Satyanarayana Rao, J.
1. These Civil Revision Petitions were preferred against the orders of the learned District Judge of Guntur (except C R.P. No. 1676 of 1947, in which the order was passed by the District Judge of Kistna) passed under Section 78 of the Madras Hindu Religious Endowments Act of 1926 (Act II of 1327) as amended by the Madras Hindu Religious Endowments (Amendment) Act of 1946 (Act X of 1946). As these revision petitions raised important questions of law regarding the interpretation of Section 78 of the Act as amended in 1946, my learned brother, Panchapagesa Sastri, J., referred them to a Bench, and they are now before us.
2. Nine applications were filed in the lower Court under Section 78 by the trustees appointed either by the Board or by the Assistant Commissioner having jurisdiction for delivery of possession of immoveable properties in the possession of the archakas who were the respondents in the petitions in the Court below and are the petitioners before us. The properties in question have been in continuous possession of the archakas for a considerably long period, and the claim by them was that the lands In dispute were granted to their predecessors in title burdened with service to the temples concerned while the trustees contended that they belonged to the temples. Besides this question of title to the property, there were other objections raised regarding maintainability of the petitions. The Court below overruled the contentions of the archakas and directed delivery of possession of the properties.
3. In these revision petitions we are not concerned with the merits of the claim put forward by the archakas but are mainly concerned with the objections regarding the maintainability of the petitions. The finding of the learned District Judge on the question of title was not canvassed before us, and therefore it is not necessary to deal with it. If the petitions are otherwise maintainable, the trustees would be entitled to recover possession of the property, as the finding of the learned District Judge on the question of title to the property stands unchallenged.
4. The amended Section 78 requires, in case where the application is for possession of property, a certificate by the Board in such manner as may be prescribed. By the time these applications were disposed of, the Provincial Government under their rule-making power conferred upon them under Section 71 did not prescribe the rules governing the issue of such certificates; nor did they prescribe the form of the certificate. The trustees therefore obtained a certificate from the Board stating that the property in question belonged to the temple. One of the questions raised in the Court below and repeated before us was that this certificate does not fulfil the requirement of Section 78 as amended and that therefore the order for delivery made by the learned District Judge was incompetent. On behalf of the archakas it was also contended that the claim put forward by the trustees regarding the title to the property could not be tried in a summary proceeding under Section 78 of the Act and that such a dispute was entirely outside the purview of the section, particularly in view of the alterations made in that section by the amending Act X of 1946. In C.R.P. No. 1341 of 1946, a further point was also raised by the trustee that the application in that case was filed in the lower Court on 6th February, 1946, before the amendment came into force on 2nd April, 1946. It was therefore urged on behalf of the trustees that so far as this petition was concerned it was still governed by the procedure laid down by the unamended section and was not governed by the new section introduced by Act X of 1946. This contention will be dealt with separately.
5. Before dealing with the arguments urged before us on the three questions stated above, in order to better appreciate the contentions, it is necessary to set out the history of Section 78. In the Act that was originally passed in 1926 (Act II of 1927) the section ran as follows:
Where a committee has appointed a person as non-hereditary trustee of a temple or where a Board or committee has appointed a person to discharge the functions of a hereditary trustee and such person is resisted in, or prevented from, obtaining possession of the math or temple or of the endowments connected therewith, the Court may, on application by the person so appointed and on production of the order of the Board or committee appointing him, order the delivery to any person the possession of such property as may be specified therein.
By the amending Act of 1930 (Madras Act IV of 1930) the first part of the section was amended so. as to confer the benefit of the provisions of the section also upon, non-hereditary trustees appointed by the Board by substituting the following.
Where a person has been appointed as trustee of a math or temple or a religious endowment connected therewith or has been appointed to discharge the functions of a trustee by the committee or the Board, in accordance with the provisions of this Act and such person is resisted in....
The rest of the section was not altered. This section, it may be seen, did not specify the persons against whom the application could be maintained except stating generally that it was available against persons resisting or preventing delivery of possession of the math, temple or religious endowment or the properties belonging to them, etc. The section also gave a discretion to the Court to direct or not direct delivery of possession. The applicant was required under this section to produce only the order of appointment.
