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T.R. Ramachandra Iyer and anr. Vs. Ponniath Akathuthu Parameswaram Munbu and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai
Decided On
Reported in50Ind.Cas.693
AppellantT.R. Ramachandra Iyer and anr.
RespondentPonniath Akathuthu Parameswaram Munbu and ors.
Cases ReferredMohiuddin v. Sayiduddin I.L.R.
Excerpt:
- - 2. the question is one of considerable importance, and having given my best consideration to it, i have come to the conclusion that the view of the law expressed in the judgment of kumaraswami sastri, j. that act, as is well known, was passed primarily to enable the government to divest itself of the direct management of hindu and muhammadan religious endowments which they had assumed under certain regulations. 696 certain jews who were attending a synagogue in london were held not to be persons who could present such a petition with respect to the bedford charities merely because being jews they were interested on that account in obtaining a decision as to whether the poor news of bedford were entitled to the benefit of the charities which were founded for the education and relief.....abdur rahim, j.1. the sole question for determination in this letters patent appeal is whether the suit in which it has arisen and which was instituted under section 92 of the code of civil procedure with respect to a temple in north malabar is maintainable, the point being whether mr. t.r. ramachandra aiyar, one of the plaintiffs, has an interest within the meaning of that section in the temple concerned. mr. t.r. ramachandra aiyar who is a leading practitioner of this court and a brahmin resides in madras while the temple is situate in tellicherry. it is an ancient temple of some celebrity and is dedicated to the deity sri rama. mr. t.r. ramachandra aiyar is a member of the dharma eakshana sabah among whose objects is included institution of suits for the protection and due application.....
Judgment:

Abdur Rahim, J.

1. The sole question for determination in this Letters Patent Appeal is whether the suit in which it has arisen and which was instituted under Section 92 of the Code of Civil Procedure with respect to a temple in North Malabar is maintainable, the point being whether Mr. T.R. Ramachandra Aiyar, one of the plaintiffs, has an interest within the meaning of that section in the temple concerned. Mr. T.R. Ramachandra Aiyar who is a leading practitioner of this Court and a Brahmin resides in Madras while the temple is situate in Tellicherry. It is an ancient temple of some celebrity and is dedicated to the deity Sri Rama. Mr. T.R. Ramachandra Aiyar is a member of the Dharma Eakshana Sabah among whose objects is included institution of suits for the protection and due application of Hindu religious endowments. It also appears that when, on one or two occasions in the exercise of his profession he went to Tellicherry, he attended this temple1 and worshipped there, and it was further stated that he was likely to do so if he again went to Tellicherry. But the interest of Mr. T.R. Ramachandra Aiyar in this temple within the meaning of the Code is not supported on any of these facts but on his right as a Hindu to perform worship therein.

2. The question is one of considerable importance, and having given my best consideration to it, I have come to the conclusion that the view of the law expressed in the Judgment of Kumaraswami Sastri, J., is right. I think that the history of legislation on the subject makes it sufficiently clear that the legislature intended by the words 'having an interest in the trust' to include in the case of a temple or a mosque all persons having a right to perform worship or to say their prayers therein. It is not necessary to go back further than Act XX of 1863, an act which is expressly referred to in Section 92 of the Code of Civil Procedure itself and is still in force. That Act, as is well known, was passed primarily to enable the Government to divest itself of the direct management of Hindu and Muhammadan religious endowments which they had assumed under certain regulations. It also contains provisions for suits to secure the due administration of religious trusts by the trustees, managers or members of Committees. By Section 14 such right of suit is conferred on persons 'interested' in any mosque, temple or religious establishment. Section 15 then explains that the interest required in order to entitle a person to sue under the last preceding section need not be a pecuniary or a direct or immediate, interest or such an interest as would entitle the person suing to take any part in the management or superintendence of trusts. Any person having a right of attendance, or having been in the habit of attending at the performance of the worship or service of any mosque, temple or religious establishment, or of partaking in the benefit of any distribution of alms shall be deemed to be a person interested within the meaning of the last preceding section.' It is probable that this elaborate explanation of what would be deemed to be sufficient interest to maintain a suit under Act XX of 1863 was considered necessary on account of the decisions under the Romilly's Act, such as In re Bedford's Charities. (1819) 2 Swans 471 : 36 E.R. 696 Also it is clear that the Indian Legislature in 1863 did not think it would lead to undue harassment of trustees of religious foundations or to the institution of frivolous and vexatious suits, if persons entitled to worship in a temple or to say prayers in a mosque were vested with the right to institute suits to secure their proper management. Act XX of 1863 however applied only to religious foundations and the legislature deemed it advisable in the Civil Procedure Code of 1877 for the first time to make a specific provision for suits instituted for the purpose of remedying abuses relating to the administration of public charities generally. But by Section 539 of that Code only two or more persons having a 'direct' interset in the trust were given the right to sue provided they obtained sanction of the Advocate-General or the Collector for the purpose. The words 'direct interest' were repeated in the Code of 1882. This probably indicates that the Legislature, in 1877 and 1882 in providing for suits relating to public trusts intended to assimilate the law to that of England as expounded by Lord Chancellor Eldon In re Bedford's Charities 1 and in The Corporation of Ludlow v. Greenhouse (1827) 1 BNS 17, 4 ER 780 though it does not follow that it intended any difference in the nature of the interest required to sustain an action with respect to the administration of religious foundations deemed to be sufficient under Act XX of 1863. Sir Samuel Romilly's Act 52 George III Chapter 101 which provided a summary remedy in cases of breaches of trust created for charitable purposes and for their proper administration gave to ' any two or more persons' the right to present a petition for the purpose. But it was nevertheless ruled by the Lord Chancellor that only persons having a direct or clear interest in the trust were competent to present a petition under the Act. In re Bedford's Charities (1819) 2 Swans 471 : 36 E.R. 696 certain Jews who were attending a synagogue in London were held not to be persons who could present such a petition with respect to the Bedford Charities merely because being Jews they were interested on that account in obtaining a decision as to whether the poor News of Bedford were entitled to the benefit of the Charities which were founded for the education and relief of the poor inhabitants of Bedford. 1 do not find that any proposition can be deduced from the decision or observation of the Lord Chancellor in the above case or in the case of Corporation of Ludlow v. Greenhouse (1827) 1 Bligh N.S 17 from which it can be properly inferred that persons having a right to attend a religious foundation for purposes of divine worship have not a sufficient interest, to maintain an action for its proper administration.

