1. Defendants 7 to 11 in O. S. No. 39 of 1965 on the file of the court of the Subordinate Judge, Sivaganga are the appellants herein. For the purpose of understanding the scope of the appeal, it is necessary to set out certain facts. The suit relates to one Sri Pallar Kaliamman temple, Gandhipuram St. Virudhunagar and the suit properties are claimed to belong to the said temple. Admittedly the suit properties were in the possession of defendants 1 to 4 prior to the Hindu Religious and Charitable Endowments department taking action under the provisions of the Madras Hindu Religious and Charitable Endowments Act, hereinafter referred to as the Act. The authorities functioning under the Act felt that the affairs of the temple were mismanaged and so three trustees were appointed by the Assistant Commissioner, Hindu religious and Charitable Endowments, Madurai, and they were defendants 5 and 6 and one Sinnu, who died subsequently. Defendants 1 to 4 refused to hand over possession of the temple and its properties to the said trustees, defendant 5 and 6, and preferred a revision petition to the Commissioner, Hindu Religious and Charitable Endowments and the same was dismissed on 13-12-1964. Thereafter defendants 5 and 6 filed O. A. No. 143 of 1954 for issue of a certificate to take possession of the temple and its properties and such a certificate was issued and on the basis of the said certificate, proceedings were initiated before the Additional First Class Magistrate, Virudhunagar, for taking possession. Under those circumstances, two persons by name Marudhan and Sangili acting for themselves and as representatives of the families of Pallas living in Kottaipatti, now known as Gandhipuram Street, Virudhunagar, filed O.S. 26 of 1957 on the file of the Court of the Subordinate Judge, Ramanathapuram at Madurai, to set aside the order of the Deputy Commissioner holding that the suit properties belonged to the suit temple and issuing a certificate to that effect. Defendants 1 to 4 also filed O. A. 38 of 1955 before the Deputy Commissioner, Hindu Religious and Charitable Endowments, Tanjore, for a declaration that the suit temple is a private temple and not a public temple. The Deputy Commissioner by his order dated 18-4-1957, held that the suit temple is a public religious institution. Defendants 1 to 4 then preferred an appeal before the Commissioner, Hindu religious and Charitable Endowments, Madras, and that appeal was dismissed on 11-2-1958. Thereafter, the aforesaid Marudha and Sangili and another Alagu Kudumban for themselves and as representatives of the said family of Pallas filed another suit, O.S. 16 of 1958, on the file of the court of the Subordinate Judge, Ramanathapuram, at Madurai, to set aside the order of the Commissioner, holding that the suit temple is a public institution. In both the suits, defendants 5 and 6 filed written statements contesting the case of the plaintiffs therein. However, both the suits were compromised on 22-2-1960 and under the terms of the compromise, practically all the suit properties were conceded to belong to Pallar Podhu and not to the temple as such. The only concession that was made in favour of the temple in the compromise was that a sum of Rs. 750/- out of the income from the properties was to be spent for the benefit and the festivals of he temple. In addition to that, the plaintiffs, in the respective suits and defendants adjusted Rs. 5,000/- and Rs. 3,957/- respectively, said to be costs incurred by them in the suits and other proceedings from out of the income of the properties, which was deposited into the court by the Receiver. Decrees were passed in both the suits on the basis of the above compromise. the compromise decrees also provided that the suit properties should be handed over to A. G. Mariappan, the first defendant in the present suit and N. Arasappan, the fourth defendant in the present suit, on behalf of the said Pallar Podhu. Yet another suit, namely, O.S. 33 of 1960 on the file of the court of the Subordinate Judge, Ramanathapuram at Madurai, was filed for framing a scheme for the administration of the suit properties and in that suit also on the basis of consent of the parties, a scheme decree was passed. Neither the temple nor the trustees of the temple nor an officer of the Hindu Religious and Charitable Endowments department was made a party to the said suit. In view of the conduct of defendants 5 and 6 in the two suits, namely O. S. 26 of 1957 and O. S. 16 of 1958, they were removed from the office of trusteeship and the present plaintiff