was due on an estate, the Collector has no jurisdiction to sell the property and the sale is a nullity. The procedure prescribed by Bengal Act XI [11] of 1859 and Bengal Act VII [7] of 1868 to challenge auch proceedings on the ground of irregularity or illegality in the sale proceedings would not preclude the person affected by the sale, when no arrear has existed, from challenging the sale in a civil Court; see Balkishendas v. Simpson, 25 Cal. 833: 25 I. A. 151 P. C.. Sometimes, the jurisdiction of a Court or a quasi-judicial body is de-pendent on the establishment of collateral facts. A familiar example of such a case is the jurisdiction of the Eevenue Courts to try suits under the Madras Estates Land Act. If the land is in an estate, certain suits have to be instituted only in the revenue Court. If, on the other hand, the land is not part of an estate, the ordinary civil Courts alone would have jurisdiction to entertain suits for relief in respect of auch land. Very often, therefore, as a condition precedent for the exercise of jurisdiction, Courts are called upon to decide the question whether the village in which the land is situate and in respect of which a suit was instituted was or was not an 'estate'. The decision of the question whether the village is an 'estate' or not depends upon a consideration of facts to be proved by evidence, oral and documentary. For instance, in cases falling under Section 3 (2) (d), Estates Land Act, the Court has to consider the question whether the grant in a given case was of the whole village or not. The decision of this question necessitates usually the consideration of the inam proceedings of 1860 to find out whether the grant was of the nature contemplated by Section 3 (2) (d). In such cases the decision of the Court on the question whether the village was an 'estate' or not is a collateral fact, on the decision of which would depend the forum of the suit. In the case of, what one might call, jurisdictional facts a Court by a wrong decision upon such facts cannot give itself jurisdiction which it would not otherwise possess. If a civil Court decides that the land is not an 'estate', and if that decision is erroneous, the adjudication in the civil Court on the question of fact is not final and can be interfered by the High Court under Section 115, Civil P. C., as held in Atchayya v. Sri Seetharamachandra Rao, 39 Mad..195: A. I. R. 1915 Mad 1223 . The point is also illustrated by the case of Bunbury v. Fuller, (1853) 9 Ex. 111: (23 L. J. Ex. 29), where at p. 140, ColeridgeJ. observed:

'Suppose a Judge with jurisdiction limited to a particular hundred, and a matter is brought before him as having arisen within it, but the party charged? contends that it arose in another hundred, this is clearly a collateral matter independent of the merits;'

The question, as will be seen, for decision, to settle the jurisdiction of the Court in such a case is whether the matter has occurred within the jurisdiction of a particular hundred or not, which is a collateral fact, collateral in the sense that it does not touch the merits of the case. The' collateral fact has to be decided in the first instance. The decision in Madhavarao v. Papayya, I. L. R. (1946) Mad. 760: A. I. R. 1946 Mad. 431, establishes that a decision of a a revenue Court when the land is not ryoti.is without jurisdiction and does not operate as res judicata.

11. In the light of these principles, one has to determine whether the order under Ex. R. 1, was passed by the Board without jurisdiction or whether the Board merely committed an error in the exercise of ita undoubted jurisdiction. The existence of a temple is a pre-requisite for the applicability of the Act and the exercise of the jurisdiction by the Board. It is in the nature of a collateral fact upon which depends the applicability or otherwise of the Act. As the annexure to EX. r. 1, was not filed in the case, there is nothing to show that the Board investigated the facts and came to a conclusion on the evidence placed before it that the temple in fact had existed. The statement in Ex. P. 2 that both sides agreed to have the temple declared as an excepted temple, even if it be permissible as secondary evidence of the contents of the annexure, only shows that far from there being an enquiry by the Board, the matter proceeded with the consent of the petitioners and the Board. It is clear from the extract in Ex. P.-2 that what was conceded was not the existence of a temple, but only to have the temple declared as an excepted temple. A temple cannot be declared an excepted temple unless its existence is established in the first instance. The order in Ex. R.-1 goes beyond the concession, assuming that there was one, as it states that Algar temple is a temple as defined in the Madras Hindu Eeligious Endowments Act. What is declared by Ex. R.1 is, therefore, totally different from what was agreed to by both sides, as stated in Ex. P.-2. If, in fact, there was no material on which the Board could have come to the conclusion that there was a temple in existence at the time, it is impossible to find any basis for the order under Ex. R.-1. Further, this being a collateral fact, the Board cannot by a wrong decision, assuming that there was one, confer upon itself a jurisdiction which in fact did not exist. By consent a jurisdiction cannot be conferred and there is nothing to show that the consent extended to facts establishing the existence of jurisdiction. It is common ground that the temple had never existed.

12. Under these circumstances, the case does not fall within the principle of the decision in Malikarjun v. Narhari, 25 Bom. 337 : 27 I. A. 216 as the Board had no jurisdiction at all to deal with the matter. It is not as if the Board had undisputed jurisdiction and in exercise of that jurisdiction decided a matter or a controversy placed before it in an erroneous manner. The order, therefore, in Ex. R.-1 is entirely without jurisdiction and is a nullity.

13. There is also another aspect from which the matter can be viewed. Exhibit P.-2 establishes that the very basis on which the proceedings under Section 62 were suo motu initiated by the Board was that the construction of the temple was not completed, as no steps were taken by the trustees in that direction. This is the basis on which the Board wanted to start the proceedings under Section 62. It is not now open to the Board to go behind their own notice and behind the statement of facts in that notice and contend that in fact the temple had existed either in fact or even notionally. If on the face of the notice, the Board has no jurisdiction to initiate proceedings under Section 62, the present order of the Board that it has jurisdiction to start an enquiry under Sections 62 and 63 of the Act is totally without jurisdiction. It is unnecessary to consider from this point of view the effect of the prior order Ex. R.-1 and its finality. Even if that order had become final and was passed on the footing that the Board had jurisdiction to pass it, it does not. affect the present proceedings for the simple reason that the very foundation of the proceedings is the non-existence of the temple. I am, therefore, clearly of opinion that the present proceedings of the Board are entirely without jurisdiction and that the appeal should be allowed and the order of the Board, dated 2-5-1945, in O. Appln. No. 375 of 1940 must be set aside with costs here and in the Court below.

14. As my learned brother takes a different view, the matter has to be placed before a third Judge, and for this purpose papers may be placed before the Honourable the Chief Justice.

Govinda Menon, J.

15. Under Sub-section (3) of Section 84, Madras Hindu Eeligious Endowments Act, the appellants who were the petitioners in the District Court of Madura, appeal to this Court against the judgment and decree of the learned District Judge in O. P. No. 44 of 1946. which was a petition praying that the Court may be pleased to set aside an order, dated, 2-5-1945, in O. Appln. No. 375 of 1940, passed by the Board of Commissioners for the Hindu Eeligious Endowments, Madras. Though the order of the Board of Commissioners aforesaid was stated to be passed in proceedings under Section 62 of the Act for the settlement of a scheme of administration for Sri Alagar temple, Thevaram Periyakulam taluk, Madura district, the appellants herein have construed it as an order passed by the Board under Section 84 (1) of the Act and on that basis the present appeal has been preferred.

