1. Two trustees of a certain charitable and religious trust sued their co-trustee for removal and for accounts in the District Court of Madura, The learned District Judge framed two preliminary issues with the first of which only we are here concerned. It runs thus: 'Whether the suit is maintainable under Section 92, C.P. Code or under Section 73 of Madras Act II of 1927.' This Civil Revision Petition has been preferred by the defendant against an affirmative finding upon this issue.
2. It is objected that a decision upon a preliminary issue relating to jurisdiction is not open to revision under Section 115 of the Code of Civil Procedure. The familiar argument in favour of revision is that if the petitioner is successful the trial of the rest of the suit would be saved, and the special objection to it is that, if the petitioner waits until the suit has been disposed of, he will have a right of appeal. The subject has come up most frequently in connection with court-fees and a question of this kind was dealt with by a Bench of this Court in Kulandaivelu Naichair v. Ramaswami Pandia Thalavan I.L.R.(1927) M. 664 : 55 M.L.J. 345. The argument based on the eventual alternative of an appeal was considered but was not deemed of sufficient weight to preclude revision. Two other reported cases relate to a preliminary issue of jurisdiction, one decided by Krishnan J., in Janardhanan v. Vergheese (1924) 48 M.L.J. 451 and the other the Full Bench case in Atchayya v. Sri Seetharamachandra Rao I.L.R.(1912) M. 195 : 24 M.L.J. 112 (F.B.) where an appellate judgment which decided such an issue came up for revision. I think it must be said that there is now a course of decisions in favour of interference sufficiently marked to render it undesirable that a single Judge should take the opposite view.
3. Turning to the merits, the trust 'was created for a number of specified purposes, some secular and some religious, and the question which first arises is whether Sub-section (2) of Section 73 of the Madras Hindu Religious Endowments Act takes the suit out of the scope of Section 92 of the Code of Civil Procedure and, if so, whether power to institute such a suit is derivable from Sub-section (1) of the same section. The learned District Judge holds that Section 73 (2) is a bar to the application of Section 92, but he finds himself able to bring the suit within the scope of Section 73 (1).
4. Assuming the trust to be a 'religious endowment' as defined in the Act this view of the effect of Section 73 (2) is clearly right and accordingly, in the words of the sub-section, 'no suit in respect of such administration or management shall be instituted except as provided by this Act.' Admittedly Section 73 (1) is the only provision of the Act which can authorise such a suit. Under it 'The Board or Committee having jurisdiction over any math or temple or any person having interest and having obtained the consent of the Board may institute a suit ...', and the first question is whether the plaintiffs in the present suit satisfy this description. To satisfy it, it must be held that they are 'persons having interest'. This phrase is defined in clause 9 of Section 9 as follows:
(a) in the case of a math, a disciple of the math or a person of the religious persuasion to which the math belongs, and
(b) in the case of a temple, a person who is entitled to attend at the performance of worship or service in the temple or who is in the habit of attending such performance or of partaking-in the benefit of the distribution of gifts thereat.
5. Accordingly the subject-matter of the interest is confined to a math or a temple. The trust we have to deal with is certainly neither of these things, though it may be a religious endowment as defined in clause 11 of Section 9. Only by extending the meaning of Section 75, therefore, and concluding that where it speaks of a math or a temple it may be taken also to mean a religious endowment can this obstacle be got over. Nor does difficulty arise only from the statutory definition of 'person having interest'. From the provision that a suit may be brought by the committee having jurisdiction over any math or temple the section would seem to contemplate only suits relating to such foundations. 1 cannot avoid drawing the same inference from the manner in which the reliefs are set forth. The first relief is 'appointing or removing the trustee of a math or excepted temple.' There is no provision for appointing or removing the trustee of a religious endowment such as the present, nor do I find that the Act makes such a provision elsewhere. Reliefs (b), (c) and (d) do not, it is true, expressly confine themselves to maths or temples but it is difficult to avoid the conclusion that by implication they do so. The learned District judge has found himself able to bring the suit within the section by force of relief (d), 'granting such further or other relief as the nature of the case may require.' A comparison of this section with Section 92, C. P. Code, will show that the portion of it which sets out the classes of reliefs admissible has been closely moulded on that other section. I am unable to hold that Clause (d) of Section 73 enables the institution of any suit of a class unprovided for by the rest of the section. Fully therefore as I agree with the learned District Judge as to the canons of construction to be adopted in a case like this, I must hold that Section 73(1) cannot be so construed as to comprise suits of this class. Endowments such as the present are dealt with to some extent by the Act, as by Sections 41 to 44, but provision for suits such as the present appears to have been omitted by oversight, unless indeed it was not intended that such foundations should fall within the definition of religious endowment.
6. That a trust which has for its object the performance of subordinate services in a number of temples does in general satisfy the definition of religious endowment has not been disputed on either side. For the respondents, however, the point is raised that this endowment is not technically a religious endowment by virtue of the provisions of Section 77 of the Act. Besides a number of religious services the trust comprises such objects as supplying rice to travellers, feeding Brahmins and maintaining a water pandal. In other words, its objects while mainly religious are also partly secular. Section 77 provides that where an endowment is of this character the Board may determine what portion of such endowment shall be allocated to religious uses and then occurs this sentence: 'Such portion shall thereafter be deemed to be a religious endowment and its administration shall be governed by the provisions of this Act.' It appears to me that the effect of this is to keep outside the operation of the Act any endowments part religious part secular in respect of which the Board has not made an allocation to religious uses. When that has been done the portion allocated becomes a religious endowment amenable to the provisions of the Act and until it is done therefore no portion is so amenable. If this be so, Section 73 (2) does not take the trust out of the operation of Section 92, C.P. Code. Accordingly while setting aside the Finding on the first issue remand the suit for re-trial upon I hat issue, the point for consideration being whether the endowment is or is not a 'religious endowment' by virtue of Section 77 of the Act, decision of which point will decide the question of jurisdiction. Costs to abide and follow the result.