was appointed as the sole trustee of the suit temple for a period of five years by the Assistant Commissioner in his proceedings dated 6-10-1960. It is thereafter the present suit was instituted for a declaration of the title of the temple to the suit properties, which are 30 items, and for recovery of possession of the same on behalf of the temple. The contention of the plaintiff was the decrees passed in the three suits, namely, O. S. No. 26 of 1957, O. S. 16 of 1958 and O. S. 33 of 1960, were collusive and also void as being hit by Section 43 of the Act and consequently they are not binding on the suit temple and its properties. Principally, on this ground the present suit was instituted for the reliefs referred to above. Defendants 1 to 3 filed a written statement putting forward a contention that the suit properties did not belong to the temple and they belonged to Pallar Podhu, who themselves managed the suit temple; that the decrees in the suits referred to above were not collusive decrees and they were valid decrees and that the plaintiff without praying for setting aside the decrees within the time prescribed by law could not straightway file a suit for a declaration of title of the temple to the suit properties and for recovery of possession thereof. They also put forward a contention that in view of the fact that a writ petition was pending on the file of this court, at that time, the suit could not be proceeded with and that the plaintiff himself had no right or authority to represent the suit temple in the present action. On the basis of these pleadings, the learned trial Judge framed the necessary issues and the issues so framed and subsequently recast are as follows:--
1. Are the decrees passed by the Sub-Court, Ramanathapuram, in O. S. 26 of 1957, 16 of 1958 and 33 of 1960, vitiated by collusion between the plaintiff or plaintiffs in those suits with the defendants who were sued in representative capacity as trustees representing the suit temple?
2. Is the suit temple a public religious institution?
3. Is the scheme decree passed in O. S. 33 of 1960 an illegal one on the ground that the scheme has to be framed only under Endowments Act of 1961?
4. Has the plaintiff to ask for the relief of setting aside the (decree in) former suits O. S. 26 of 1957 and 16 of 1958, on the file of the Sub-Court, Ramanathapuram at Madurai? (as recast).
5. Is the plaintiff a legally appointed trustee?
6. Do the suit properties belong to the suit temple?
7. Whether the suit is barred by res judicata by reason of O. S. 26 of 1957 and 16 of 1958 (recast)?
8. Has not this court jurisdiction by reason of Section 108 of the Hindu Religious and Charitable Endowments Act, 1959?
9. Is the suit sustainable in view of the pending of the writ petition filed by the defendants before the High Court?
10. Is the suit barred by limitation?
11. Is the plaintiff entitled to mesne profits and if so, in what quantum?
The learned Subordinate Judge by his judgment and decree dated 31-1-1967 held that the decrees in all the previous suits were collusive, void and inoperative and there was no need for the plaintiffs to have them set aside. He also came to the conclusion that the suit properties belong to the suit temple and consequently the trustee was entitled to recover possession of the same on behalf of the temple. We may mention at this stage itself that out of 30 items referred to, the plaintiff conceded that the suit temple had no right to item 30 and therefore a decree was passed only in relation to items 1 to 29. In this view, the learned Subordinate Judge decreed the suit as prayed for. Hence, the present appeal by defendants 7 to 11, who claim to represent Pallar Podhu.
2. Mr. A. K. Sreeraman, learned counsel for the appellants, advanced the following arguments before us-
1. Section 43 of the Act is only directory and not mandatory and therefore the consent decrees passed without complying with the requirements of that section are neither void nor inoperative and the result of non-compliance with the said section will only render the trustees liable to disciplinary action under Section 53 of the Act and the compromise decrees themselves will not be affected.
2. Though the decrees in these suits were based on compromise, still they are decrees of court and consequently so long as the decrees stand, it is not open to the plaintiff in the present action to ignore those decrees and file the present suit, because those decrees will operate as res judicata; and if at all the plaintiff should seek to set aside those decrees.
