(1) Petition by one D. Balasubramania Mudaliar to revise the order of the District Magistrate of Chingleput, dismissing his petition under S.101 of the Madras Hindu Religious and Charitable Endowments Act of 1959, for delivery of possession of Sri Kailasanathar temple, Big Natham, Chigleput. The petitioner has been appointed as a trustee of Sri Kailasanathar temple for a period of five years from 21-9-1960. He filed a petition under S. 101 of the Hindu Religious and Charitable Endowments Act, 1959, for delivery of possession of the said temple. The first respondent is the sister and the second respondent is the husband of the third respondent who claimed to be the hereditary trustees of the temple. Respondents 1 and 2 claimed possession only on behalf of the third respondent. But the claim of the third respondent as hereditary trustee was negatived by the Deputy Commissioner of the Hindu Religious and Charitable Endowments Board in O.A. 120 of 1960 on its file as evidenced by Ex. P. 2. It is stated by the learned advocate for the respondent that the third respondent has preferred an appeal to the Endowments Board and that the appeal (63 of 1961) is pending. But till the third respondent succeeds in the appeal she cannot resist the claim of the petitioner to be put in possession of the temple.
(2) The learned District Magistrate relied on the decision in Subbu Chetti v. Munusami Chetti, : (1957)2MLJ161 , cited by the learned advocate for the third respondent in support of his order. It was held in that decision that in cases where a person in possession of the property claimed title in his own right, in the absence of any evidence and finding that he was an ex-trustee and in that capacity continued in possession, he could not be ousted by a summary order under S. 87 of the Hindu Religious and Charitable Endowments Act of 1951. In Somasundaram Pillai v. Muthirulappa Pillai, Cri R.C. 686 of 1961 (Mad), I have pointed out that the said decision could hardly be invoked in a case like the present one. It is clear from the facts of the case in : (1957)2MLJ161 that the petitioner therein not only claimed title in his own right but also contended that he was not an ex-trustee or ex-officer of the temple. The third respondent herein claimed only as a hereditary trustee. But, as already pointed out, her claim was negatived by the Deputy Commissioner and her appeal is pending. In the unreported decisions in Srinivasa Narasimachariar v. Ethiraja Pillai, Cri. R.C. 282 of 1961 (Mad), and Poongavana Gounder v. Rangaswami Udayar, Cri R.C. 394 of 1961 (Mad) this Court has held that the person who claims rights as hereditary trustee and questions the jurisdiction of the area Committee of the Deputy Commissioner to appoint a trustee under the Act may have other remedies open to him, but he is not entitled to resist an application by the lawfully appointed trustee to recover possession of the temple or its properties. In Subbaraya Mudaliar v. Nachimuthu Mudali 1965 1 MLJ 359, Kailasam J. has taken the same view. He has held in that decision that, when persons are appointed trustees to non-hereditary temples, by virtue of their appointment they are entitled to possession of the temple, a person who is already in possession of the temple as a trustee is no more entitled to be in possession and that he will be a trustee 'otherwise not entitled to be in possession' under S. 101 of the Act. He has also pointed out that S. 101 of the Act exempts only person claiming in good faith to be in possession on his own account.
(3) During the hearing of the arguments on the petition, it was brought to my notice by the advocate for the respondent that the third respondent is dead and that he is taking steps to add the legal representatives in the appeal before the Commissioner of the Hindu Religious and Charitable Endowments Board. The learned advocate for the petitioner wanted to implead the legal representatives of the third respondent in the present petition, but there is no provision in the Code of Criminal Procedure to implead the legal representatives of a party in a criminal revision case. In fact, in the absence of any specific provision in the Code of Criminal Procedure, the proceedings cannot be continued against the legal representatives. There is one provision under S. 145(7) Cri. P.C., under which when any party to any such proceeding dies, the Magistrate may cause the legal representatives of the deceased party to be made a party to the proceeding and continue the enquiry. The only other provision, so far as I am aware of, is S. 431 Cri. P.C., which provides that every appeal under S. 411-A, sub-section (2) or S. 417 shall finally abate on the death of the accused, and every other appeal under that Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. Thus in the case of the death of an appellant, the appeal could be prosecuted by a legal representative only in so far as it affects the estate of the deceased by reason of the fine imposed in that case.
(4) Having regard to the above facts and circumstances, it is sufficient to set aside the wrong order of the District Magistrate of Chingleput, so that the petitioner may, if so advised, take steps to file a fresh application, under S. 101 of the Hindu Religious and Charitable Endowments Act of 1959 or initiate other proceedings against the persons now in possession of the temple and its properties.
(5) Revision allowed.