3. The interpretation of the phrase ' direct interest ' however led to a considerable conflict of decisions in the High Courts of the country. It is not necessary to go through them all. For our present purpose they are divisible into two groups, some supported the view that worshippers at a temple or a mosque were not persons having a direct interest, while others held that they had such interest within the meaning of the Code. The case of Jan Ali v. Ramanath Mandul I.L.R. (1881) Cal. 32 was a leading decision of the former class, It ruled that worshippers or persons accustomed to say their prayers in a mosque were not within the purview of Section 539 as persons having a direct interest in the foundation. This ruling was followed by this High Court in Narasitnha v. Ayyan (1888) I.L.R. 12 Mad 157 The learned Judges here, in fact went further, holding that even the fact of the plaintiffs being managers of the temple in suit did not bring them within the provision of Section 539. The Allahabad High Court (in the case of Jawahra v. Akbqr Hussain I.L.R. (1884) All. 178 dissented from Jan Ali's case holding that every Muhammadan having a right to use a mosque for purposes of devotion was entitled to remedy, if the exercise of such right was interfered with, and that it was not even necessary for him to come under the provision of Section 30 of the Code of Civil Procedure, which deals with the right of suit by persons interested in obtaining relief or, under Section 539 of the Code of Civil Procedure. Mahmood, J., added that even if Section 539 applied, Muhammadan worshippers who were entitled and accustomed to use it had the most direct interest in the foundation and were thus comprised within the purview of Section 539. It has been pointed out on behalf of the respondent that Mahmood, J. was speaking of worshippers that were accustomed to use the mosque. But Petheram, C. J., who delivered the judgment of the full Court relied entirely on a Muhammadan's right to attend a mosque in supporting the plaintiff's locus standi in that case and I feel sure that Mahmood, J., did not want to add any qualification to Pethe-eram, C.J's., statement of the law, It is also suggested in the judgment of the learned Chief Justice in this case that the decision in Jawahra v. Akbar Hussain I.L.R. (1884) All. 178 proceeded on the provisions of Muhammadan Law. But with all respect, in order to ascertain whether a Muhammadan or a Hindu has an interest in a religious foundation, it is the Muhammadan or the Hindu Law that must be primarily looked into, and I have not heard any suggestion at the bar that under the provisions of Hindu Law a Hindu having a right of attendance and worship at a temple has not an interest in that temple similar to what a Muhammadan has in a Mosque. In the Bombay High Court, Sargent, C.J., and Nanabhai Haridas, J., in Chintaman Bagaji Deo v. Dhondo Ganhas Dev I.L.R. (1888) Bom. 612 expressed their dissent from Jan All v. Ramnath Mundal I.L.R. (1881) Cal. 32 and held that the legislature did not intend by the expression direct interest an interest of a different nature from that which the worshippers and the devotees of a deity naturally have in the proper management of the temple (p. 623). That was also the trend of view of West and Birdwood, JJ., in Manohar Ganesh Tambekar v. Lakshmiram Govindram I.L.R. (1887) Bom 247

4. At this stage the legislature intervened to settle the controversy by removing the word 'direct' by the Amending Act, Act VII of 1888, Section 44.' The effect of this amendment was fully considered by the Calcutta High Court in 1897 in the well-known case of Sajedur Raja Chowdhuri v. Gour Mohan Das Baishnav I.L.R. (1897) Cal 418 where it was laid down : ' The inference, therefore, is that the Legislature intended to allow persons having the same sort of interest that is sufficient under Section 14 of Act XX of 1863 to maintain a suit under Section 539; and this change in the law is, in our opinion, sufficient to distinguish the present case from that of Jan All v. Ramnath Mundul I.L.R. (1881) Cal. 32, which was decided before Section 539 had been amended by the omission of the word ' direct. 'This was a clear and explicit ruling that a person having a right of attendance and worship at a temple or a mosque had thereby an interest within the meaning of Section 539 in the Code of 1882 as amended by Act VII of 1888. The significance of that ruling cannot be whittled away by pointing out that the plaintiffs in that case had not only a right to worship at the temple concerned but were as a matter of fact also in the habit of performing worship there. I may also refer to a decision of this Court in Ganapati Aiyyan v. Savithri Ammal I.L.R. (1897) Mad. 10. There it was held that two Brahmin residents of the neighbourhood who had obtained leave under Section 30 of the Code were entitled to maintain a suit, as representing the Brahmin community at large, for the removal of the trustee for the time being of a choultry founded for the benefit of the Brahmins. In his judgment, Shephard, J., observed : ' It has been repeatedly held in this country that such a suit as the present may be instituted by any member of the class intended to be benefited by the charity for the support and preservation of which the aid of the Court is invoked. According to the document which evidences the institution of the charity the class for which it was intended comprised Brahmins generally.' It cannot be said that the interest of a person as member of a large and indefinite class entitled to the benefit of a charity if sufficient for the purpose of a suit under the provision of Section 30 will not be equally competent for a suit under Section 539.

