1. This is an appeal against a decree dismissing a suit instituted by the appellant under Section 63 of the Madras Hindu Religious Endowments Act. As the lower Court has dismissed the suit as barred by limitation, without going into the merits, the only point for consideration at this stage is whether the suit is so barred.
2. The last clause of Section 63 of the Act provides that the trustee or any person having interest may within six months of the date of the publication of the order complained against institute a suit in the Court to modify or set aside such order.
3. In the present case, the Board framed a scheme on 31st August, 1929, and the present suit was instituted only on 4th July, 1932. The learned District Judge was of the opinion that it was the plaintiff's duty to have filed a suit within six months of the publication of the scheme framed on 31st August, 1929, and has accordingly held that the suit is barred. But he has not taken into account the fact that by Clause (13) of the scheme framed on 31st August, 1929, it was provided that that scheme shall be in force for a period of two years. It is true that the later orders passed by the Board on the 8th January, 1930 and 16th March, 1932, purport to be orders modifying the scheme of August, 1929, by substituting fresh periods in Clause (13) of the scheme. But it seems to us that, in substance, the order of 16th March, 1932, amounts to the framing of a new scheme.
4. The learned Counsel for the respondents lays stress upon the latter part of Clause (13) of the scheme of 1929 which provides that at the end of the two years period, the scheme will be taken up for consideration and for such modification as may be necessary in view of the progress made in the administration of the affairs of the Mutt during the said period. He asks us to read the scheme as one made permanently and to hold that all that was intended by Clause (13) was that at the end of two years, the Board will consider whether any modifications were necessary. We do not think that this is a reasonable reading of Clause (13). It is not for us to say whether or not that is what the Board intended. To test the argument, let us assume by way of illustration that at the end of the two years, the Board passed no further order. It seems to us that in the face of the language of Clause (13) it cannot be contended that the scheme will of its own force continue to remain in operation any longer. When the plaintiff knew that that was the provision in Clause (13), he might well have thought it unnecessary to institute a suit to question the scheme as he expected that after two years, the whole matter will have to be dealt with afresh. The mere fact that the latter orders purport to be by way of modification of the old scheme will not justify the ignoring of the substance of what has happened.
5. There is another provision in Clause (4) of the old scheme which refers to a modification of particular provisions of the scheme at the end of two years. If the matter had remained with that clause, there might be considerable force in the respondent's argument. But as the words we have already quoted from Clause (13) specifically limit the duration of the scheme to a period of two years, we do not think that the lower Court was right in holding that the present action must be treated as one to set aside the scheme of 1929. It is in form and in substance a suit to set aside the scheme of March, 1932 and in this view, it is in time.
6. The appeal is accordingly allowed and the suit remanded to the lower Court to be disposed of on the merits. Costs to abide. Court-fee paid on the memorandum of appeal will be refunded.