3. The plaintiff having come forward with a case praying for a declaration of title of the temple to the suit properties, the burden is on the plaintiff to make out the temple's title to the suit properties and that has not considered the various objections put forward by the appellants to the Commissioner's report and the trial Judge without correlating the suit properties with the title deeds put forward by the plaintiff merely proceeded to decree the suit on the basis of the Commissioner's report. We shall consider these arguments in the order mentioned above.
3. As far as the first argument is concerned, it is an admitted fact that the decrees in all the three suits were passed by consent of parties. In addition to this in O.S. 33 of 1960, there was a further infirmity, namely neither the temple nor the trustees of the temple nor an officer of the Hindu Religious and Charitable Endowments Department was made a party to the suit Consequently, it can be held without any difficulty that the decree in O.S. 33 of 1960 cannot be said to be binding on the plaintiff or the suit temple. The position with regard to the decrees passed in O.S. 26 of 1957 and 16 of 1958, stands on a slightly different footing. To those suits, the suit temple itself was made a party and it was represented by defendants 5 and 6 that the plaintiffs therein purported to represent the entire Pallar Podhu. As we have pointed out already, the decrees in those suits were passed on the basis of consent of the parties and the decrees stated that the suit properties did not belong to the suit temple, but belonged to Pallar Podhu and that the temple as such was not a public religious institution, but belonged to the Pallar Podhu. The question for consideration is whether the said decrees can be said to be collusive and fraudulent ones, having regard to the stand taken by defendants 5 and 6 in the original written statements filled by them and the subsequent total and complete surrender they made in favour of the plaintiffs therein. Having regard to the terms by which each said purported to take a huge sum of money from the temple income, said to be representing costs and expenses incurred by them in the litigation, there can be no doubt whatever that the compromise decrees were not bona fide ones and they were collusive ones between the parties.
4. Apart from this, there is yet another infirmity with regard to those decrees as having been passed in opposition to the provisions contained in Section 43 of the Act referred to above. That section states-
"No suit, application or appeal pending before a court to which religious institution is a party shall be withdrawn or compromised by the trustee of the institution except with the previous sanction of the Commissioner."
The argument of the learned counsel for the appellants is that though the section uses the word 'shall', the provisions of the section are not mandatory, but only directory; consequently, failure to comply with the requirements of that section will not nullify the decrees themselves, though it may render the trustees of the temple, namely, defendants 5 and 6 to be proceeded against under Section 53 of the Act on the ground that they had failed to discharge their duties and perform the functions of trustees in accordance with the provisions of the Act or the rules made thereunder. The learned counsel further contended that there are several other sections in the Act in which the word 'shall' has been used, but in all these sections, it cannot be held that the word 'shall' has been used in a mandatory sense and so also in Section 43, the word 'shall' should not be construed as imposing a mandate and it can be construed to be only directory. In support of his contention, the learned counsel drew our attention to a decision of the Supreme Court in Banasri Das v. Cane Commissioner, Uttar Pradesh, . In paragraphs 18 and 19 of the
judgment, the Supreme Court stated-
"The general rule as to which provision of law can be regarded as mandatory and which directory is stated in Maxwell on Interpretation of Statutes, 11th Edn. at page 364--'It has been said that no rule can be laid down for determining whether the command (of the statute) is to be considered as a mere direction or instruction involving no invalidating consequence in its disregard, or as imperative with an implied nullification for disobedience, beyond the fundamental one that it depends on the scope and object of the enactment. It may, perhaps, be found generally correct to say that nullification is the natural and usual consequence of disobedience, but the question is in the main governed by considerations of convenience and justice (R. v. Ignal, 1877-2 QBD 199 at p. 208, per Lush J.) and when that result would involve general inconvenience, or injustice to innocent persons, or advantage to those guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to the legislature. The whole scope and purpose of the statute under consideration must be regarded. The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially."
