1. This appeal and the Civil Revision Petition which is filed in the alternative challenge the correctness of the decision of the District Judge of Chingleput on an application to set aside an order of the Hindu Religious Endowments Board declaring the temple of Sri Devarajaswami at Conjeeveram to be an excepted temple on the ground that the right of succession to the office of trustee has been hereditary. The learned District Judge agreed with the view of the Board that the temple was an excepted temple within the definition in Section 9(5) of the Madras Hindu Religious Endowments Act.
2. A preliminary objection raises the question whether the appeal is maintainable and if not whether there are any grounds which justify interference in revision. In our opinion, there is no right of appeal against the order of the Court under Section 84(2) of the Madras Hindu Religious Endowments Act. So much was decided by the Full Bench which heard the case of Rajagopala Chettiar v. Hindu Religious Endowments Board, Madras (1933) 66 M.L.J. 43 : I.L.R. 57 Mad. 271 . It has however been contended that this decision is no longer authoritative in the light of the decision of a later Full Bench in the case of Chikkanna v. Perumal : AIR1940Mad474 , but we are unable to accept this contention. It is true that the later decision expresses the view that in the light of subsequent Privy Council decisions, Rajagopala Chettiar's case (1933) 66 M.L.J. 43 : I.L.R. 57 Mad. 271 , has given an explanation of the decision of the Privy Council in Ramachandra Rao v. Ramachandra Rao (1922) 43 M.L.J. 78 : 49 I.A. 129 : I.L.R. 45 Mad. 320 , which can no longer be regarded as authoritative; but the Full Bench which took this view was not concerned with the correctness of the decision of the earlier Full Bench regarding the appealability of an order under Section 84(2) of the Madras Hindu Religious Endowments Act. All that the learned Judges were concerned ,with was the earlier Full Bench's interpretation of a Privy Council decision which was quoted in support of an argument that a decision under Section 84(2) of the Madras Hindu Religious Endowments Act was a decree. Ramachandra Rao's case, like Chikkanna's case was concerned with the finality of a decision on a reference to the Court by the Collector under Section 30 of the Land Acquisition Act. The learned Judges who decided the case of Rajagopala Chettiar (1922) 43 M.L.J. 78 : 49 I.A. 129 : I.L.R. 45 Mad. 320 , advanced various reasons for holding that a decision under Section 84(2) of the Hindu Religious Endowments Act is not a decree. Though a portion of the reasoning in the judgment may be said to have been shaken by the later Full Bench decision, it cannot, in our opinion, be said that the decision, in Rajagopala Chettiar's case (1933). 66 M.L.J. 43 : I.L.R. 57 Mad. 271 is no longer good law in so far as it decides the main question before the Full Bench. That decision binds us and we must hold that no appeal lies against the order of the District Judge. The matter is not one of very great importance in the present case, for an alternative revision petition has been filed and we are of opinion that there are materials for holding that the District Judge has acted illegally in the exercise of his jurisdiction, so as to justify interference in revision under Section 115 of the Code of Civil Procedure.
3. The Sri Devarajaswami temple is governed by a scheme laid down by this Court in the case of Thathachariar v. Thathachariar : (1912)23MLJ134 . This decision sets forth at length the previous history of the disputes regarding the management of the temple. We do not propose to repeat this historical matter. It is only necessary to say that in this scheme suit the plaintiffs claimed that the hereditary right of Dharmakartaship appertained to the lineal descendants of one Koti Kanyakadanam Thatha Desikar. The contesting parties were the existing trustees and certain other claimants who fell into different groups. One group represented by defendants 1 and 5 to 8 contended that the trusteeship belonged to a particular branch of the large clan of descendants of Thatha Desikar by succession to an ancestor who was appointed as trustee by the Government in 1842. At the commencement of the judgment, the learned Judges point out that the contention in the plaint that the hereditary right of Dharmakartaship resides in all members of the family descended from Thatha Desikar was given up, that nothing more was claimed for the members of the Thathachars' family generally than the right to elect trustees and certain rights of interference beyond what ordinary worshippers possessed; and this concession is referred to again at p. 142 of the judgment where the learned Judges state:
The vakil for the Thathachars generally admitted that the members of the family did not claim any right to trusteeship on behalf of all the members of the Thathachar families as a body.