5. We have not been referred to any decision in which the ruling in Sajedur Raja Chowdhuri v. Gout Mohun Das Baishnav I.L.R. (1897) Cal. 418, was dissented from or doubted, and, so far as I am aware, it has always been understood to contain a correct exposition of the law. When therefore the Civil Procedure Code was redrafted in 1908, the legislature must be taken to have been aware of the interpretation that had been put on the words 'having an interest in the trust' If that interpretation did not commend itself to the Legislature and if it intended to narrow the class of persons that could institute suits with respect to religious foundations it would have given some indication of its intention. On the other hand it is in my opinion a fair and clear inference that the legislature in retaining the same expression intended to confirm the view expressed in Sajedur Raja Choudhuri v. Gout Mohum Das Baishnav I.L.R. (1897) C. 418, that the interest required need not be pecuniary direct or immediate or in any way different from that required by Sections 14 and 15 of the Religious Endowments Act for purposes of suits relating to Hindu temples and Muhammadan mosques.

6. Considerable stress has been laid in support of the respondent's position on considerations of convenience, and such arguments were sought to be reinforced by a general reference to the law relating to the English Church though no authority at all supporting the respondent's position was cited. In my opinion, considerations of convenience are a very unsafe guide to the interpretation of a statute, especially so, in the case of an enactment like the one we are dealing with. At all events regard must in this connection be had to the provisions of Hindu Law and to customs and usages relating to Hindu temples, the nature of these foundations and the character of the worship and the services carried on there, the class of persons that resort to them, what special interests, if any, do the residents of the place in which the temples are situated, have and to what extent, persons residing in other parts of the Presidency or India generally are interested in their maintenace. What I mean will be made clear by briefly contrasting the constitution and the laws relating to the Church of England with those relating to religious foundations of Hindus and Muhammadans. The English Church has a regular and highly elaborate constitution. It is connected with the state and its administration is secured by an organization of a fixed and permanent character governed by well defined rules and usages, enforcible in Courts specially constituted for the purpose. There is one peculiarity of English Ecclesiastical Law which alone would forbid the application of English notions in the, determination of questions relating to a temple or a mosque. A Protestant Church is a parish Church. It is intended primarily for the spiritual benefit of the parishioners. The parish is a well defined ecclesiastical area and the parishioners have distinct rights and duties with respect to the parish church. They have a preferential right to accommodation during divine service and generally speaking, they alone are entitled to the services of the incumbent for the administration of Holy Communion, for solemnisation of marriages, to burial in the Churchyard and for the baptism of their children. The Church wardens and the members of the vestry are selected from the parishioners. The parishioners are bound to pay tithes or rather the rent charges into which they have been commuted. They contribute to the Church rates and are bound to pay fees for marriages, Churchings and burials and to contribute offerings during Easter. They are looked to for repair of the Church building and its fittings and under the Ecclesiastical Law they are even bound to attend divine worship on holy days. The rector is the incumbent of the parish. His remuneration consists of income derived from his benefice, ordinarily consisting of the tithes, glee-bland, parsonage house, Easter offerings and fees. The whole system in fact is parochial. Even most cathedral or collegiate churches belong in the Ecclesiastical Law to a parish.

7. On the other hand, the Indian Government as such has no duties or obligations in connection with the maintenance of Hindu temples and Muhammadan mosques. There is no ecclesiastical constitution or organisation for the administration of Hindu and Muhammadan religious establishments in any way analagous to that of the English Church. A Hindu temple or a Muhammadan mosque is not ordinarily intended, if ever for the use of the residents of a particular village or town. The idea of any thing like a parish or parishioners is entirely alien to and has no meaning in connection with these places of worship. A temple or a mosque is founded in order to enable Hindus or Muhammadans generally or of a particular sect or persuasion to carry on worship or to say their prayers therein. They are maintained out of the income of the endowments if any and from free offerings and gifts or presents made by followers of the Hindu or Muhammadan religion not confined to any particular locality. No religious ordinance enjoining the attendance of Hindus or Muhamma-dans at their respective places of worship could be enforced by any recognised authority. I am not aware, and it has not been suggested, that Hindus or Muhammadans residing in the vicinity of a temple or a mosque have any higher rights for any special duties connected with it different from those of their fellow Hindus and Muhammadans or members of the same sect, residing in any part of the Presidency or elsewhere. In the case of at least the larger temples in this Presidency, offerings, sometimes of a very valuable nature, are sent from all parts of the Presidency as well as from outside. The making of offerings is an important mode of worship in all Hindu temples and such offerings often are made by persons living at a distance. As regards a mosque, as its use consists in the saying of prayers therein, it can only be used by persons in a position to attend the mosque in person. But there are shrines in connection with tombs of Muhammadan saints, which in this connection bear analogy to Hindu temples. To these shrines offerings are sent by persons from all parts of India and the temples and shrines which receive offerings from distant places are not a few but numerous. The famous temples at Tirupati, Rameswaram, Srirangam and Madura in this Presidency and the temples at Benares and other sacred places of the Hindus, attract pilgrims in large numbers from the most distant places at stated festivals in the year. The well-known Muhammadan shrines such as at Ajmeer, Agra, Delhi and at Nagore in this Presidency are similarly resorted to by numerous Muhammadan pilgrims from all parts of the country. It is, to my mind, palpably repugnant to Hindu and Muhammadan religious consciousness that residents of the locality should alone be considered to have an interest sufficient to sustain a suit for the proper management of a temple or a mosque and none else and the utter untenability of such a notion becomes still more vivid to one's mind in the case of more the important institutions. I think the legislature of the country must have been persuaded of this fact when it gave the right to institute actions to secure proper administration of temples and mosques and their endowments by Act XX of 1863 to all persons who have a right of attendance and worship at these religious foundations and I cannot conceive that it intended by Section 539 of the old Code or Section 92 of the present Code to circumscribe within narrower limits the class of persons authorised to institute such suits. The provisions of the Code of Civil Procedure are not confined to purely religious institutions but cover all cases of religious and charitable trusts and it was urged that if we construed them in the way contended for on behalf of the plaintiffs, the results would be startling. For instance, if there is a 'dispensary in a village in this presidency for the relief of sick persons generally, we should be compelled to hold that any two persons resident at Peshawar would be entitled to sue for administration of that charity under Section 92. That no doubt is a possibility but they would have to obtain the sanction of the Advocate General and that officer might be relied on not to grant leave except in a proper case. On the other hand from the history of the legislation in this connection, it seems to me clear that the legislature must have thought that as in India no authoritative organization or machinery existed for enforcing a due and proper administration of public trusts, the withholding of the right of suit from persons having an interest in the trust in the wide sense as defined in Act XX of 1863 with respect to religious foundations would be detrimental to numerous religious foundations and charities of the country. It was pointed out by way of answer that the Advocate-General can institute 'suits in cases where people of the locality are apathetic and indifferent. But it is common knowledge that most of such suits are in fact instituted by private persons and those instituted by the Advocate-General are rare and must necessarily be so in the present condition of things. On the other hand the trustees are in my opinion sufficiently protected from vexatious suits by the safeguards provided by the section.