This rule has been applied in many cases both in India and in England. In State of U.P. v. Manbodhanlal, , this court
observed that no general rule can be laid down but the object of the statute must be looked at and even if the provisions be worded in a mandatory form, if its neglect would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the Legislature, it is to be treated only as directory and the neglect of its though punishable would not affect the validity of the acts done. These observations have been followed in other cases and recently in Bhikraj v. Union of India, , it was observed that
where a statute requires that a thing shall be done in a particular manner or form but does not itself set out the consequences of non-compliance the question whether the prescription of law shall be treated as mandatory or directory could only be solved by regarding the object, purpose and scope of that law. If the statute is found to be directory a penalty may be incurred for non-compliance but the act or thing done is regarded as good. It is unnecessary to multiply these cases which are based upon the statement in Maxwell which is quoted over and over again."
5. From this statement of the law, all that can be gathered is:
1. There cannot be a universal rule to ascertain whether a mandatory form in a particular statute is tended to be really mandatory or only ancillary or directory.
2. Whether it is mandatory or directory has to be ascertained from the intention of the Legislature in enacting the particular statutory provision.
3. That intention has to be gathered from the scope and object of the enactment.
4. If there is a penalty provided for disobedience of the statutory mandate, that may give an indication that the statutory provision was intended for the mandatory, and
5. Even if there is no penalty provided for, then also the question whether it is mandatory or directory could be answered only by having regard to the object, purpose and scope of that law.
Therefore, against the background of the above position, we have now to consider whether the requirements of Section 43 of the Act, which we are considering are mandatory or directory.
6. The Act was enacted to amend and consolidate the law relating to the administration and governance of Hindu Religious and Charitable Institutions and Endowments in this State. The object of Section 43 is to see that no fraud is practiced or no loss is caused to the religious institutions concerned and this object can be achieved by investing the Commissioner, who has got the power of superintendence over all religious institutions in the State, with authority to scrutinise the proposals for compromise or withdrawal of suit and on the basis of such scrutiny to give or refuse to give sanction, based on his opinion that the said compromise or withdrawal was for the benefit of the institution or not. Having regard to the narrow scope of Section 43, we are unable to see what public inconvenience will be caused, if Section 43 is construed to be mandatory. By construing the provision of the said section as mandatory, we are preserving the rights and interests of a religious institution, which are really in the interests of the public. On the other hand, to construe the section as only directory is to give a carte blanche to a trustee representing a religious institution to play ducks and drakes with the property, rights and interests of the institution only at the peril of being proceeded against and punished by way of removal or suspension under Section 53 of the Act. Having regard to the object sought to be achieved by providing for sanction under Section 43, we are unable to hold that the requirements of the section are merely directory. The section is a salutary provision enacted with the express object of safeguarding the interests of a public religious institution for the benefit of the public as a whole and therefore the reasonable way of construing that section is that the provisions contained therein are mandatory. Even if the word 'shall' has been used in a directory or recommendatory sense, in some other sections of the Act, in our opinion, that fact will have no relevancy to the construction of Section 43 and the meaning to be attributed to the work 'shall' in that section. Therefore, having borne in mind the principles laid down by the Supreme Court, to which we have drawn attention, we are clearly of the opinion that as far as Section 43 is concerned, the object and the scheme of the statutory provisions make it absolutely and abundantly clear that the word 'shall' has been used in that section only in the mandatory form and sense and therefore any failure to comply with the requirements of Section 43 will render the resulting action inoperative and totally void.
7. Mr. A. K. Sriraman, learned counsel for the appellant, drew our attention to some observations contained in a judgment of a Bench of this court to which one of us was a party in H. J. Dorairaj v. Viswanatha Rup and Co., . In that case the Bench was considering an argument based on the contention that a particularly order passed by Ramamurti J. was null and void. In that context, the bench quoted the following passage in the judgment of the Supreme Court in Kiran Singh v. Chamanpaswan,
"It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and whether it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of action, strikes at the very authority of the court, to pass any decree and such a defect cannot be cured even by consent of parties."