6. The scope of the section was the subject-matter of conflicting decisions by single Judges of this Court on the question whether the Court had jurisdiction in an application under the section to enquire into and adjudicate upon the claims, of third persons. In Ramireddi v. Sreeramulu : AIR1933Mad120 . Pandalai, J., was of opinion that the Court possessed such jurisdiction. In that case an application under Section 78 was made by the non-hereditary trustees of the temple against certain lessees from the archakas of lands belonging to the temple. There was an arrangement between the archakas and the trustees regarding the remuneration for the service of the archakas, and the archakas under that arrangement which was reduced to writing. consented to the temple taking possession of the properties from the lessees. The lessees resisted the application on the ground that the Court had no jurisdiction to decide the question whether the property belonged to the temple or to the archakas. The District Judge while referring to the notes on the clauses of the Bill which ultimately became the Act thought that the intention of the Legislature in enacting the section was to direct delivery of possession only in cases where the property was admitted to be the property of the temple, and that the Court had no jurisdiction to adjudicate upon the claims of third parties holding adversely to the temple or the trust. This was pointed out by the learned Judge in revision as erroneous, as it was not permissible in interpreting the section to refer to the objects and reasons, and that the language of the section alone should be considered. As the section did not confine the application against ex-trustees, or temple servants or other refractory persons connected with the administration of the temple who resisted delivery of possession, the learned Judge was of opinion that there was no room to restrict its operation to any particular class of persons or claims. If the Legislature intended to so confine it, the learned Judge pointed out, that the words in the section should have been
from any person who is not holding the same under any title or claim adversely to the institution.
There was no such language, and as the Act did not limit its operation as did the English Charitable Trusts Act of 1853 by Section 41 there was no room to accept the contention that a dispute between a temple and a third party bona fide claiming to be in possession of the property was not within the purview of that section. He however dismissed the petition ultimately on the ground that as the learned District Judge refused to exercise the discretion vested in him even if he had power to go into the question of title, there was no ground for interfering with such an order of the learned District Judge under Section 115, Civil Procedure Code.
7. Shortly thereafter Ramesam, J., had to consider the same question in Subramaniam v. Subbayi (1933) M.W.N. 934. The learned Judge differed from the view of Pandalai, J., and according to him, Section 78 was intended to apply only to admitted endowments and it was intended by that section that the District Court should enquire into questions of title. He however did not rest his decision on this sole ground but also on, the ground that the Court was within its jurisdiction in refusing to go into the question of title in the exercise of its discretion and that therefore the order of the District Judge could not be interfered with in revision. Patanjali Sastri, J., followed the view of Ramesam, J., in C. R. P. No. 1004 of 1937 (52 L.W. 7, short notes). In Yedukondalu v. Suryanarayana Rao : AIR1943Mad583 . Horwill, J., preferred to follow the opinion-of Pandalai, J., as against the opinion of Ramesam and Patanjali Sastri, JJ., in the cases above referred to. According to the learned Judge, if a Court is empowered to hand over temple property to the trustees it must be deemed to have also the power to decide whether the property is temple property. His view therefore is, if once the jurisdiction to deliver was conferred upon the Court, as an incident to that jurisdiction and as ancillary to it, it should possess also the power to go into the question whether the property of which delivery was sought for was or was not the property of the temple. Happell, J., in Kinnayakka v. Naranappayya : AIR1947Mad33 stated as his opinion that an application for delivery under Section 78 was in the nature of an application for execution, and therefore it was not open to a person who was a party to it to question the order of appointment of the trustee who made the application. With respect to the learned Judge, it is difficult to see in what sense an application under Section 78 is in the nature of an application for execution. Which is the decree that is sought to be executed in such a proceeding If there was a prior order of the Board between the parties holding that the property belonged to the temple or the trust and that order was sought to be enforced under Section 78 it may with considerable force be contended that the application under Section 78 really purports to execute or enforce an order passed by the Board. See for example the decision in Baijnath Sahai v. Ramgut Singh where a certificate issued by the Collector specifying the sum of arrears of revenue due and the person from whom it was due was treated by reason of the language of Section 7 of the Bengal Act VII of 1880 (Public Demands Recovery Act) as having the effect of a decree and that proceedings in pursuance thereof were in the nature of execution proceedings.