16. The Board, by a majority, decided that it has jurisdiction to start an enquiry underSections 62 and 63 of the Act and it is this order that the appellants, construing it as one underSection 84 (1), have sought to get modified by the application under Section 84 (2) of the Act.

17. It is necessary to set out in brief outlinethe events which culminated in the filing of the above petition. One Venkataswami Servai residing in Thevaram in Periyakulam taluk, by a deed of gift, Ex. R.-2, dated 18-3-1920,endowed and dedicated certain properties in favour of Sri Alagar temple, Thevaram, theconstruction of which building had been commenced by him before his death. The workwas then progressing and his idea was to have the deity, Alagar, installed in the buildingand to have the kumbabhishekam performed after the completion of the building. By thesaid deed of gift he appointed two other persons along with himself as trustees of the said devasthanam for the conduct of the saidcharity permanently and without default and for improving the properties which have been endowed as aforesaid. By this document, it is conceded that there had been created a valid trust and dedication in favour of the deity Alagar and, therefore, the properties vested in the said deity, with the three trustees as managers thereof. The donor Venkatasami Servaidied in 1925 and thereafter the other two trustees appointed by him continued as joint trustees. One of them, Kamakshi Servai, diedon 1-4-1931 and was succeeded as trustee by his minor son, the present first appellant. Thesecond of the trustees, Alagar Servai, died on 19-6-1939, having been succeeded by the second appellant as the joint trustee. But it is to benoted that the construction of the buildingwas not completed and there was neither the installation nor the consecration of the deity, Alagar, in the temple.

18. In the meanwhile, the respondent Board took steps to collect the contribution which itis entitled to levy under the Act, and forthe eight Fasli from 1339 to 1346 both inclusive, a sum of RS. 600 was collected from the trustees. Thereupon, the first appellant filed a petition before the Board in January 1938 praying that the President of the Board may be pleased to hold and declare that the endowment under the deed of trust by Venkataswami Servai was outside the scope of the Act and for an order to refund the sum of Rs. 600collected from the trustees as contribution.Though the petition does not mention the provision of law under which it is made, the parties rightly proceeded under the belief thatthe proper provision of the statute applicable was Section 84. We see from Ex. R.-1, the order ofthe Board of Commissioners, dated 27-9-1938,that the application was treated as one under Section 84 of the Act to decide whether the institution in question was a temple as defined in the Act and if so, whether it was an excepted one or not. The decretal order of the Board is contained in Ex. R.-1; but the reasons or the annexure, containing the grounds of the decision have not been placed before the Court by either of the parties. The order, dated 27-9-1938, is in the following terms :

'Sri Alagar Temple, Thevaram, Periyakulam taluk, Madara district, is a temple as defined in the Madras Hindu Eeligious Endowments Act, 1926, and is also an excepted temple.'

Thereafter, nothing seems to have been done for some time, but in 1940, the Board, of its own accord, started proceedings under Section 62 of the Act for the settlement of a scheme of administration for the suit temple; whereupon, a preliminary objection was taken, that the Board had no jurisdiction to proceed with the framing of the scheme on the ground that the institution in question cannot be said to be a temple as defined in Section 9 (12) of the Act and, therefore the Act had no appliction. Two of the Commissioners who heard this objection differed in their opinion, Commissioner III holding that the Board had no jurisdiction to frame a scheme, while Commissioner I held that it had jurisdiction. The matter was taken before a full Board who by a majority held that the Board had jurisdiction to start the enquiry and pass the order, dated 2-5-1945, about which reference has already been made. After that the appellants filed O. P. No. 44 of 1946 which has given rise to this appeal, under Section 84 (2) of the Act and Section 151, Civil P. C., for setting aside the order of the Board in O. Appln. No. 375 of 1940, dated 2-5-1945. The learned District Judge found that even though the construction of the temple had not been completed and no deity had been installed or consecrated therein, still the Board had jurisdiction to frame a scheme because the previous order of the Board in O. Appln. No. 58 of 1938, dated 27-9-1938, holding that the institution in question was a temple as defined in the Act, had become conclusive since no proceedings were taken to modify or set aside that order within the time allowed by law. Upholding the objection taken on behalf of the respondent Board, the learned Judge dismissed the petition and the present appeal is from that order.

19. At the very outset it seems to me that the appeal itself is incompetent. The order of the Board holding that it has power to frame a scheme is certainly not a final order but is in the nature of a preliminary order. If, after enquiry, the Board were to hold that no schemeshould be framed there is an end of the matter. If, on the other hand, a scheme is settled as provided under Section 63 of the Act, then it is open to the trustees or any person having an interest in the institution, within six months from the date of the publication of such scheme, to institute a suit in the Court to modify or set aside such an order (last clause of Section 63). Therefore, it is clear that the proper remedy is to file asuit in case the Board decided to frame a scheme, and not an application under Section 84 (2)of the Act. Moreover, the proceedings before the Board, being under Section 62 of the Act forframing a scheme under Section 63 it cannot be said that there was any application by the trustees requesting the Board to exercise its functions under Section 84 (1) of the Act, which it had alreadydecided by its previous order, dated 27-9-1938. It is not pretended that the present application before the lower Court is a suit as contemplated by the last clause of Section 63. The petition itself is designated an Original Petition and not an Original Suit since what is contemplated by the last clause of Section 63 is a regular suit to modify or set aside an order by which a scheme as settled for the institution. I am therefore ofopinion that both the application before the District Judge and the appeal to this Court are incompetent.

19a. One of the arguments advanced by the learned counsel for the appellants is to theeffect that when the Board suo motu embarked upon the task of attempting to settle a scheme by taking action under Section 62 of the Act, a dispute has arisen as to whether the institution in question is a temple as defined in the Actor not and when the Board, as a preliminary assue, decided that question the provisions of Section 84 (2) have been immediately attracted andtherefore the petition before the lower Court and the present appeal are maintainable. This contention overlooks the fact that already adispute had arisen and a decision arrived at,which, by not being modified or set aside, has now become final and cannot be questioned. To my mind, it is a fallacious argument tocontend that in spite of an earlier decision,every time the appellants contend that the Act is not applicable to this institution, a disputehas arisen as envisaged in Section 84. If the earlierdecision of the Board was the outcome of an action entirely without jurisdiction passed by a tribunal incompetent to decide the dispute,then, how is it that the Board is competent to decide it now and how does an application under Section 84 (2) lie to the District Court? If the Board is now proceeding upon a course of action unwarranted by law in investigating as to whether the institution is a temple as defined inthe Act or not and takes steps to frame a scheme, the proper remedy for the appellants is either to file a regular suit restraining the Board from proceeding further or to approach this Court, if the appellants have any such legal right, for the issue of one of the prerogative writs for preventing the so-called illegal action of the Board. Without resorting to either of the above remedies, the appellants cannot now be heard to say that the later order of the Board is tantamount to a decision under Section 84 (1) of the Act and a petition lies to set it aside under Section 84 (2). Therefore, on the appellants' own showing, since the order, dated 2-5-1935, was passed by the Board in the exercise of its proper jurisdiction, it necessarily follows that the earlier order also stands on the same footing.