4. The learned Judges after reviewing the evidence came to the conclusion that neither the first defendant nor any of the members of his family could claim any exclusive right to the office of trustee. They held that the title of that branch of the family had been extinguished, that it was not an ancient title, but one derived if at all only under the appointment of the Government in 1842. In the light of these concessions and findings, the learned Judges proceeded to lay down a scheme. Clause 3 prescribes that no one shall be eligible to be a trustee who is not a lineal male descendant of Thatha Desikar, between the ages of 25 and 50, permanently residing within fifty miles of Conjeeveram and not disqualified by criminal conviction, insolvency, insanity etc., and it also lays down that no two members of a joint family shall at the same time be trustees and that of the five trustees three should belong to one branch and two to another branch of the descendants of Thatha Desikar. Having prescribed these qualifications, the scheme proceeds to lay down the manner of election. Trustees were to hold office for five years and were to be elected by the whole body of the adult lineal male descendants of Thatha Desikar. It will be seen that this scheme while recognising the hereditary right of the descendants of Thatha Desikar to appoint trustees from out of their number, prescribes a mode of succession to the office which is essentially elective and not hereditary.
5. An attempt has been made to argue that when a trustee is appointed by election from amongst the members of a certain family or group of families, the trusteeship is hereditary and in support of this contention, the decision of Madana Polo v. The Hindu Religious Endowment Board, Madras : AIR1938Mad98 has been quoted. We do not consider that this decision has any application to the present facts. The learned Judges were dealing with evidence which justified the inference that the actual trusteeship resided in a particular family, though the rights were exercised by only one member of that family. We are concerned here with a carefully drafted constitution embodied in a scheme which proceeds on decisions set forth in a considered judgment. That judgment expressly rests on the admission that the actual trusteeship does not reside in the general body of the descendants of Thatha Desikar and on the basis of this admission and the evidence in the case, it provides that the descendants of Thatha Desikar shall constitute the electoral body and that only the descendants of Thatha Desikar shall be qualified for election. In our view, on such facts, though the power of election and the qualification for election are hereditary, the succession is not hereditary.
6. An attempt has been made to argue that the definition of 'hereditary trustee' in Clause (6) of Section 9 of the Act has to be read into the definition of 'an excepted temple' in Clause (5) of that section. The definition of 'an excepted temple' runs as follows:
Excepted temple means and includes a temple, the right of succession to the office of trustee or the offices of all the trustees (where there are more trustees than one) whereof has been hereditary, or the succession to the trusteeship whereof has been specially provided for by the founder.
7. The next clause defines a hereditary trustee as the trustee of a religious endowment,
succession to whose office devolves by hereditary right or by nomination by the trustee for the time being, or is otherwise regulated by usage or is specially provided for by the founder so long as such scheme of succession is in force.
8. It will be seen that this definition enumerates four methods of devolution which qualify a trustee to be known as a hereditary trustee. Of these four methods of devolution, the first and the last have been specified as qualifying a temple to be considered an excepted temple. On the general rule expressio unius exclusio alterius it is impossible to resist the inference that when the legislature in the definition of an excepted temple specified only two of the four types of devolution which are recognised in the definition of a hereditary trustee, they intended to exclude the other two types of devolution. It seems to us therefore to follow that a temple whose trustee succeeds by nomination by his predecessor or merely in accordance with usage, does not come within the definition of an excepted temple.
9. In our opinion the learned District Judge has wholly misdirected himself regarding the basis for the decision of the matter referred to him. The words 'has been hereditary' in the definition of an excepted temple clearly indicate a state of affairs which has prevailed in the past and continues up to the present. The learned District Judge has dismissed the scheme in one or two sentences at the end of his judgment and has devoted some 45 pages to a discussion of the ancient history of this institution in order to reach a conclusion that in the past the office of trusteeship of this temple was held hereditarily by the whole clan of the descendants of Thatha Desikar. Having arrived at this conclusion, he reads the judgment in Thathachariar v. Thathachariar : (1912)23MLJ134 , as having adopted that view, though the learned Judges expressly point out that the contention to that effect has been abandoned and he concludes, in disregard of the facts, that the scheme recognises that a hereditary trusteeship vests in the Thathachariar's family. The learned District Judge overlooks the fact that in deciding whether or not a temple is an excepted temple, the Court must have regard to the mode of succession to the trusteeship during the period immediately preceding the application to the Board. He devotes no detailed consideration to the scheme which has prevailed in this temple since 1912 and he appears to have treated the question which he had to decide as a matter for historical research with little regard to the legal effect of the existing constitution. We are of opinion that in dealing with the materials in this manner, the learned District Judge has acted illegally in the exercise of his jurisdiction. We are also emphatically of the opinion that this temple is not a temple the succession to the trusteeship whereof is hereditary, having regard to the provisions of the scheme.
10. We therefore set aside the order of the District Judge and declare the temple to be a non-excepted temple. The respondents other than the 1st respondent will pay the costs of the petitioners in the Civil Revision Petition which is allowed. The appeal is dismissed; no order as to costs.