Alfred Henry Lionel Leach, C.J.
1. This reference arises out of a suit filed by the appellant in the Court of the Subordinate Judge of Sivaganga to establish the title claimed by him to the office of Pandarasannadhi, or mahant, of the Tiruvannamalai math in the Ramnad District. In his plaint the appellant asked the Court to pass a decree in his favour for inter alia the following reliefs:
(a) Declaring that the first defendant is not entitled to be the Pandarasannadhi of the Thiruvannamalai Athinam and (by way of consequential relief) ejecting him from the office of Pandarasannadhi of the Athinam and restoring its possession to the plaintiff as the only Thambiran of the Athinam qualified and entitled to its headship or at least to be in charge of the math and its properties till a new Pandarasannadhi comes.'
'(b) Restraining the first defendant by a perpetual injunction from in any way interfering with the spiritual or secular affairs of the Athinam.
2. The respondent was the first defendant, who claims to be the lawful holder of the office. It is admitted that he is in possession of the properties, but notwithstanding the terms of paragraph (a) of the prayer the appellant said that he was not asking for an order for possession because 'the servants and tenants' on the lands were prepared to hand over possession and pay rent to the holder of the office. In addition to denying the right claimed by the appellant, the respondent, relying on the provisions of Section 42 of the Specific Relief Act, averred that the suit was not maintainable because the appellant had failed to ask for a decree directing that possession of the math properties be given to him. The Subordinate Judge held that this plea was well founded and dismissed the suit. The appellant appealed to this Court and in due course the case came on for hearing before a Division Bench consisting of King and Patanjali Sastri, JJ. In consequence of the conflict between the decisions of this Court in Rathnasabapathi Pillay v. Ramaswami Aiyar : (1910)20MLJ301 and Swaniinatha Aiyar v. Ramier : AIR1925Mad421 , the learned Judges have referred to a Full Bench the issue whether the suit is barred by-reason of the provisions of Section 42 of the Specific Relief Act.
3. When the case was before King and Patanjali Sastri, JJ., the learned advocate for the appellant applied for and obtained an order permitting the amendment of the plaint by the omission of the words, 'or at least to be in charge of the mutt and its properties till a new Pandarasannadhi comes' from the prayer for a declaration. The prayer for a perpetual injunction stands, but Mr. Sampath Aiyangar has stated that he is willing to waive this relief also should it be deemed to be in the way of his client's success in the appeal. In these circumstances the Court will treat the appellant's claims to be for (1) a declaration of his title to the office and (2) possession of the office but not of the properties attaching to it.
4. In Rathnasabapathy Pillai v. Ramaswami Aiyar : (1910)20MLJ301 , a trustee of a temple who had been ousted by his co-trustees sued for a declaration that his dismissal from the trusteeship was invalid, and for an injunction restraining his co-trustees and the temple committee from interfering with the exercise of his rights as a trustee. There was no prayer for consequential relief in the nature of an order for possession against the co-trustees. In these circumstances the Court (Sankaran Nair and Krishnaswami Aiyar, JJ.,) held that the suit was not maintainable. In that case the plea was raised that the lands of the temple were in the physical possession of the tenants and the plaintiff could not get such possession himself : but it was held that the fact that the lands were in the physical possession of the tenants did not excuse the plaintiff from suing for possession.
5. Swaminatha Aiyar v. Ramier : AIR1925Mad421 , was decided by Spencer, J., who was then officiating as Chief Justice and Srinivasa Aiyangar, J. That was a suit for a declaration that the plaintiffs were the lawful trustees of a Hindu temple and its endowments, for a direction that the defendants who claimed to be trustees should be made to restore the office to them and for an injunction restraining the defendants from interfering with the exercise by the plaintiffs of the duties of the office. Relying on the decision of the Bombay High Court in Kunj Bihari v. Keshavlal Hiralal I.L.R.(1904) 28 Bom. 567 (which Sankaran Nair and Krishnaswami Aiyar, JJ., had refused to follow) Spencer and Srinivasa Aiyangar, JJ., held that it was not necessary for the plaintiffs to sue for the consequential relief and therefore Section 42 of the Specific Relief Act was no bar to the suit. The learned Judges appear to have separated the office from the properties forming the endowments of the trust.