20. But Mr. Muthiah Mudaliar, for the appellants, contends that since, admittedly, there is no temple building in existence and no deity installed or consecrated, the institution cannot be a temple as defined in Section 9 (12) of the Act or the trust a 'religious endowment' as defined in Section 9 (11). For this purpose, reliance is placed on Vythilinga Pandara Sannadhi v. Sadasiva Ayyar, 55 M. L. J. 605 : A. I. R. 1928 Mad. 1272 and the appeal therefrom reported in Board of Commrs. for H. R. E., Madras v. Rugmini, 65 Mad. 636 : A. I. R. 1932 Mad. 470. In the earlier case, Kumaraswami Sastri J. has held that, where there is no temple in existence as a place of worship when the Act came into force, the old temple having fallen into ruins or having been demolished long ago Section 84 of the Act does not give the Board any power to call upon the trustees to account for. the endowed properties or to direct them to rebuild the temple or to apply the income in a particular manner by invoking the doctrine of cypres for the purpose of dealing with the income. It was therefore declared the Act did not apply to the properties which originally were dedicated or endowed for a temple which had been demolished or destroyed long prior to the coming into existence of the Act. Beasley C. J. and Cornish J. in appeal from the above decision, agreed with the view of the trial Judge and held that the Board had no jurisdiction where the temple was clearly non-existent, not temporarily but permanently, and there was no apparent intention of bringing it into existence again. But where it had been temporarily abandoned as a place of worship either on account of its being washed away by flood or submerged or burnt down, in such a case there is no permanent annihilation of the institution and as such the Act would apply to the properties of such a temple. This is clearfrom the definition of the word 'temple' in Section 9 (12) to which reference has already been made. In order that the Act should be made applicable, the institution in question should be used firstly, as a place of public religious worship and secondly, dedicated to, or for the benefit of, or used as of right by, the Hindu community or any section thereof, as a place of religious worship. The definition connotes two distinct matters. There should be firstly a place of public religious worship and secondly dedication or user by the Hindu community or any section thereof. It is unnecessary that a building should be in existence: for, it is a matter of common knowledge that in many places in South India there are idols being worshipped without a roofing to cover the idol. One is aware of idols in forests or under trees without any roofing. In the present case, there is no user of the place for the purpose of religious worship because it is admitted that though an idol is in existence, it has not been installed or consecrated. The creator of the trust, as is seen from the trust deed, EX. r-2, contemplated the existence of the temple with the deity installed though the building had not been completed, because in more than one place in the document it is clearly mentioned that the dedication is to the deity, in the temple to be built thereafter. Therefore it may be that the contention of the learned advocate for the appellants that the order of the Board dated 27-9-1938 is a wrong order on the merits cannot be rejected.

21. The question then arises whether, without setting aside the order, it is open to the appellants to contend that the Board now has no right to take proceedings to frame a scheme. In order to justify such a contention the argument is advanced that the order of the Board evidenced by Ex. R-1 is ab initio void and without jurisdiction, because the Board acted absolutely without any jurisdiction in holding that where there was no public worship, a temple as defined in Section 9 (12) exists. Eeliance was placed for this contention on Thiruvengadam v. H. R. E. Board, Madras, I. L. R. (1946) Mad. 268 : A. I. R. 1945 Mad. 273. The facts of that case were as follows : There was a separate charity connected with the Sri Nachiar Temple at Srivilliputhur. Treating it as a specific endowment attached to the temple, the Board levied an annual contribution under Section 69 whereupon, the trustee filed a petition under Section 84 (2) of the Act before the District Judge for a decision whether the endowment came within the purview of the Act. The District Judge, on the acquiescence of the Board that Section 84 applied to such a case, held that the charity did constitutea specific endowment. In spite of this decision the trustee filed a suit in the Sub-Court for a declaration that the charity is a private charity and should not be regarded as a specific endowment. On the Subordinate Judge dismissing ther suit holding that the previous order of the District Judge under Section 84 (2) was a bar to the suit, an appeal was filed to the High Court. Leach C. J. and Yahya Ali J. held that, sincer the District Judge had no power, to pass an order on an application under Section 84 (2) because the dispute was not one of the nature referred to in the first sub-section, the suit was maintainable and therefore held that the order of the Subordinate Judge dismissing the auit was not correct. Because Section 84 refers only to a mutt or temple as defined in the Act, the learned Judges were of opinion that it had no application to the question as to whether the endowment is a specific endowment to the temple or a private charity, even though the trustees themselves had invoked the powers under Section 84 for a decision under that section. It is contended that this decision is in favour of the appellants for the reason that the principle underlying it is to the effect that, where the original decision was one without jurisdiction, even if the parties invited the Court to pass it and acquiesced in such a decision, a subsequent suit is still maintainable. If the circumstances of the present case are exactly similar to those in Thiruvengadam v. H. R. E. Board, Madras, I.L.R. (1946) Mad. 268 : A. I. R. 1945 Mad. 273, I am bound by that decision. But in my view the facts of the present case are different. That the original donor intended the existence of a temple is clear; and therefore the question before the Board was whether a temple as defined in Section 9 (12) existed or not. The Board had to decide whether such a temple or institution was used as a place of public religious worship and dedicated to, or for the benefit of or used as of right by, the Hindu community or any section thereof, as a place of religious worship. It may be that the Board wrongly decided that the place was used as a place of public religious worship. But that would not be sufficient to justify the view that the Board had no initial jurisdiction. The utmost that could be said is that the action of the Board amounted to a wrong exercise .of the jurisdiction vested in it, on the merits of the case and hence such a wrong decision ought to have been set aside by appropriate proceedings under Section 84 (2) of the Act, in default of which the order would become final. The question whether a suit can be filed for that purpose has now been set at rest by the amendment of Section 84 itself probably as a result of the deci-sion in Iswarananda Bharathi Swami v. Board of Commissioners for Hindu Religious Endowments, Madras, 54 Mad. 928 : A. I. R.1931 Mad. 574. In my opinion the Board, in passing the order, Ex. R-1, acted in full exercise of its jurisdiction. I would clarify my view by an illustration. Suppose there is a templesituated in and appurtenant to a residential house which the owner uses as a private temple where members of the Hindu community are not allowed to worship and suppose a dispute arises before the Board that such an institution is one coming within the definition in Section 9 (12) and the Board, after enquiry, wrongly decides that it is used as a place of public religious worship and dedicated to, or for the benefit of, or used as of right by, the Hindu community or any section thereof, can it be said that the order of the Board is without jurisdiction I am of opinion that though the order may be wrong, it is in the exercise of juriadiction. As I have already pointed out, a building is not a necessary sine qua non for the existence of a temple. The point before the Board was whether the temple in existence was one as defined in Section 9 (12), i. e. fulfilling the necessary conditions laid down in that definition, in order that it might be a temple as defined in the Act. Where a Court or a tribunal having power or jurisdiction to decide a particular dispute comes to a wrong conclusion, it is difficult to say that such an order is void. The observations of the Judicial Committee in Malikarjun v. Narhari, 25 Bom. 337 : 27 I. A. 216 P. c. have to be applied to such circumstances :

'The Code goes on to say that the Court shall issue a notice to the party against whom execution is applied for. It did issue notice to Ramalingappa. He contended that he was not the right person, but the Court having received his protest, decided that he was the right person, and so proseeded with the execution. In so doing, the Court was exercising its jurisdiction. It made a sad mistake, it is true; but a Court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken the decision, however wrong, cannot be disturbed. The real complaint here is that the execution Court construed the Code erroneously. Acting in its duty to make the estate of Nagappa available for payment of his debt, it served with notice a person who did not legally represent the estate, and on objection decided that he did represent it, But to treat such an error as destroying the jurisdiction of the Court is calculated to introduce great confusion into the administration of the law.'