Mr. Sreeraman's argument is that the present is not a collateral proceeding and therefore the plaintiff cannot question the validity of the compromise decrees passed in the other suits and secondly the plaintiff can take such action only when the compromise decrees are set up against the interests of the plaintiff and not when the plaintiff himself has voluntarily come forward to file the present suit after referring to the compromise decrees. We are unable to see any substance in this argument. The expression 'collateral proceedings' is used in contradistinction to proceedings arising directly out of the very order which is alleged to be null and void. If an appeal or revision is preferred against an order alleged to be null and void, that is said to be a direct proceeding with reference to such an order. On the other hand, if there are independent or parallel proceedings in which that validity of the said order is put in issue, such proceedings are said to be collateral proceedings. Consequently, the expression 'collateral proceedings' has to be understood only in this sense and if so understood, the present suit instituted by the plaintiff is a collateral proceeding.
8. With regard to the second part of the argument, we are clearly of the opinion that what we have already referred to will show that defendants 1 to 4 as well as the appellants herein representing Pallar Podhu have been claiming the suit properties as their own, on the basis of the compromise decree referred to earlier and therefore that has thrown a cloud on the title of the temple to the suit properties and that consequently the plaintiff was entitled to come forward with the present suit putting forward the contention that the compromise decrees in the earlier suits were null and void.
Under these circumstances, we reject the first arguments of the learned counsel for the appellants.
9. As far as the second argument is concerned, it is enough to refer to the decision of the Supreme Court in Pulavarti Venkata Subba Rao v. Valluri Jagannadha Rao (decd.) by his heirs and L. Rs., . In that case, the Supreme Court held that a
compromise decree is not a decision by the court and it is the acceptance of by the court of something to which the parties had agreed; and a compromise decree merely sets the seal of the court on the agreement of the parties and the court does not decide anything, nor can it be said that a decision of the court was implicit in it. The Supreme Court further held that only a decision by the court can be res judicata, whether statutory under Section 11, C.P.C., or constructive as a matter of public policy on which the entire doctrine rests and such a decree cannot be strictly regarded as a decision on a matter which was heard and finally decided and therefore cannot operate as res judicata. This decision clearly shows that the compromise decrees in the suits referred to above cannot be put forth as constituting res judicata by the appellants herein.
10. With regard to the necessity for setting aside the decrees, Mr. Sreeraman relied on certain decisions rendered with reference to Order XXXII, Rule 7, C.P.C. and contended that a compromise decree passed in a suit to which a minor is a party without complying with the requirements of the provisions referred to above has been held to be only voidable and it has got to be set aside and if it is not set aside by taking appropriate proceedings within the time prescribed by law, the said decree will become final and fully operative, and similarly the compromise decrees in the earlier suits also must be construed to be only voidable and the plaintiff has to have them set aside and in so far as he has not prayed for setting aside those decrees, the said decrees have become final and conclusive against the plaintiff. We are unable to draw any analogy between the provisions contained in Order XXXII, Rule 7, C.P.C. and Section 43 of the Act, because in the former case, what is sought to be protected is the individual interest of the minor concerned, while in the latter what is sought to be protected is the rights and interests of a public religious institution in which the public as such is vitally interested. The reason is that a trustee who is in temporary charge of a public religious institution should not be permitted to inflict a permanent damage and cause irreparable injury to the institution concerned; on the other hand, in the case of a minor, the provisions contained in the procedural law are intended to safeguard the interests of such minor against the possible vagaries and malpractices of the guardian and on attaining majority, he has the liberty and opportunity of avoiding or affirming the compromise if the requirements of the procedural law had not been complied with.
Therefore, we are of the opinion that it is open to the plaintiff to ignore the said decrees and pray for necessary relief of declaration of title and recovery of possession on the basis that the said decrees are null, void and inoperative. Hence, we reject the second argument of the learned counsel for the appellants.
