Govinda Menon, J.
1. The learned District Judge is in error in thinking that Section 78, Hindu Religious Endowments Act is not applicable to the present case. The respondents, who claim to be in possession of the disputed properties either under Ex. A. 3 dated 4-5-1940 or under Ex. A. 4 dated 17-1-1944, contend that they are lawfully in possession and cannot be dispossessed by an application under Section 78. The learned Judge says that on the documents produced before him it is not easy to find that the lessor under Ex. A. 3 had not acquired any rights to the properties or that the respondents are estopped from urging occupancy rights therein.
2. NOW, the petitioners both before the lower Court and here are the three trustees appointed by the Hindu Religious Endowments Board for the purpose of managing the endowment connected with the Sri Markendeswara Swami Vari temple at Markandapadu. Any application by such trustees for recovery of possession of the trust property, the temple or the endowments against ex-trustees or other persons who are not lawfully in possession can be decided under Section 78 of the Act. There is an explanation to Section 78 which is to the effect that a person claiming under an alienation contrary to the provisions of Section 76 shall not be regarded as a person claiming in good faith within the meaning of the section. This contemplates that if a trustee or ex-trustee; alienates property that is mortgages without the sanction of the Board or leases it for a period of more than five years without the sanction of the Board,such transactions are invalid and even the trustee who has alienated or a succeeding trustee can file an application under Section 78 for recovery of possession of the invalidly alienated property.
3. It is the case of at least Some of the respondents here that one Chamarthi Veera Raghavayya, respondent 1's father, was the lessee under Sri Rajah Vijaya Apparao under Ex. A. 4 and they are only sub-lessees under this Veera Raghavayya. Mr. Ramachandra Rao contends that the section cannot be invoked as against those sub-leases. I do not agree. If the lease in favour of Chamarthi Veera Raghavayya is hit by the operation of Section 76, then even if the sub-lessee under Veera Raghavayya is a bona fide lessee still he cannot say that he is a person claiming bona fide within the meaning of the section. These are matters to be gone into in the application. The learned District Judge seems to have summarily dismissed the appln. holding that the section would not apply. In doing so, he has failed to exercise a jurisdiction vested in him by law. Mr. Ramachandra Rao also further urges that with regard to the production of certificate from the Endowments Board, he is entitled to contend that the petitioners have not satisfied the requirements of the Section. These are all matters which can be gone into at the fresh hearing of the petn. The respondents are entitled to take any objection or any defence that they can legitimately take before the lower Court at the fresh hearing of the petition. It is essential for a proper adjudication of the dispute that Chamarthi Veera Raghavayya should be added as a party to the application. The petitioners-trustees would take steps to add him as a party in the lower Court.
4. The order of the learned District Judge is set aside and O. P. No. 34 of 1947 is remanded to the District Court of Eluru for disposing of on the merits.
5. Costs of this revision will abide and follow the result of the fresh disposal.