22-23. In this connection, it is useful to refer to the dictionary meanings of the word 'temple'. In the Concise Oxford Dictionary, at p. 1261, the meaning of the word 'temple' is given as follows : 'Edifice dedicated to service of God; or place in which God resides.'

In the new English Dictionary, Vol. IX, Part II, the meaning for the word 'temple' is given thus :

'An edifice or place regarded primarily as thedwelling place or house of a deity. Hence an edificedevoted to divine worship. Historically, the word is applied to sacred buildings of Egyptians, Greeks, Romans, etc., but now to those of Hinduism, Budhism,Confucianism, Taoism, Shudasm, etc.'

It seems to me therefore that when the donor endowed the property to the Alagar temple which was being built by him, there was a place which was intended to be used as a place of divine worship and there would have been nothing wrong in characterising that unfinished building as a temple as understood in common parlance. If the Board is invited to decide whether such a temple is an institution coming within the definion of Section 9 (12) and accordingly, the Board comes to a conclusion, which is either right or wrong, I fail to see how it can be successfully argued that the Board's action was entirely without jurisdiction and therefore ab initio void. To a case like this, the decisions like Ledgard v. Bull, 9 ALL. 191 : 13 I. A. 134 P. C. and Minakshi v. Subramania, 11 Mad. 26 : 14 I. A. 160 P. C. have no application, because in both those cases the Courts dealing with the proceedings had no initial jurisdiction and therefore any acquiescence by the parties in the Court's jurisdiction cannot confer a right on it.

24. It is noteworthy that the appellants herein by their own misconduct, are gaining an advantage which the law cannot countenance. The maxim, nemo ex suo delicto meliorem suam conditionem facere potest (No one can better his condition by his own wrong), applies to the facts of this case very well. It is seen from Ex. P. 2 that the landed properties endowed under Ex. R. 2 yield roughly an income of nearly Rs. 3000 annually. In Ex. R. 3, dated January 1938, appellant 1 herein states as follows :

'It is only for the last few months that the petitioner has been constructing the temple in which the family deity Alagarawami is to be installed. It will take another two or three years to complete the temple.'

In the application to the lower Court dated 11-9-1946, we find the statement, in para. 6, that the temple and the deity had not come into existence even on that date. The donor dedicated the properties as long ago as 18-3-1920 and he died in 1925. More than a quarter of a century has now elapsed and the trustees have not performed the trust imposed upon them by constructing the temple and installing the deity. In these circumstances can they be allowed to say :

'though we are trustees and are enjoying the income from the trust property we have not yet built the temple and performed the Pratkishta and therefore the temple has not come into existence and the Board has no jurisdiction '

In my view, a statement like that emanating from the trustees carries with it its own condemnation. Therefore, it seems to me that, if the argument on behalf of the appellants is to be accepted the result comes to this, that the appellants are gaining an advantage as a result of their own misconduct. Moreover, if the appellants do not construct the temple at all and if, according to their arguments, Section 9 (12) of the Act has no application, then the Board, in my view, cannot even proceed for the settlement of a scheme by resorting to a Court of law under Section 73 of the Act. How far Section 92, Civil P. C., in such circumstances, would be applicable is really a moot question and as I am not concerned at this stage to give an answer on the applicability of Section 92, Civil P. C., I refrain from doing so.

25. I am therefore of opinion that the decision of the learned District Judge holding that the order Ex. E. 1, since it was not set aside by appropriate proceedings within the time allowed by law, has become final, is right, and if finality is thus attached to it, it is not competent for the appellants to question its correctness now.

26. The appeal is therefore dismissed with costs. With due and profound respect to my learned brother I regret to find that I cannot agree with his decision and therefore the appeal will have to be heard by another Judge whom my Lord the Chief Justice nominates.

[As the two Judges differed, the appeal was referred to a third Judge, Viswanatha Sastri J., for opinion.]

Viswanatha Sastri, J.

27. This case discloses a divergence of opinion among the legal minds that have been applied to its decision, the Commissioners of the Madras Hindu Religious Endowments Board, the learned District Judge of Mathurai, and two learned Judges of this Court who have differed in their reasoning and conclusions. I need recapitulate only the essential facts.

28. Venkataswami Servai, a pious Hindu of Thevaram village, Mathurai district, executed a deed of gift Ex. R. 2, dated 18-3-1920, endowing about twenty acres of nanja lands for the upkeep of 'Alagarswami temple now under construction'. The deed provided that after the completion of the building by the donor in his village, the deity Alagarswami should be installed therein and Kumbhabhishekam (consecration ceremony) performed. Three personsincluding the donor were constituted trustees under the deed for carrying out these objects, the management of the endowed lands and the conduct of the daily pooja and periodical festivals in the temple. The donor died in 1925 and the other trustees followed suit. Today things remain where they stood in 1923. The building is yet unfinished, the idol Alagarawami, though said to be ready for its reception into the temple, has not been installed and the place could not be used as a place of public worship. The heirs of the two stranger trustees claim to be the present trustees and have been in possession for a long time now of the incomplete building and the endowed lands yielding a considerable annual income. I agree with Govinda Menon J. that the conduct of the trustees is blameworthy. They have shown a keen appreciation of the fact that Courts provide but an imperfect instrument for rectification of wrongs and have not evinced any anxiety to fulfil the purposes of the trust. I shall endeavour, however, to disembarrass the case of the prejudice that might arise from their conduct.

29. The Madras Hindu Eeligious Endowments Board (hereinafter called the Board) collected a sum of Rs. 600 from the trustees as contribution leviable under the Madras Hindu Eeligious Endowments Act of 1927 (hereinafter called the Act) on 'temples' as defined in the Act. One of the trustees filed a petition in January 1938 (EX. r. 3) before the Board, praying the Board

'to hold and declare that the endowment under the deed of trust of Venkataswami Servai is outside the scope of the Act and to order refund of rupees six hundred collected from the trustees as contribution.'

30. The Board treated the petition as one under Section 84 of the Act and passed an order,Ex. R. 1, dated 27-9-1938 in these terms :

'Sri Alagar Temple, Thevaram, Periyakulam taluk, Madura District, is a temple as defined in the Act, 1926, and is also an excepted temple.'

The annexure to the order of the Board is not in evidence. The trustee appeared by counsel before the Board when this order was passed. In a later proceeding of the Board (EX. P. 2) there is a statement that the counsel for the trustee agreed to have the temple declared an excepted one at the time when the Board passed its order, Ex. R. 1. It is not clear whether counsel admitted that there was a temple or whether he stated that if the Board decided that there was a temple, it could declare it an excepted temple. Exhibit R. 3, the petition of the trustee, had stated that, as there was no temple in existence, the Act did not apply. Be it as it may, matters were allowed to rest there till 1940 when the Board started proceedingsfor the settlement of a scheme for the 'Sri Alagar temple' under Section 62 of the Act.