6. In Kunj Bihari v. Keshavlal Hiralal I.L.R.(1904) 28 Bom. 567 the facts were these. The plaintiff brought a suit alleging that he had been installed on the gadi of the God Swaminarayan. He claimed that he was the gadipathi and that nobody else had a right to be installed on the gadi. He complained that the defendants were wrongly attempting to place some other person on the gadi. The reliefs asked for were : (1) A declaration that a will set up by the defendants was a fraudulent document but, if established it was not binding; (2) a declaration that the right to become the acharya was in the plaintiff and that he was the owner of the gadi; (3) a perpetual injunction restraining the defendants from offering any obstruction to his occupying the gadi and (4) a perpetual injunction restraining the defendants from placing anybody else on the gadi. The Court (Jenkins, C.J., and Batty, J.,) accepted the plaintiff's contention that the suit was not for possession of the trust properties but one to determine who was to occupy the gadi and considered that in these circumstances the plaintiff was entitled to ask for an injunction without any further relief. Jenkins, C.J., in delivering the judgment said:
We do not say that the plaintiff might not in terms have asked for possession of the office he says is his ; we will assume he could, but how would practical effect be given to an award of possession of an office otherwise than by preventing interference with the rights of which it is made up
The defendants were in possession of the trust properties and therefore it was not open to the Court to grant the plaintiff an injunction when he was not asking for possession against those actually in possession. This was pointed out by Sankaran Nair and Krishnaswami Aiyar, JJ., in their judgment in Rathnasabapathi Pillai v. Ramaswami Aiyar : (1910)20MLJ301 . We cannot regard Kunj Bihari v. Keshavlal Hiralal I.L.R.(1904) 28 Bom. 567 as being correctly decided.
7. The judgment in Rathnasabapathi Pillai v. Ramaswami Aiyar : (1910)20MLJ301 , receives support from the decisions of this Court in Ramanuja v. Devanayaka I.L.R.(1885) Mad. 361 Sonachala v. Manika I.L.R.(1885) Mad. 516 Kombi v. Aundi I.L.R.(1889) Mad 75 Abdulkadar v. Mahomed I.L.R.(1891) Mad. 15 Srinivasa Aiyangar v. Srinivasa Swami (1892) 2 M.L.J. 139 : I.L.R. Mad. 31 Srinivasa Swami v. Ramanujachariar : (1898)8MLJ190 , Ramaswami Aiyar v. Annasami Aiyar : (1898)8MLJ124 and Appu Pillay v. Perumal Pillay : (1912)23MLJ118 .
8. In Ramanuja v. Devanayaka I.L.R.(1885) Mad. 361, which was a suit by six plaintiffs for a declaration that certain proceedings of a District Temple Committee removing them from office as trustees of a temple were illegal, Turner, C. J., and Muttuswami Aiyar, J., observed:
Possession, whether it is of property or of an office may be regarded either as a physical fact, or in contemplation of the legal right to it, and it is in the former sense it should be understood in coming to a finding under Section 42 as to whether the plaintiff is, or is not, able to seek further relief.
9. In Abdulkadar v. Mahomed I.L.R.(1891) Mad. 15 Muttuswami Aiyar, J., sitting with Parker, J., held that a suit was not maintainable by reason of Section 42 of the Specific Relief Act in these circumstances. The plaintiff claimed that he was entitled to the office of Sheik of Kallai and to the properties forming the endowments of the office. He did not sue for possession of the properties which were in the possession of the defendant. He merely claimed a declaration that the defendant had no right either to the office of Sheik of Kallai or to the properties and prayed for an injunction restraining the defendant from interfering with the properties or doing anything in any way inconsistent with the plaintiff's right to the office.
10. The cases of Srinivasa Aiyangar v. Srinivasa Swami (1892) 2 M.L.J. 139 : I.L.R. Mad. 31 and Srinivasa Szvanii v. Ramanujachariar : (1898)8MLJ190 , concerned maths. In Srinivasa Aiyangar v. Srinivasa Swami (1892) 2 M.L.J. 139 : I.L.R. Mad. 31 the plaintiffs were three disciples of a math. They sued under Section 539 of the Code of Civil Procedure of 1882, alleging that the defendant was in possession under a false claim of title as the successor to the last Jeer and praying that it be declared that he was not the duly appointed successor to the office and that an appointment to the vacant office be made by the Court. As no consequential relief was asked for it was held that the suit was not maintainable. Srinivasa Swami v. Ramanujachariar : (1898)8MLJ190 , was a case of a similar nature.