8. Whether the interests of the plaintiffs in a particular foundation or public trust is sufficient to support an action under Section 92, may to some extent depend upon the facts of each case. But it must in my opinion be conceded as a sound general proposition that persons belonging to that section of the public for whose benefit a public trust has been created are in the position of beneficiaries and must as such be held to possess a sufficient interest to support a suit under the Code. In the case of a temple or a mosque persons entitled to attend there for purposes of worship and devotion are presumably the beneficiaries intended by the founder (See Sadasiva Iyer, J. in Gopala Muppanar v. Dharmakartha Subramanin Aiyar (1914) 27 M.L.J. 258 and if such persons have not an interest in the institution within the meaning of law it is difficult to conceive who has. It is argued however that the interest contemplated by Section 92 must not be merely contingent or only a possibility as laid down in Mohiuddin v. Saiyiduddin I.L.R. (1894) Cal 810, But in that case the learned Judges were considering the position of a person who had only a chance of succession to the office of the spiritual head of an institution while in this case Mr. T.R. Ramachandra Aiyar in maintaining the suit relies on the right of attendance and worship already vested in him. The possibility that he may not often or ever, actually worship at the temple in question cannot in my opinion make any difference. On the other hand if a person is not entitled to worship at a particular temple he cannot by the mere fact of having actually worshipped there in the past on several or many occasions acquire a locus standi under Section 92. If the right of attendance and worship be not sufficient in itself the Courts would be called upon to enquire into questions as to the extent and mode in which a Hindu or Muhammadan suing under Section 92 of the Code of Civil Procedure observes his religious duties, how far he is in a position to resort to the temple or mosque in question and how often he actually goes there for worship or to investigate the nature and value of the offering, gift or presents made by a devotee and of other similar acts of devotion. In my opinion the Indian Legislature would ill like the Courts to embark upon such enquiries and that was probably why they took pains in Act XX of 1863 to explain the nature of the interest required and afterwards to omit the word 'direct' from the Code of Civil Procedure after the decision in Jan All's case. Further, if they respondents' arguments were sound, in cases where through a long course of misconduct Or neglect on the part of persons in charge of a temple or mosque, it has ceased to be frequented for worship either owing to disrepair of the building or the trustees' default in maintaining the necessary establishment for due performance of the services or other similar causes-and such cases are not infrequent-there would be no one who would have a Sufficient interest for purposes of a suit under Section 92.

9. As a mosque is dedicated to God in order that Muhammadans may say their prayers therein, so also a temple is dedicated to a particular deity in order that the worshippers of that deity may worship there. It follows that in the case of a mosque leaving out those rare cases, if any such exist, where the dedication is expressly limited-the followers of Muham-madan religion and in the case of a temple the Hindu devotees of the particular deity for whose worship a temple is founded are the beneficiaries intended by the founders. Suppose, there had been a deed of dedication with respect to the temple in suit, and that deed stated in so many words that Mr. T.R. Ramachandra Aiyar and all other worshippers of Sri Rama would be entitled to worship there, it could hardly be contended then that Mr. T.R. Ramachandra Aiyar would not be a beneficiary of the trust and as such entitled to maintain the suit. It cannot in my opinion make any difference in this respect that there is no such deed of dedication available in this case, if, as is admitted, the temple in question was in fact intended for the use of worshippers of Sri Rama and Mr. T.R. Eamachandra Aiyar is a devotee of Sri Kama and as such entitled to worship in this temple.

10. I would therefore allow the appeal and remand the suit to the District Judge of North Malabar District for trial on the merits.

Oldfield, J.

11. Appellants are plaintiffs in a suit filed with the consent of the Advocate General against the trustees of a. temple in Malabar under Section 92, Code of Civil Procedure; and the question is whether one of them, to whom alone I shall refer as the appellant has the interest in the trust, which is required of a plaintiff by that provision. It is alleged that he has not, because he comes Before us on the footing that he is a practitioner in this Court who has worshipped in the suit temple only on two or three occasions, when he was in its nighbourhood on professional business, and has no particular expectation of ever doing so again. His right to worship there is disputed by respondents, but may be assumed for the present purpose, as (it is admitted) it might similarly be assumed in favour of every other Hindu of the higher castes; and it is the sole qualification he alleges, The question is whether it involves his possession of the interest, which Section 92 requires.