31. The proceedings for the settlement of a scheme dragged on from 1940 till 1945 and apparently no soheme has yet been framed. The two trustees objected to the jurisdiction of the Board to frame a scheme in respect of a temple which, according to them, had never come into existence. The Board, by a majority of its members, overruled the objection of the trustees by its order, Ex. p. 2, dated 2-6-1945 and held that it had jurisdiction to frame a scheme. One of the members of the Board who was of the majority, held that there was a temple, as the founder had intended there should be a temple and had even called the building a temple and endowed it with properties. Another member of the majority (with whom the President agreed) held that the 'notional existence of the temple was sufficient for the Board to act', and that since the donor 'had laid the foundation of the building' and 'given a name to the deity' he had 'conceived more or less the temple'. That the 'conception' did not result in the birth of a temple was a matter of no consequence to him and in his view, 'the structure would still be a temple to which the Act applied' Another reason given by the majority--and one that has been canvassed at great length in this Court--was that the Board had, in the exercise of its jurisdiction under Section 84 (1) of the Act decided in Ex. R. 1, dated 27-9-1938 that the institution was a temple and an excepted one, and the said order of the Board, not having been set aside or modified in the manner provided by Section 84 (2), had become final and conclusive in the soheme proceedings. After deciding that the institution was an excepted temple, the Board was about to frame a scheme when the trustees started the proceedings which have culminated in this appeal.

32. The trustees filed O. P. No. 44 of 1946 on the file of the District Court of Madeira under Section 84 (2) of the Act to set aside the decision of the Board, Ex. P. 2, dated 2-6-1945, to the effect that there was here a temple amenable to the jurisdiction of the Board in respect of which a scheme could be framed. The learned District Judge of Madura, while holding that the temple building was incomplete, the deity had not been installed and the public could not use the place for worship, dismissed 0, P. No, 44 of 1946, on the ground that the prior order of the Board, Ex. R. 1 dated 27-9-1938, declaring that there was here a temple and an excepted temple, had been allowed to become final and conclusive under Section 84 (2) of the Act. The trustees appealed to this Court against the order of the learned District Judge, and Satyanarayana Rao and Govinda Menon JJ. who heard the appeal, differed on most of the points raised and also about the result of the appeal. As the case is one of some difficulty, it would be convenient to deal separately with each of the points raised by the learned counsel appearing in the case.

33. Objection is raised by the Board to the maintainability of O. P. No. 44 of 1946 in the lower Court under Section 84 (2) of the Act. Govinda Menon J. upheld the objection, but I am unable to agree. The argument for the Board is that its order Ex. P. 1 dated 2-5-1945, overruling the objections of the trustees and holding that it had jurisdiction to proceed with the scheme is an interlocutory order or preliminary decision, analogous to the decision of a preliminary issue in a suit, and it is only if and when a scheme is framed by the Board under Section 63 that the trustees have a right of suit to set aside the scheme under Section 63, Clause 7 of the Act. Govinda Menon J. holds that if, as alleged by the trustees, the Board had no jurisdiction to declare the institution a temple and an excepted temple, under Section 84 (1) when it passed the order EX. r. 1 dated 27-9-1938, it had equally no jurisdiction to decide the same question in the later proceedings for framing a scheme and that the proper remedy of the trustees is not to file an application under Section 84 (2) of the Act but to file a suit for an injunction against the Board or to approach this Court if the appellants have any legal right, for the issue of one of the prerogative writs for preventing the so-called illegal action of the Board.' Apparently the learned Judge was thinking of the writs of qua warranto and prohibition and was not reminded of the Ryots of Garbando v. Zamindar of Parlakimidi . The remedy by an original suit would not be available to the trustee by reason of the prohibition contained in Section 84 (1) of the Act unless the initiation of the proceedings was wholly without jurisdiction. Be this as it may, I consider that the existence of other remedies, if any, did not stand in the way of the trustees claiming an enquiry under Section 84 (l) of the Act.

34. A dispute as to whether an institution is a 'temple' as defined in the Act may arise in the course of the numerous proceedings which the Board might claim to initiate in respect of temples, in the exercise of the powers conferred upon the Board by the several sections of the Act. Such a dispute may arise in the course of any of the proceedings contemplated by Sections 18, 38,42, 45, 51 to 57, 69, 60, 65, 69, 70, 73, 75-A, 76 and 80. A decision of the dispute as to whether an institution is a temple as defined in the Actmight be essential before further action is taken under the above sections by the Board or the Assistant Commissioner, as the case may be. Section 84 (1) is designedly framed in wider terms. When the Board decides a dispute as to whether an institution is a 'temple' as defined in the Act, whatever be the nature or stage of the proceeding in which such dispute arises or decision is given, the Board acts under Section 84 (1) of the Act. Section 84 (1) does not insist that the dispute should be brought before the Board by means of an independent application or original petition or that the dispute contemplated by the section should be the only matter arising for the decision of the Board. If this view is correct, the remedy under Section 84 (2) was open to the trustees to set aside the decision of the Board, given in the course of the proceedings for settling a scheme, that there was here a 'temple' as defined by the Act.

35. Govinda Menon J. holds that it could not be said that there was here a dispute of the kind referred to in Section 84 (1) of the Act, because that dispute had already been decided by the prior order of the Board, Ex. R. 1, dated 27-9-1938. According to his view, there could be no further dispute about the character of the institution as that had been finally decided by Ex. R. 1. Therefore, he holds that Section 84 (1) would not apply to the case. But it must not be forgotten that one of the points debated before the Board in the scheme proceedings was that the prior order of the Board EX. r. l was wholly without jurisdiction and the whole matter was res integra. Further a plea of res judicata is no bar to the institution of a suit but only a bar to its trial. It is only the decision of a tribunal of competent jurisdiction that is a bar to a subsequent proceeding for the same relief, and the plea of the trustees in the present case is that the Board has no jurisdiction to pass the prior order, Ex. R. 1. It is apparently for these reasons that the Board, in the present case, held that the dispute raised by the trustees was one under Section 84 (1) of the Act and gave its decision (Ex. P. 2), dated 2-5-1945, holding that the institution was a 'temple' in respect of which it was competent to the Board to frame a scheme. Whether the Board decided the dispute by holding a fresh enquiry or by holding that its prior order was conclusive, in either case, it seems to me that there is a decision of the Board under Section 84 (1) which attracts the provisiona of Section 84 (2). For these reasons I hold that the petition to the lower Court was competent.