8. In this state of the law the Legislature amended Section 78 in important respects. The application is now confined to relief against a trustee, office-holder, or a servant of a math, temple or specific endowment who has been dismissed or suspended or is otherwise not entitled to be in possession, meaning thereby disqualified to hold or continue to be in possession. Section 54 of the Act sets out the grounds of disqualification which disentitle a non-hereditary trustee to hold the office. Possession can also be claimed against persons claiming or deriving title from such a. trustee, office-holder or servant. This restriction, it may be noted, meets the argument of Pandalai, J., in Ramireddi v. Sreeramulu : AIR1933Mad120 and narrows down the scope of the section. The claim of a person in possession in good faith, on his own account or on account of a third person who was not such a trustee, officeholder, or servant is excluded from the ambit of the section. The claims therefore of third persons claiming bona fide to be in possession of the property claimed as belonging to the trust cannot be now enquired into in an application under Section 78. The discretion vested in the Court under the old section to make or not to make an order for delivery is taken away, and the Court is bound to make an order for delivery if the conditions of the section are satisfied. The word ' shall ' was substituted for ' may.' This is a very important change. In addition to the production of the order of appointment, the trustee if he claims possession of the property is also bound to produce a certificate by the Board in such manner as may be prescribed setting forth that the property in question belongs to the math, temple or specific endowment concerned and of which delivery is sought for in the application.
9. These important alterations lead to the inference that the intention of the Legislature in enacting the section is to confine it only to admitted trust properties as held by Ramesam, J., in the case referred to. The dismissed or suspended trustee or trustee disqualified under Section 54 would generally be the person who either prepared the register contemplated by Section 38 of the Act in which the property of the temple or math was specified or must at least be a person who was a party to the annual verification of the register under Section 39. The Board in issuing the certificate can only act on the information available with it, namely, the register maintained and brought up to date from time to time under Sections 38 and 39. Under the amended Section 57, the Board now is also given power to determine the properties of the temple in case where a scheme is framed. The rights of third parties are however saved under the proviso to Section 57, Clause 3(a). A similar provision was also enacted in the case of Maths in Section 63. A trustee or officer or servant obtains possession of the property when he assumes office from the previous trustee, and he would therefore be precluded from disputing the title of the trust to the property. There may be cases where though the trustees, etc., are not persons who entered into possession for the first time were at least persons who admitted or acquiesced in treating the property in their possession as property which they were holding on behalf of and for the benefit. of the trust. The requirement regarding the certificate of property is intended to furnish to the Court proof that such properties are admitted trust properties. From this the inference is irresistible that the section as amended is confined only to properties in respect of which there could possibly be no dispute regarding title and is intended to provide a summary procedure to recover back possession of the property from a person who obtained possession on behalf of the trust and was holding it as such and who was refractory enough in not delivering possession to the lawful trustee entitled to obtain and hold it. The claims of third persons are expressly excluded, which is also an indication in support of this conclusion. The section therefore is restricted both as regards the persons and as regards the properties. The fact that no appeal is provided for against orders under this section is also a further indication that disputed questions of title should not be tried in an application under the section.
10. The archakas in this case have been in possession of these properties for over a century, and they have always been contending that the property belonged to them and not to the deity, though they were bound to render certain services to the temple. The determination of this question mostly depends upon documentary evidence and the interpretation of grants or the imam proceedings relating to the property. The archakas cannot be said to be persons who either admitted the property to be trust property or at any rate admitted to be in possession of those properties holding on behalf of and for the benefit of the trust. For these reasons the claim put forward by the archakas, in our opinion, cannot be disposed of in these applications and the order of the learned District Judge in these petitions deciding that question is without jurisdiction and has to be set aside.