12. Argument in his favour has been based largely on the assumption that Section 92 should be construed with reference to Act XX of 1863 and by importation into it of the definition of an 'interest' which Section 15 of that Act contains; and, if the interest required is, in the words of the latter provision, to be ' not necessarily direct or immediate ' and may be claimed by 'any person having a right of attendance...at the performance of the worship ' of the institution, then no doubt plaintiff has an interest. But although this construction was adopted in Sajedar Rajah v. Gour Mohun Das Baishnav I.L.R. (1897) Cal. 418 there is little in the details and history of the two provisions to commend it. True both deal with religious trusts and provide remedies for their mismanagement. But there the likeness between them ends; and until 1908 even that statement required material qualification. The Act applies to a particular class of religious institutions, those which were or could have been under the management of Government under Reg. VII of 1817; the Code did not originally apply in terms to religious trusts, and, whatever the original intention, it was only in 1.882 that a reference to them as well as to charitable trusts was inserted. The Act remained unaltered since it was passed in 1863 and, although the Code was passed in 1877 and amended in 1882, 1838 and 1908, no exhaustive attempt was made to create or maintain similarity between the differing provisions of the one and of the other on any of these occasions. It was only in 1908 that the jurisdiction of Courts other than the District Court over suits under the Code was made possible, although they had exercised it under the Act from the beginning; that the section of the Code was expressed as mandatory and that the right of suit under the Act was saved; and that one relief, the removal of a trustee, obtainable under the Act from the beginning, but not, if the Full Bench of the Court decided rightly in Rangaswami Naickan v. Varadappa Naickan I.L.R. (1894) Mad. 462 under the code, was expressly provided for. Last and for the present purpose most important, the Act from the beginning contained the wide description of the interest, entitling to sue, on which appellant relies; but the Code recognized only a direct interest, whatever that expression comprehends, until 1888, when the word ' direct' was omitted. These amendments no doubt did in fact assimilate the Code to the Act on various points in succession; and some of them may have been made in consequence of decisions, in which the latter was referred to, in particular the last mentioned with reference to Jan Ali v. Ramanath Mandal I.L.R. (1881) Cal. 32. But this spasmodic course of legislation does not indicate what in my opinion the material differences between the two statutes as they were enacted negative, a consciousness that the two were in pari materia or an intention that the one should be used as an aid to the interpretation of the other.

13. This conclusion is confirmed by reference to the character of the reliefs obtainable under the two statutes. In 1888, the crucial date for appellant's contention, because in it the in-interest required by the Code ceased to be qualified as direct, they differed essentially, the relief's granted by it comprising only safeguards against future mismanagement; those granted by the Act only remedies for misfeasance in the past against trustees and managers, not alienees or other strangers to the trust; and naturally so, because the provisions in the former for appointment of new trustees and for a scheme were irreconciable with those in the latter for control and for appointment of trustees by elective committees. Whilst this distinction between the reliefs, which could be granted, was retained, there is no reason for supposing, what the code did not state, explicitly, that the persons, who could claim them, were regarded as identical; and, if it cannot be shown that those persons were the same in 1888, there is none for supposing what again was not expressed, that they were intended to be the same in 1908, when provisions, explicable as natural improvements in this branch of the law and without reference to the Act, were introduced and the reliefs allowed by it were first made obtainable under the Code. I would respectfully associate myself with the suspicion, with which the learned Chief Justice regards the method of construction of one statute by reference to another, and would hold that in this case its employment is without justification.

14. The description in the Code until 1888 of the qualifying interest as direct is in fact the immediate basis of the majority of the decisions, to which we have been referred. For until that year, the question was always whether the plaintiff, who had some interest, had a direct one. Thus to give two instances, in Jan All v. Ram Nath Mandul I.L.R. (1881) 32, already referred to, plaintiffs where habitual worshippers in the mosque which was in question, and the Court, finding in Act XX of 1863 a distinction drawn between persons possessing a direct and immediate interest, and those who were merely in the habit of attending the worship, held that they had not the direct interest required; and in Jawahra v. Akbar Hussain I.L.R. (1884) All. 178, the existence of a direct interest in persons so situated was sustained, Mahmood, J., dissenting expressly from the Calcutta decision. To turn to the more important cases, those enumerated in the Judgment of the learned Chief Justice as decided after the omission of the word ' direct,' it is sufficient that, as he observes, the plaintiifs; who were allowed to sue, had in each an interest, which would have enabled them to proceed under Romilly's Act in England and had more than a mere right to worship. Closer reference is necessary only to two, which have been particularly relied on. In Mohiuddin v. Sayiduddin I.L.R. (1891) Cal. 810, the dictum that the interest must be an existing one and not a mere contingency at first sight is against appellant's contention. But the only contingency in question was the mere possibility of the plaintiffs' succession to the management of the institution which depended on circumstances beyond their control and in no way resembled the existing right of a potential worshipper, on which appellant relies. On the other hand, in Sajedur Raja Chowdhuri v. Gourmohun Das Baishnav I.L.R. (1897) Cal. 418 although the issue was stated as it has been in this appeal and the argument that the interest required must be different from a mere right to worship was rejected, the Court proceeded, firstly on the adoption of the definition of ' interest ' in Act XX of 1863, from which I have dissented, secondly with reference to the decision in Manohar Ganesh Tambekar v. Lakshmiram Govindram I.L.R. (1887) Bom. 247 which in fact recognises the right to sue, not of mere worshippers, but of the manager of a temple and of priests who supervised the worship there of pilgrims, and thirdly on the finding that the plaintiffs had ' a somewhat larger interest than that of mere worshippers'; and in these circumstances I do not feel bound by the conclusion. But, although the direct result of the authorities, even after 1888, is negative, indirectly they are strongly against appellant. For the fact that the wide construction he proposes has never been suggested during the last thirty years, although in every case it would have afforded a short ground of decision in the plaintiff's favour, is clear reason for doubting its correctness.