36. I am also of the opinion, differing from Govinda Menon J. that the appeal to this Court was competent. The learned District Judge held that the petition (O. P. No. 44 of1946) filed by the trustees to set aside the order of the Board, Ex. P. 1, dated 2-5-1945, was maintainable under Section 84 (2) of the Act. In entertaining and deciding the petition, he purported to act under and exercised the jurisdiction conferred by Section 84(2) of the Act. Section 84 (3) gives a right of appeal to this Court against every order of the District Judge passed under Section 84 (2). Even though the District Judge might have erred in holding that Section 84 (2) applied to the case, still, as he purported to entertain and decide the petition in the exercise of the jurisdiction assumed to have been conferred upon him by that section, the right of appeal given to. an aggrieved party by Section 84 (3) against an order under Section 84 (2) is attracted. This is the view that has consistently been taken by this Court. In the leading case of Abdul Rahiman Sahib v. Ganapathi Bhatta, 23 Mad. 517 : 10 M. L. J. 305 the District Judge, under a misconception of his powers under Section 43, Guardians and Wards Act, granted an injunction and appointed a receiver in a proceeding to remove a guardian. An appeal would have lain in this Court if the orders had been made under Sections 492 and 503, Civil P. C. of 1882 then in force. This Court entertained an appeal and reversed the orders of the District Judge as having been made without jurisdiction. The objection to the maintainability of the appeal was overruled by this Court in those terms :

'The fact that the District Judge had no power in this case to pasa an order under these sections (Sections 492 and 503, Civil P. C. of 1882) does not bar this Court from treating the order as having been passed thereunder for the purpose of entertaining an appeal against the order, seeing that there is no provision of law under which the Judge could pass an order attaching the property or appointing a receiver without such order being subject to appeal.'

An order purporting to be passed by a Court of first instance under an appealable provision of law will be open to appeal even though, on the facts, the order is one that should not have been passed under that provision. Authority for this view will be found in Muthiah Chettiar v. Govinddoss Krishnadoss, 44 Mad. 919 : A.I.R.1921 Mad. 599 and Somasundaramma v. Seshagiri Rao : AIR1947Mad378 .

37. The question that now arises for. consideration and on which my learned brethren have differed is as to the effect of the prior order of the Board, Ex. R. 1, dated 27-9-1938, declaring the institution a temple and an. excepted temple. Under Section 84 (4) the decision of the Board is final subject only to the result of an application in the District Court under Section 84 (2) or appeal to this Court under Section 84 (3).

No such application was at all preferred in the present case to set aside the order Ex. R. 1. Govinda Menon J. in effect, holds that the Board had jurisdiction under Section 84 (1) of theAct to decide whether an institution in question was a temple or not and the decision in Ex. R. 1, right or wrong, had become final and conclusive and could not be reopened or questioned inthese proceedings for framing a scheme. Satyanarayana Rao J. holds that the existence of a temple was essential to give jurisdiction to the Board to start an enquiry under Section 84 (1) ofthe Act, that there was no temple in this case at the time when the Board passed its order,Ex. R. 1, and that the order of the Board, Ex. R. 1, was one passed wholly without jurisdiction, and therefore null and void. It is a striking proof of the fineness of the distinction between want of jurisdiction and the erroneous exercise of jurisdiction in particular cases, that any learned brethren while purporting to followsettled principles, have arrived at contrary results.

38. The expression 'want of jurisdiction' isoften loosely used to cover a variety of objections to orders or judgments deciding rights of parties. If, on the face of the order and a reading of the relevant statutory provisions under which action was taken, the jurisdiction of the tribunal is found to have been ousted, it is a patent defect of jurisdiction and the order of the tribunal will be a nullity. The want of jurisdiction in such a case is patent or apparent, the order being on the face of it 'a speakingorder' to use the language of Earl Cairns L. C. in Walsall Overseers v. L. & N. W. Rly. Co., (1878) 4 A. C. 30 : 48 L. J. Q.B. 65. The present case does not fall under this category. The order of the Board, EX. R. 1 is ex facieregular and apparently within the ambit and scope of the power conferred on the Board by Section 84 (1) of the Act. On the face of the order, itcannot be said that the Board acted outside itsjurisdiction.

39. There may be other cases where the want or defect of jurisdiction is not apparent from the record but is latent, consisting ofmatters which are collateral or extrinsic to the merits of the case. Objections founded on the personal incompetency of the Judge or the nature of the subject-matter or the absence of, some essential preliminary to the enquiry are defects of this type. The Court may not beproperly constituted, the Judge or member of the Court being disqualified. Jurisdiction over the subject-matter may not have been given or might have been taken away. Such objections, if substantiated, would render the decision one passed without jurisdiction. Theobservations of Sundara Aiyar J. in Atchayya v. Sri Seetharamachandra Rao, 39 Mad. 195 : A. I. R. 1915 Mad. 1223 that, if a Court, by an error of law in deciding whether it had jurisdiction, exercised jurisdiction not vested in it, the High Court's power to interfere under Section 115 cannot be objected to on the ground that the Court had jurisdiction to decide whether it has jurisdiction or not had reference to this class of cases. The decision in Madhavarao v. Papayya, I.L.R. (1946) Mad. 760 : A.I.R. 1946 Mad. 431 is another illustration of this class of cases. In this case ifc was held that decrees of revenue Courts both original and appellate, decreeing rent in favour of a landholder were without jurisdiction and nullities, as the land in respect of which rent had been decreed was not ryoti land, that being a condition precedent for the exercise of jurisdiction by revenue Courts. The general rule is that

'no Court of limited jurisdiciion can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit to its jurisdiction depends.';

per Coleridge J. Bunbury v. Fuller, (1853) 9 Ex. 111 : 23 L. J. Ex. 29, cited by Blackburn J. with approval in Pease v. Chaytor, (1863) 3 B. & Section 620 : 122 E. R. 233 : 39 L. J. M. O. 121.

39a. Unless forced to that conclusion by the express language of an enactment, Courts will not countenance the view that a body of limited jurisdiction can, by an erroneous decision of its own, extend its jurisdiction. Satyanarayana Rao J. holds that the present case falls under this category.

40. There is a third class of cases where the objection to an order is that

'the Judge has erroneously found a fact which though essential to the validity of this order, he was competent to try. This objection proceeds on the assumption that, having general jurisdiction over the subject matter, he properly entered upon the enquiry but miscarried in the course of it.'

The Colonial Bank of Australasia v. William,(1874) 5 P. C. 417 : 43 L. J. P. C. 39. It is in connection with this class of cases that the oft-quoted observation of the Judicial Committee in Mallikarjun v. Narhari, 25 Bom. 337 : 27 I. A. 216 P. C. repeated in Joy Chand Lal Babu v. Kamalaksha Chowdhury that a Court, has jurisdiction to decide rightly as well as wrongly, applies. Where a Judge decides an issue or convicts a man without evidence or misconstrues a statute or misconceives a point of law in the course of reaching his decision, he could not be said to have acted without jurisdiction. If the Court has gone wrong in such matters, the remedy of the aggrieved party is by wayof appeal from the erroneous order, if the statute provides an appeal. Otherwise, the decision, however wrong, cannot be disturbed or questioned in subsequent proceedings. The error, however serious, does not amount to an usurpation of jurisdiction and the decision cannot be ignored as a nullity or impeached or reopened in collateral proceedings. The respondent Board maintains that the present case falls within this last category.

41. There have been instances where, by statute, jurisdiction has been conferred upon a tribunal not conditionally upon the existence of a state of things, but it is left to the tribunal itself to decide the question whether or not the state of things exists, as part of the jurisdiction conferred upon it. The distinction between the two types of cases is well brought out in the following passage from the judgment of Lord Esher M. R. in the Reg v. Income-tax Commissioners, (1888) 21 Q. B. D. 313 : 57 L. J. Q. B. 513 :

'When an inferior Court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist) to proceed further or do something more ..... In the second of the two cases, I have mentioned, it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends . . . .'