11. The applications under Section 78 also did not satisfy the requirement of that section regarding the production of the certificate by the Board in the manner as may be prescribed setting forth that the property in question belonged to the math or the temple as the case may be. The word ' prescribed ' is defined in Section 9(10) as meaning ' prescribed by the Provincial Government by rules made under this Act.' The rule-making power of the Provincial Government is contained in Section 71. By the date of the presentation of this application in the lower Court the Government did not frame rules and did not prescribe the form of the certificate to be issued by the Board. It was only on the 28th June, 1948, that they prescribed the form of the certificate under Section 78 by G. O. M. S. No. 393, Firka Development, 28th June, 1948, published in the Fort St. George Gazette, dated 13th July, 1948. On the dates therefore of filing the applications and of passing the orders for delivery the form of the certificate was not prescribed by the Provincial Government. The Board therefore issued a certificate in a form prescribed by themselves, and it was contended on behalf of the trustees that this was a sufficient compliance with the procedure laid down by the section. The Board has no power of issuing a certificate by itself either under this section or any other provision of the Act. The power is to issue a certificate in the manner as may be prescribed and not the power to issue a certificate, the form of which may or may not be prescribed by the Government. The non-exercise of the power of prescribing the form by the Provincial Government would not confer such power upon the Board as was contended on behalf of the respondent?. The Board has no rule-making power and cannot prescribe the form. No hardship is caused by the delay on the part of the Provincial Government in framing the rules, as it is open to the trustees to recover possession by suit instead of an application under Section 78.
12. For the position that if the Government delayed in prescribing the form, the Board acquired that power, reliance was placed upon the decision of this Court in M. & S. M. Railway Co., Ltd. v. Municipal Council, Bezwada : (1941)2MLJ189 affirmed by the Privy Council in M. & S. M. Railway Co., Ltd. v. Municipal Council, Bezwada (1944) 2 M.L.J. 25 : L.R. 71 IndAp 113 : (1945) I.L.R. Mad 1 (P.C.). From the facts of that decision it would be noticed that the municipality had power to levy the property tax under Sections 81(3) and 82(2) of the Madras District Municipalities Act. The proviso to Section 81(3) laid down:
Provided that such percentages or rates shall not exceed the maxima, if any, fixed by the local Government and that the capital value of such lands shall be fixed in such manner as may be prescribed.
The local Government in that case did not frame rules for determining; the capital value of lands. The municipality therefore arrived at the capital value in a manner which suited them and levied the assessment. It was held that the fact that the Government did not frame rules prescribing the manner of arriving at the capital value did not preclude or prevent the municipality from assessing property tax on the capital value basis arrived at by it. Dealing with this point at page 921 in M. & S.M. Railway Co. Ltd. v. Municipal Council, Bezwada : (1941)2MLJ189 Somayya, J., observes:
Even otherwise, the omission of the rule-making authority to frame rules cannot take away the right of the municipal council to levy tax at the rate mentioned in the notification issued under Clause 3 (of Section 81). If, for instance, the local Government refrained from prescribing the manner in which the value of such lands should be determined, it cannot, we think, be said that the municipal council has no power at all to levy the tax at a percentage of the capital value merely because the method of determining the capital value has not been prescribed by the local Government. If the local Government does not prescribe it, then the municipal authority is free in our opinion to fix it in any manner 'chooses. We have not been referred to any decision on this point except that of the Judicial Committee in Wigg v. Attorney-General for the Irish Free State (1927) A.C. 674 but it is doubtful how far that decision applies to the circumstances of this case. We therefore do not propose to rely upon that decision.... We think it is not correct to say that the omission by the local Government to prescribe the manner in which the capital value is to be determined deprives the municipal council of the power of levying the tax on the capital value basis.
That view was approved by the Privy Council. Of course, in the present case if the Board had otherwise the power to issue a certificate like the power of the municipality in that case to levy the tax, the fact that the Government delayed in prescribing the form or failed to prescribe the form at all would not have affected the power of the Board to issue a certificate, As the power does not exist apart from the power given under Section 78 which is confined to the power to issue a certificate in the manner as may be prescribed, we think the certificate issued by the Board is not sufficient compliance with the requirement of the section.