15. Apart from authority appellant relied mainly on the enumeration of alleged crucial instances, as admitting only of a decision consistent with his claim. But he did not show how any principle could be deduced from them; and, so far as they could be tested with reference to convenience, the result was against him, since, apart from considerations of bona fides, the possession of a mere right to worship affords no security for the plaintiffs' ability to propose a suitable scheme or later to see to its working. On the subject matter and language of the section it was suggested that the interest entitling to sue should be defined liberally to include such cases as appellant's, because the necessity for the consent of the Advocate-General or Collector will afford a corrective, where one is required. But that consent is merely a condition precedent to the institution of the suit and cannot affect the responsibility of the Court for the decision as to the plaintiffs' qualification. On the other hand no good reason has been shown against the interpretation of the word 'interest' in the section in the manner, in which it is ordinarily interpreted in other legal connections and in which I shall interpret it, as an interest, which is substantial and not sentimental or remote. This conclusion is consistent with the only cases cited, in which a merely potential right to claim the benefits of the trust was directly in question, Corporation of Ludlow v. Greenhouse (1827) 1 BN. 17, and In Re. Bedford Charities (1819) 2 Swans 470, the former insisting on proof of a ' clear ' interest, whilst the latter negatived the interest in a charity for the poor of one place alleged by persons, who were wealthy and lived in another.

16. The foregoing, of course, affords no immediate or explicit answer to the question as it was originally stated, whether a right to enjoy the benefits of a trust involves possession of the interest referred to in Section 92; and the assumption that such an answer must be possible underlay most of the agrument in favour of the comprehensive qualification, for which appellent contended. But there is no reason for assuming that an answer to this or any other question of interpretation, which excludes considerations of degree or the necessity for enquiry into the facts of each case, can be found or should be looked for at the expense of established principle. And in practice such enquiry will present no difficulty. Proof of residence in the neighbourhood of the institution will no doubt be one way of establishing possession of an interest, not by any analogy with the rights of parishioners in England, but on the simpler ground that those who live near to the institution will be most likely to take advantage of its benefits. Other ways, however, will not be excluded; and therefore |I am not troubled by the suggested cases of devotees, who may conceivably visit a shrine in the future, although there is no reason for expecting and no probability that they will ever do so; or of institutions, which have ceased to be frequented, because their services have been discontinued. In the first class of cases the grievance may fairly be described as sentimental: in the second the answer is that any two persons who can show at any time that they are prejudiced or have any well-founded expectation that they will be prejudiced by the discontinuance, will be entitled to sue : and in both classes it is possible that, if exceptional circumstances rendering a private suit impossible are established, the Advocate-General may be justified in the independent exercise of his powers. Such cases, however will be rare and usually it should be easy to ascertain whether even occasional visitors or pilgrims, actual or prospective, have a substantial interest, if the character and sphere of reputation of the institution, the area from which votaries come to it and the purposes for which they ordinarily come are considered. And in the present case it is unnecessary to pursue such considerations further. For they do not arise on the statement of appellant's position, which has been made. It involves that his interest is based on a mere possibility and is too remote to be substantial: and therefore, however laudable his motives or those of the Society, in which he holds office, his right to sue has not been established.

17. I would dismiss the Letters Patent Appeal with costs.

Coutts Trotter, J.

18. This Letters Patent Appeal comes before us on a difference of opinion between my Lord the Chief Justice and my brother Kumaraswami Sastri in an appeal from the District Judge of North Malabar. The suit was one under Section 92 of the Civil Procedure Code asking for the removal of the Trustees of a temple at Tellicherry and other kindred reliefs. The plaintiffs were a Nambudri Brahmin of North Malabar, as to whom no question arises, and Mr. T.R. Ramachandra Aiyar a well-known Vakil practising in these Courts. The learned District Judge dismissed the suit on the ground that Mr. Ramachandra Aiyar had no interest in the trust relating to the temple within the meaning of Section 92 of the Code of Civil Procedure. The learned Chief Justice agreed with his view and Kumaraswami Sastri, J., dissented from it. I find myself in entire agreement with the views of the former and only express my opinion in words of my own out of respect for the opinion of Kumaraswami Sastri and Abdnr Rahim, JJ.

19. It is desirable to state the exact position of Mr. Ramachandra Aiyar in relation to this suit, and the facts are to be gathered from the learned District judge's judgment. He is the vice-president of the Dharma Rakshana Sabha and is so described in the plaint. That is a body which interests itself in the conduct and management of temples in Southern India, but it is not contended that that fact would, of itself, give Mr. Ramachandra Aiyar any locus standi in this suit. His personal connexion with the temple is so slight as to be negligible. He is a native of Cochin, he lives in Madras and the utmost that can be said is that on two or three occasions the last of which was some eight or ten years ago, while visiting Tellicherry in his professional capacity, he took the occasion to worship in this temple. No one has seriously urged that so slender a connexion could be relied upon as creating any real interest in the temple, in the popular sense of that term. The proposition put forward is a much wider one, namely, that every Hindu has an interest, within the meaning of the section, in every Hindu temple throughout the length and breadth of India. The arguments that have been addressed to us appear to me to fall under three heads; first, the argument from the Indian decisions, secondly, the suggested analogy of Romilly's Act 52 Geor, III, Cap. 101 and the decisions under it, and thirdly the suggested analogy of Section 15 of the Eeligious Endowments Act of 1863.