41a. This statement of the law has been approved by the Judicial Committee in Rex v. Nat Bell Liquors Ltd., (1922) 2 A. C. 128 : 91 L. J. P. c. 146, and followed in Rex v. Bloomsbury Income-tax Commissioners, (1915) 3 K. B. 768 : 85 L. J. K. B. 129. If a Tribunal is given jurisdiction to embark upon an enquiry and also decide the preliminary, extrinsic or collateral facts which related to its jurisdiction, then, its decision on such matters though erroneous, will not render its ultimate decision devoid of jurisdiction. The error is a matter for correction by way of appeal or otherwise as the statute may provide just like an error affecting the decision on the merits of the case.

42. The facts, on which the presence or absence of jurisdiction turns, may themselves be such as can only be determined as part of the general enquiry and in such cases, the question of jurisdiction does not depend on the ultimate view of the Court as to the truth or otherwise of the facts investigated. To find out whether such a large and extended jurisdiction, of this type has been given to the Board, the scheme of the Act and the terms of Section 84 have to be carefully examined. Unless the jurisdiction to decide the preliminary facts or extrinsic and collateral matters which must exist before the Board decides a dispute under Section 84 has also been given to the Board, it will be usurping jurisdiction, if, by erroneous decision on those preliminary facts or extrinsic and collateral matters, it proceeds to decide the merits of the dispute.

43. In the light of these principles, I shall examine the provisions of the Act and consider the effect of the order of the Board, EX. r. 1, declaring the institution to be a temple and an excepted one. I may at once point out that the only point now open to the appellants is whether the order was passed without jurisdiction. Its soundness in law or on the facts is not a matter that can be canvassed in these proceedings. It is only if Ex. R. 1 is held to be an order passed without jurisdiction, the matters purporting to be decided by it can be considered afresh by the Board in the proceedings for framing a scheme or by the Court in this appeal. The language of Section 84 is wide and comprehensive to the effect that, if any dispute arises as to whether an institution is a temple as defined in the Act, such dispute shall be decided by the Board. The aggrieved party is given a remedy by an application to the Court under Section 84 (2) and an appeal to this Court under Section 84 (3), as amended in 1946. Subject to the result of such application or appeal, the decision of the Board is final. The ordinary original jurisdiction of civil Courts to try such disputes was held to be barred by implication in Iswarananda Bharathi's case, 54 Mad. 928 : A.I.R. 1931 Mad. 574 and is now expressly barred by Section 84 (1) as amended in 1946. As I have already pointed out, a dispute of the kind mentioned in Section 84 (1) might arise in the course of very many proceedings contemplated and authorised by the Act and whatever be the nature or stage of the proceedings in which the dispute arises, the Board is empowered, and indeed required, to decide the dispute. The only preliminary fact or condition that must exist in order to attract the Board's jurisdiction is the existence of a dispute as to whether an institution is a 'temple' as defined in the Act. The enquiry by the Board must extend to, and indeed begin with, a consideration of the question whether the institution with reference to which the dispute has arisen is a temple or not. The decision of the Board as a result of the enquiry might be that there is a temple as defined in the Act or there is not. In either case, its order, right or wrong, will be within its jurisdiction and not outside it.

44. The view of Satyanarayana Eao J. is that no temple was in existence in 1938 when the Board passed the order Ex. R-1 and as the existence of a temple, in the usual and accepted sense of that term, was an essential prerequisite to give jurisdiction to the Board under Section 84 of the Act, its order, EX. r-1, was one passed without jurisdiction. It would be a strained construction of Section 84 to say that it merely empowered the Board to declare that a temple was a temple or that a temple admitted to be such, was a temple as defined in the Act. When the Board decided in Ex. R-1 that there was 'a temple' as defined in the Act, it decided that the institution was a temple. If the matter were res integra, I would hold with Satyanarayana Eao J. that in spite of the several features adverted to by the Board, there was. here no temple according to ordinarily accepted notions. But this question had to be and was decided, though erroneously, by a tribunal competent and empowered by the Legislature to decide it, and the decision of that tribunal has been allowed to become final by the inaction of the trustees. Its correctness is, therefore, no longer open to question.

45. It is common knowledge that there are in this Presidency many institutions of a mixed character, whose exact place among religious and charitable foundations is likely to be a matter of doubt or dispute. There are some samadhis or tombs and sepulchres of holy men, where an image of Siva is usually installed and worship, regular or occasional, is offered. Some of them have come to be considered as public temples by reason of the sanctity of the persons interred. There are private mausoleums where idols are installed and pooja offered, but which are not temples or temples as defined in the Act, because the public either do not care or are not allowed to worship at such places; Draiviasundaram v. Subramania, I.L.R. (1945) Mad. 854: A.i.r. 1946 Mad. 217, Velusami Goundan v. Dandapani : AIR1946Mad485 . There having been cases where memorials erected originally in honour of heroes or martyrs have developed into places of public worship and have been declared to be public temples ; Board of Commissioners for H. R. E. Madras v. Narasimham, (1989) 1 M. L. J, 134 : A.I.R. 1939 Mad. 134. There are institutions like Bhajana matams where pictures or idols of God of the Hindu pantheon are kept, the public congregate daily or on stated occasions, sing the praise of God and receive prasadams. There are institutions loosely called mutts which, however, are private buildings in which house holders, belonging to particular sects or following particular tenets, live with their families. A so-called mutt may merely be the residence of a sanyasi or paradesi. There are also endowed mutts which are public institutions established for propagating particular systems of religious philosophy, presided over by an ascetic head. There are obaultries resorted to by the public, where images of Gods are installed and daily worship offered. There are also endowments of immovable property and cash for institutions of the foregoing types. There are foundations, of which it is difficult to say whether they are temples or mutts at all and whether they are temples or mutts as defined in the Act. If with reference to institutions of this kind, a dispute arises as to whether they are temples or mutts as defined in the Act, the Board is empowered, and indeed the duty is cast on the Board by Section 84 to enquire into and decide this dispute. If on enquiry the Board decides that the institution in question is not a temple or a mutt, its decision will be final, subject to the result of an application and an appeal under Section 84 (2) and (3) of the Act. Its decision cannot be considered to be one rendered by a Tribunal without jurisdiction merely because it turned out as a result of the enquiry that there was no mutt or temple. The same result would follow a decision of the Board that there was an institution answering the description of a temple or mutt as defined in the Act. Though the Act applies only to temples and mutts which are public institutions and though the jurisdiction of the Board does not extend to private temples or mutts which are not of the type defined in Section 9, Clauses (7) and (12) of the Act, still, the Board is, in my opinion, empowered by Section 84 to decide on the true character of these institutions as a preliminary to its exercising the other powers conferred by the Act in respect of 'temples' and 'mutts.' In my opinion, the whole scheme of the Act and the language of Section 84 (1) bring this case within the category of cases referred to by Lord Esher M.R. in Reg. v. Income-tax Commissioner s,(1888) 21 Q.B.D. 313: 57 L.J.Q.B. 513 and in this case, the Legislature has entrusted the tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it doesexist, to proceed further or do something more. It is an erroneous application of the formulato say that in such a case the tribunal cannot give itself jurisdiction by wrongly deciding certain facts to exist because the Legislature gave it jurisdiction to determine all the facts including existence o the preliminary facts on which the further exercise of its jurisdiction depends. If this reasoning is correct, it cannot be said that EX. r-1 was an order passed without jurisdiction. The appellants, however, have relied strongly upon a decision of this Court in Board of Commissioners for H. R. E., Madras v. Rugmini, 55 Mad. 636 : A.I.R.1932 Mad. 470 in support of their contention and my learned brother Satyanarayana Rao J. has also placedconsiderable reliance on this decision to supporthis conclusion. In that case, KumaraswamiSastri J. sitting on the original side of this Court, passed a decree declaring that the Actdid not apply to the properties endowed for atemple which had disappeared long before the Act came into force and granting an injunctionrestraining the Board from exercising any ofthe powers conferred by the Act in respect of that endowment; Vythilinga Pandaru Sannadhi v. Sadasiva Aiyar, 55 M.L.J. 605: A.i.r. 1928 Mad. 1272. This decree was affirmed by Beasley C. J. and Cornish J. in Board of Commissioners for H.R.E., Madras v. Rugmini, 55 Mad. 636: A. I. R. 1932 Mad. 470. The learned Chief Justice referred to the factthat the temple in question had been in ruins for many years, that there was no prospect of its reappearance and that it was not used and could not be used as a place of public worship as contemplated by Section 9(12) of the Act. He alsoheld that the Board had no jurisdiction over the endowments of a temple where the temple itself was clearly not in existence, not temporarily but permanently and there was no apparent intention of bringing it into existence. He added, however, a qualification of this proposition in these terms :