13. It is urged that the provision with reference to the production of the certificate is only directory and not mandatory. We do not agree with this contention either, as the section requires that the order for delivery shall be made only on an application by the person and on the production of the order of appointment and of a certificate and not otherwise. If the language of the section is clear and the production of the certificate is essential, it is not open to us to condone it, however formal the requirement may be. We do not however intend to say that the certificate was merely a formal requirement as, in our opinion, it is intended to furnish proof of the properties which admittedly belonged to the trust, and Courts have always insisted upon the fulfillment of the conditions laid down by a section, however formal those conditions may be. In Maxwell's Interpretation of Statutes, 9th edition, at page 9, instances which are extreme in nature are cited. The learned author states:
If an Act provides that orders for committal must be made in ' open court', an order made, not in the Court, but in another part of the building which is also open to the public, will be invalid. The Bills of Sale Act, 1878 (c. 31), requiring an affidavit of the due attestation as well as of the execution of the deed, the omission in the former to mention the attestation was held fatal, although the attestation clause of the deed asserted it. It would not be open to the interpreter, in such cases, to shut his eyes to the formalities required, or because he deemed them unimportant, or because a hardship or failure of justice might result, in the particular case before him, from a neglect of any of them.
In these circumstances we think the learned District Judge was not justified in ordering delivery merely on the production of a certificate issued in a form prescribed. by the Board.
14. In C.R.P. No. 1341 of 1946, a contention was raised that as the application, was filed before the amendment of the section, and as the amendment came into force during the pendency of the application it was governed only by Section 78. as it stood before the amendment and not by the amended section. The accepted canon of interpretation of statutes is that the operation of a provision in an. Act is, prospective and not retrospective, unless it is expressly so stated or is necessarily intended. An exception to this rule are the provisions relating to the procedure which are always treated as retrospective and were applied to actions pending as well as future. A right of appeal however is not a matter of procedure and is a substantive right. Though a person has no vested right in a procedure his right of appeal is always treated as a vested right. See Colonial Sugar Refining Co. v. Inning (1905) A.C. 369. Maxwell's latest edition at page 232 and Craies on Statute Law, pages 337 and 338. The learned Counsel for the respondents contended that a vested right in the nature of a right of appeal was affected by the alterations in Section 78, and that he should not be deprived of the benefit of the old Section 78. Reliance was placed, by him in support of his contention on two decisions in Vasudeva Samiar, In re (1928) 56 M.L.J. 369 : I.L.R. 52 Mad. 361 and Nagendranath v. Monimohan Singh : AIR1931Cal100 . In both these cases the right in dispute was a right of appeal, and it was held that after the suit was instituted any subsequent enactment could not alter or affect the right of appeal acquired under the existing law. That, however, is not the question before us. As part of the procedure, besides the order of appointment the section now requires that a certificate from the Board also should be produced showing the property of which possession is claimed and the requirement of the section is more in the nature of procedure rather than of a right. In Kimbray v. Draper (1868) 3 Q.B. 160 the Court had to consider the question whether the provision under Section 10 of the County Courts Act, 1867, requiring the plaintiff to give security for costs in an action for tort was retrospective or not. The provision, it may be noted, did not take away any existing right but only added a further' requirement regarding the procedure in insisting upon security for costs. It was held that it was merely a matter of procedure and that it applied also to an action which was then pending and also to future actions. There are also other instances which have been cited in Maxwell's Interpretation of Statutes at pages 233 and 234. The decision in Girdharilal Son & Co. v. Kappini Gowder : AIR1938Mad688 contains a full discussion of the relevant authorities dealing with this matter. There is a distinction however between a remedy in the sense of action or right of action and rules of procedure incidental to the working of that remedy. An exception is recognised even to the rule that rules of procedure are retrospective when the effect of applying the rule would be to destroy any vested right and retrospective operation is not given in such case unless the Statute expressly stated so. (See Ramakrishna Chetti v. Subbaraya Iyer (1912) 24 M.L.J. 54 : I.L.R. 38 Mad.101.) In the present case the form of certificate was not prescribed by the Provincial Government during all the period when the petition was pending in the lower Court. It was, therefore, impossible for the petitioners to comply with the requirement of producing the certificate as required by the amended Section 78. If the amended section should apply the result would be that the existing right to recover possession of the properties under Section 78 as it stood before the amendment would be completely taken away and destroyed. In these circumstances the rule in Ramakrishna Chetti's case (1912) 24 M.L.J. 54 : I.L.R. 38 Mad. 101. should in our opinion apply. We hold accordingly that the unamended Section 78 only would be applicable and in that view, C. R. P. No. 1341 of 1946 should be dismissed with costs. The other revision petitions are allowed. The orders of the learned Judge in these cases are set aside and the petitions under Section 78 are dismissed with costs here and in the Court below.