20. In considering the decided cases it is no doubt important to remember and keep in mind the fact that Section 539 of the old Code stipulated that the relators should have not merely an interest but a 'direct' interest in the trust. By Section 44 of the Amending Act of 1888. the word direct ' was omitted from Section 539 and it has not re-appeared in Section 92 of the persent Code. Accordingly, the cases decided before 1888 were applying a more stringent rule than can be applied at the present day in testing the locus standi of the relator. The Bombay cases Manohar Ganesh Tambekar v. Lakshmiram Govindram I.L.R. (1887) Bom. 247 and Chintaman Bajaji Dev v. Dhondo Ganesh Dev I.L.R. (1888) Bom. 612 do not help us much, because the interest there was so manifest as to be held by the Court; without difficulty, to be not merely an interest but a 'direct' interest, within the meaning of the old section. Jawahra v. Akbar Hussain I.L.R. (1884) All. 178, which was relied upon by Mr. Ganapathi Ayyar does not appear to me necessarily to support the position for which he contends, because the plaintiffs in that case lived in the village where the mosque in question was situated, habitually worshipped in the mosque and, moreover, had actually been obstructed in the attempt to perform their devotions in it. Mahmood, J, whose judgment has been relied upon by the appellants, describes the plaintiffs in that case as ' personally entitled and accustomed to worship there.' Of the Calcutta cases, in Sajedur Raja Chowdhuri v. Gour Mohun Das Baishnav I.L.R. (1897) Cal 418, the learned Judges, no doubt, express themselves as of the opinion that the 'right to worship' is sufficient to constitute an interest under the present section. I think that must he qualified by two considerations : the first is that the learned Judges, in my opinion, at page 427 completely distort the effect and scope of the decision in Manohar Ganesh Tambekar v. Lakhmiram Govindram I.L.R. (1887) Bom. 247; the other is that in stating the position of the plaintiffs, they say this : 'We may add that the two plaintiffs in the present case have a somewhat larger interest than that of mere worshippers, the plaintiff No. 1 alleging that he has for some time been performing some of the duties 'of the Mohunt and plaintiff No. 2, that he has been performing the poojah in the temple. These allegations have been supported by some evidence which is not contradicted.' Now one would contend that the discharge of the duties of Mohunt and the performance of poojah did not constitute an interest, but, apart from those special facts, the use of the term 'mere worshippers' by the learned Judges suggests, to my mind, that their view was not focussed on any distinction between de facto worship and the abstract and even unexercised right of worship-a distinction, which, for the purposes of this case, goes to the root of the matter. Mohiuddin v. Saiyiduddin I.L.R. (1893) Cal 810 is an express decision that the interest required under the section must be an 'existing one and not a mere contingency.' Jan Ali v. Ramnath Mundul I.L.R. (1881) Cal. 32, is an important case, because it is common knowledge that it was in consequence of that decision that the change in the law 'was made to omit the word ' direct.' The plaintiffs in that case lived in the village where the mosque was situated and were in the habit of worshipping regularly at that mosque. The Court, nevertheless, decided that they had not a direct interest in the mosque. 1 do not think that any of the Madras decisions have any direct bearing on the point we have to decide. Gopala Muppanar v. Subramania Iyer : (1914)27MLJ253 is no doubt an authority for the proposition that every Hindu, with perhaps certain possible restrictions which I need not consider here, has a right to worship in every Hindu temple throughout India. I am not concerned, for the purposes of this case, with questioning that doctrine or the corresponding doctrine that every Muhammadan has a right to worship in every mosque in India, and perhaps in the whole world. I am not prepared to treat, the observations of the learned Judges in Sajedur Raja Chowdhuri v. Gour Mohun Das Baishnav I.L.R. (1897) C. 418 as compelling me to hold that the right to worship in a temple is equivalent to an interest within the meaning of Section 92 of the Civil Procedure Code.

I now pass to the argument put forward by the respondent based on the analogy of Romilly's Act and the two decisions In re Bedford Charities (1819) 2 Swans 470 and Corporation of Ludolw v. Greenhouse (1827) 1 Bligh. N. 817. Romilly's Act authorised any two or more persons to take proceedings under the Act in regard to the trust to which' the Act referred, on obtaining the sanction of the Attorney-General, and the Act contains not a word to prescribe that they should have an interest,' direct or otherwise. Nevertheless, Lord Eldon in those two cases expressed an emphatic opinion that the Court would not listen to a relator who had not an interest which he describes in one place as ' clear , and in another as ' direct'. As the section of the Civil Procedure Code is known, as a matter of history, to be based on Romilly's Act, I do not think this argument from analogy is one that can be overlooked.

21. Mr. Ganapathi Ayyar relied strongly on the definition of 'interest' contained in Section 15 of the Religious Endowments Act of 1863. Section 14 of that Act gives a right of suit, in certain matters, to 'any person or persons interested in any mosque, temple or religious establishment, or in the performance of the worship or of the service thereof or the trusts relating thereto.' Section 15 proceeds to define the requisite interest in two clauses, the first of which is negative and the second positive, The clauses are as follows :-

The interest required in order to entitle a person to sue under the last preceding section need not be a pecuniary, or a direct or immediate, interest or such an interest as would entitle the person suing to take any part in the management or superintendence of the trusts.