11. As far as the third argument is concerned, we are of the opinion that the grievance of the appellants is justified. As we have pointed our already, 30 items are involved in the suit. With regard to item 30, the plaintiff conceded that the temple had no right. With regard to the other items again, admittedly there are no title deeds in respect of items 19 to 22 and 29. Notwithstanding this, the learned Subordinate Judge has granted a decree in favour of the plaintiff in respect of these items also. With regard to the other items also there had been a great deal of controversy between the parties as to the identity of the said properties with reference to the title deeds put forward by the plaintiff. The learned Subordinate Judge unfortunately had not considered this question in detail as he ought to have done. Here is a case where certain title deeds of ancient dates had been put forward to make out the title of the temple to the various items enumerated in the plaint schedule and therefore it was the duty of the plaintiff to correlate the different items of the suit properties with the different title deeds he was putting forward in support of the title of the temple and make out his case. Unfortunately the very evidence of the plaintiff as P.W. 1 clearly shows that no such correlation had been made by the plaintiff. P.W. 1, who is the trustee-cum-Executive Officer, has in his evidence candidly admitted, that he could not correlate the title deeds filed by him with the suit items and he could not say where the items covered by the title deeds are situate. In the light of this evidence of P.W. 1, it passes one's comprehension as to how the learned trial Judge could have granted a decree declaring the title of the temple to all the 29 items. We are not expressing any final opinion as to whether the plaintiff has made out the title of the temple to all the 29 items or not, in view of the fact that we are remanding the matter for fresh disposal on this question. However, we are referring to the above feature only for the purpose of indicating the reason which impels us to remand the suit for fresh disposal. A Commissioner was appointed in the case and that Commissioner has submitted a report attempting to correlate the suit properties with the title deeds produced by the plaintiff. The appellants herein filed objects to the Commissioner's report and there is not a whisper in the judgment of the learned Subordinate Judge about the objections of the appellants. Further, even the Commissioner was not examined as a witness before the court. Under these circumstances, we are clearly of the opinion that issue No. 6 regarding title of the temple to the suit properties has been disposed of summarily in a most unsatisfactory manner. In view of this, we are forced to allow this appeal on this point and remand the matter for fresh disposal by the trial court. We make it absolutely clear that the scope of the fresh trial will be confined only to issue No. 6 and the trial court will not be free to consider any other point. On this issue No. 6, the parties will be at liberty to adduce fresh evidence, if they so desire.
12. Under these circumstances, the appeal is allowed in part and the judgment and decree of the learned Subordinate Judge are set aside in so far as the conclusion of the learned Subordinate Judge on issue No. 6 is concerned, and the suit is remanded for fresh disposal on that issue. Since we are setting aside the finding of the learned Subordinate Judge on issue No. 6, dealing with title, it is needless to point out that the finding and the decree with regard to mesne profits will also have to be set aside and are set aside and any decree with regard to mesne profits will ultimately depend upon the finding to be rendered by the trial court on the question of title. The court-fee paid on the memorandum of appeal will be refunded to the appellants and the parties will bear their respective costs in this appeal.
13. The suit was instituted in forma pauperis and since the learned Subordinate Judge decreed the suit, he has directed the defendants to pay the court-fee due to the Government on the plaint. Since we are rejected the case of the appellants on other points except with regard to title, this direction of the learned Subordinate Judge with regard to court-fee payable on the plaint will stand.
14. The suit was originally on the file of the Sub-Court, Ramanathapuram at Madurai. But, for the sake of administrative convenience, it was transferred to Siwaganga and disposed of by the learned Subordinate Judge, Siwaganga. It is now represented to us that all the parties are living within the jurisdiction of the Subordinate Judge of Ramanathapuram at Madurai, and that it will be in the interests of all parties if the trial of the suit is done by the Subordinate Judge, Ramanathapuram at Madurai. We agree with the above submission and direct that the suit on remand will be tried by the learned Subordinate Judge of Ramanathapuram at Madurai.
15. Appeal partly allowed.