11. The same principle was applied in Sonachala v. Manika I.L.R.(1885) Mad. 516 which referred to a choultry and in Kombi v. Aundi (1889) 13 I.L.R. 75 in which the plaintiff claimed a declaration of his title to the stanom of the fifth Raja of Palghat. Ramaswami Aiyar v. Annasami Aiyar : (1898)8MLJ124 , had reference to temple properties. It was there held that a person who was in joint possession of the temple properties with others who claimed to be joint trustees with him could not sue to exclude the other persons from management without suing for sole possession of the properties. A mere declaration that he was the proper trustee and the others were not was not sufficient in the circumstances. In Appu Pillay v. Perumal Pillay : (1912)23MLJ118 , Abdur Rahim and Sadasiva Aiyar, JJ., followed Rathnasabapathi Pillai v. Ramaswami Aiyar : (1910)20MLJ301 .
12. In the face of these decisions it is not feasible to accept the judgment in Swaminatha Aiyar v. Ramier : AIR1925Mad421 , in preference to that in Rathnasabapathi Pillai v. Ramaswami Aiyar : (1910)20MLJ301 . Moreover, it has to be borne in mind that it is not possible to separate the office from the properties which form the endowments of the office. This has been very clearly laid down by the Privy Council. In Gnanasambanda Pandarasannadhi v. Velu Pandarani which concerned the right to the office of trustee of a certain temple, Sir Richard Couch in delivering the judgment of the Board said:
Their Lordships are of opinion that there is no distinction between the office and the property of the endowment.
13. This was emphasised by Lord Shaw in delivering the judgment of the Board in Ram Parkash Das v. Anand Das . When referring to the position of a mahant Lord Shaw said:
He sits upon the gaddi; he initiates candidates into the mysteries of the cult; he superintends the worship of the idol and the accustomed spiritual rites; he manages the property of the institution; he administers its affairs; and the whole assets are vested in him as the owner thereof in trust for the institution itself.
14. In delivering the judgment of the Privy Council in Satish Chandra Gin v. Dharani Dhar Singha Roy (1940) 1 M.L.J. 371 : L.R. 67 IndAp 32 : I.L.R. (1940) Cal. 266 Mr. Jayakar quoted this passage from the judgment of Lord Shaw and went on to say:
The two capacities are thus closely intermingled and a proper and efficient discharge of the one depends on the control of the other. The mahant must have authority over the funds and income of the institution to be able to discharge his religious duties efficiently, in conformity with the customary and traditional obligations of the office and to the satisfaction of those who claim the benefit of the worship. He necessarily enjoys large patronage in the discharge of his religious functions. He cannot, in consequence, depend, for the due performance of such duties, on the mercy or caprice of another functionary, with separate or co-ordinate authority over the funds of the institution. Any division of the two capacities would lower his prestige, as also impair the efficiency of his religious functions.
15. Here the appellant is endeavouring to separate the office from its endowments. This he clearly cannot do and as he is asking for a declaration of his title to the office and is not in possession of its properties he must by reason of Section 42 of the Specific Relief Act ask for possession. His failure to do so vitiates his suit. It may be regrettable that a person who has been ousted wrongly from an office and the control of the properties attached to it should be required to pay a court-fee based on the value of the properties before he can file a suit to remedy the wrong, but the Court cannot take such hardship into consideration when deciding the effect of Section 42 of the Specific Relief Act. When a court-fee fixed by the Court Fees Act is unfair, it is for the Legislature to interfere. The Court cannot do so.
16. We consider that Rathnasabapathi Pillai v. Ramaswami Aiyar : (1910)20MLJ301 , was rightly decided and that Swaminatha Aiyar v. Ramier : AIR1925Mad421 , was not. Consequently the answer which we give to the reference is that the present suit cannot be maintained by reason of the fact that the plaintiff has failed to ask for possession of the math properties.