Any person having a right of attendance, or having been in the habit of attending, at the performance of the worship or service of any mosque, temple or religious establishment, or 'of partaking in the benefit of any distribution of alms, shall be deemed to be a person interested within the meaning of the last preceding section

22. The important words are those in the second clause. If it be conceded that every Hindu has a right to worship in every temple, and the definition of Section 15 can be applied, as it stands, to the expression 'interest ' in Section 92 of the Code of Civil Procedure, the appellants' chain of reasoning seems to me to be complete. I respectfully agree, in general, with the learned Chief Justice's observations as to the danger of taking a definition of an expression in one statute and applying it to the same expression in another. But I am constrained to admit that very special considerations apply to the case of these two particular statutes. In the first place they are in pari material dealing with practically the same subject matter. The argument goes even further than that and invites us to infer that the deliberate intention of the legislature must be taken to have been to assimilate the interest stipulated for in Section 92 of the Code of Civil Procedure to the interest defined in Section i5 of the Religious Endowments Act. The argument, as I follow it, is this: Before the amending section of the Act of 1888, Section 539 of the old Code required a direct interest in the relator. Then came the decision in 1882 in Jan Ali v. Ram Nath Mundal L.R. 8 Cal. 32. That case decided, as I have already pointed out, that the fact that the plaintiffs were residents of the village in which the suit mosque was situated and were regular worshippers at it, did not give them a direct interest in the trusts of the mosque. But it now becomes important to observe further that the learned Judges went on to express the opinion that the suit should have been instituted under Section 14 of the Religious Endowments Act of 1863-doubtless a clear intimation that in the opinion of the learned judges, the relators had an interest within the meaning of that section, though not a direct interest. The draftsman of the amending section of the Act of 1888, we are to suppose, set himself to the task of so amending the law that persons in the position of the plaintiffs in Jan Ali v. Ram Nath Mundal L.R. 8 Cal. 32 should be enabled in future to sue under the section of the Civil Procedure Code. He had before him the section of the Religious Endowments Act and the opinion of the learned Judges in Calcutta that the plaintiff had an interest within the meaning of the section of the Religious Endowments Act. When he omitted the word ' direct' is it not most natural to suppose that he intimated that the expression ' interest' in the amended Code should have the same meaning as in the Religious Endowments Act? I think this is a most cogent argument and would yield to it but for one reason. Assuming that the words of the Religious Endowments Act, if it applied, would cover the case of the present plaintiffs, I have no manner of doubt that such a result was not in the least in the contemplation of the draftsman of the Religious Endowments Act and that such a result from the wording of the definition would have been regarded as startling by everybody at the time. I think that is sufficient warrant for refusing to import the definition contained in the one Act into the other. However close the historical connection between the two sections may be, the very fact that the words used in one may lead to an inconvenient and unforeseen conclusion is, it seems to me, good reason for refusing to import those words and producing the same conclusion in the other.

23. Numerous illustrations were put during the course of the argument to show the difficulties involved on one side or the other. The inconvenience and. to my mind, the absurdity of the proposition that any two Hindus, residing say in Peshawar can be said to have an interest in a temple in Malabar, by virtue merely of being Hindus, with the right to worship in that temple if they should ever find themselves in its vicinity, is apparent from its mere statement. On the other side, it was pressed upon us that, if that proposition in its extreme width be rejected, it is impossible to draw a line of demarcation. Hindu and Muhammadan Law know nothing of territorial boundaries of temples or their priests or of anything corresponding to the idea of a parish with special local rights in 'its parishioners, which would easily solve the difficulty in the case of an English Established Church. In so far as the decided cases suggest a limitation, the limitation suggested is that of living in the neighborhood of the institution in question and habitually resorting thereto for purposes of worship. On that, one can be asked, what is your definition of neighborhood? What is your definition of habitual resorting? On that I am prepared at once to admit that I can find no words that would solve those difficulties by a universally applicable formula. But I do not think that concludes the matter. I am content to say that the task is impossible, that the most that can be done, or attempted to be done, is to say that the interest required by the statute to reside in the relator must be, in the words of Lord Eldon ' clear ' or in the words of the learned Chief Justice in this case, ''a present and substantial, and not a remote and fictitious, or purely illusory interest,' or, in the words of the learned Judges in Mohiuddin v. Sayiduddin I.L.R. (1894) Cal. 817 'an existing interest and not a mere contingency.' Beyond that, it seems to me that the question as to whether any given person has or has not an interest, as so defined, is a pure question of fact and must be left to the Court, before whom he appears to decide in the light of these general principles on a consideration of the particular circumstances of each case. I see nothing to regret in such a conclusion and do not feel perturbed at my own or any one else's inability to construct a logical bed of Procrustes to fit each and every imaginable case. No doubt there are cases of special difficulty, such as the great pilgrimage temples at Benares and other sacred places, where the majority of the worshippers come from all over India. The extreme case perhaps is the temple of Rameswaram in this presidency, which is situated on an island, and no one lives near it except those connected with the carrying out of the religious worship 'in the temple, and the worshippers are exclusively pilgrims. It is urged that, if you are to put a construction on the section which in any way confines the right of suit to local or habitual worshippers, not one of the thousands who attend the temple would fulfil the requirement. If it be so, I do not shrink from the conclusion. Section 92 of the Code does not confine the right of suit to relators but gives a right of suit to the Advocate-General himself directly. As guardian of the religious interests of the community as a whole he could doubtless be relied upon to take proper steps for the due administration of those religious establishments which are more the resort of the public at large than of the residents in their immediate neighbourhood. I am, therefore, of opinion that there is nothing which compels me to adopt the wide proposition contended for by the appellants with its results so directly opposed, as I think, to convenience as to make the position of temple trustees an intolerable one.

24. I, therefore, agree with my lord the Chief Justice and my brother Oldfield in dismissing this appeal with costs.


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