'The difficulty, however, is in laying down that the building of the temple must actually exist in order togive the Board jurisdiction as cases can be imagined where clearly the Board should and must be intendedby the Legislature to exercise its control.'

46. By way of illustration, the case of atemple temporarily submerged by a flood was mentioned. There might be other cases as well. There have been cases where the image of the deity is periodically set up and destroyed. Section 9 (11) of the Act has been amended in 1946 so as to nullify the effect of the decision in Board of Commissioners for H.R.E., Madras. v. Rugmini, 55 Mad. 636: A.i.r. 1932 Mad.470. The passage from the judgment quoted above does not suggest that in the view of theirLordships who decided that case, Section 84 of the Act was confined in its application to institutions admitted or conceded to be temples. The Hindu law recognises the validity of dedications for the establishment of a deity and the maintenance of its worship. It is immaterial that the image of the deity has not been established before a gift or bequest is made for it. The decision in Thiruvengadam v. H. R. E. Board, Madras, I.l.r. (1946) Mad. 268 ; A.i.r. 1945 Mad. 273, relied upon by the appellants has no bearing on the question now under consideration. Section 84 of the Act, as it stood before its amendment in 1946, did not empower the Board to decide a dispute as to whether any property endowed was a specific endowment as defined in the Act or a mere private charity and its decision on this question was held to be one given without jurisdiction. Section 84 has since been amended in 1946 by the insertion of Clause (c) in Sub-section (1) so as to give the Board jurisdiction to decide such disputes as well.

47. It is next contended by Mr. Muthiah Mudaliar that there is no 'institution' in this case so as to attract the operation of Section 84 (1), the institution, according to him, coming into existence only if and when the building is completed and the idol installed and consecrated in the manner prescribed by the Agama Sastras, and described by Satyanarayana Rao J. in his judgment. Consecration, according to the ceremonial rites prescribed by the Agama Sastras, is not a legal requisite, though it is a sacredotal necessity according to the views of the orthodox. The test is not whether the installation of an idol and the mode of its worship conform to any particular school of Agama Sastras. If the public or that section of the public who go for worship consider that there is a divine presence in a particular place and by offering worship at that place, they are likely to be the recipients of the bounty or blessings of God, then, you have got the essential features of a temple as defined in Section 9, Clause (12) of the Act. The presence of an idol, though an invariable feature of Hindu temples, is not a legal requisite under the definition of a temple in Section 9, Clause (12) of the Act. The word 'institution' which is used in Section 84 (1) of the Act is a term of very wide import, capable of different meanings according to the context in which it is used. It means, among other things, a foundation, a system, a constitution, an establishment, or organisation, a place designed for the promotion of some. religious, charitable or other object of public utility and so on. In this case, the place for the construction of the temple had been fixed, the building had been substantially erected thoughnot completed, the idol was ready to be installed, properties had been endowed and trustees appointed for the conduct of the worship and the management of the properties. The Board had jurisdiction to decide the preliminary fact, whether there was an institution within the meaning of Section 84 (1) and whether it was a temple asdefined in the Act. It decided in the affirmative an its order Ex. R-1, dated 27-9-1938. Its decision has not been sot aside in the only manner permitted by law and has now become final and binding on the trustees. Merely because I would have come to a different conclusion from the Board, I cannot treat the order of the Board as null and void.

48. The learned advocate for the appellants boldly suggested that the Act would be ultra vires if such a wide interpretation were to be put on Section 84(1), but he did not support his contention by any reasons, evidently because he had no faith in it. It was next urged that it could hardly have been the intention of the Legislature to invest the Board with such wideand sweeping powers as are claimed by it. In theory, it may be objectionable to make a body invested with limited jurisdiction a judge of the question as to whether the subject of enquiry is within its jurisdiction or not. In spite of forensic protests, the legislative practice of substituting for the jurisdiction of the Court that of a specially constituted tribunal has become increasingly frequent both here and in England and, in such cases, the Court is concerned only with the question whether the Tribunal has acted within its jurisdiction. It must, however, be pointed out that Sections 84 (2) and 84 (3) of the Act provide ample and adequate remedies by way of an application to the District Court and an appeal to this Court for the correction of an erroneous decision of the Board.

49. Though I have reached the same conclusion as my learned brother Govinda Menon J. I have travelled by a different route. I have alsodiffered from the conclusion of Satyanarayana Rao J. for whose opinion I have unfeignedrespect. The case is also one of some difficulty and importance. For these reasons I have stated at length the considerations which have compelled me to the conclusion that I have formed.

50. following the precedent in Dasureddi v. Venkcttasubbammal : AIR1934Mad436 , the appeal will be posted before the Bench for orders passed in accordance with the opinion of the majority of the Judges who have heard the appeal.

[The appeal on coming for final hearing before the Court, Satyanarayana Rao andGovinda Menon JJ. after expression of opinionby Viswanatha Sastri J. the judgment of the Court was delivered by :]

Satyanarayana Rao, J.

51. Following the opinion of the third Judge, the appeal has now to be dismissed with coats. The learned advocate for the appellants now states that he mentioned some other points when the appeal was argued in the first dnstance before us and that he should have an opportunity now to argue and develop those points. We have dealt in our judgments with the points that were urged before us and argued at length. Even at the time when our judgments were delivered on 18-2-1949, the learned advocate for the appellants did not draw our attention to the fact that there were other points, which he mentioned at the time of the arguments and which we omitted to consider in our judgments and that, at any rate, he should have a further ppportunity to argue those points. In those circumstances, we think we are not justified in re-opening the hearing of this appeal at this distance of time and giving a further opportunity to the appellants' learned advocate to further argue the appeal.


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