1. The application of the petitioners purported to be under Section 79-A of the Madras Hindu Religious Endowments Act. No evidence, documentary or oral, was placed on record, but the order of the Board, which the petitioners sought to set aside by their application, was made part of the pleadings. That order appointing Doraiswami Pillai, as one of the trustees till the minor, who was entiiled to that trusteeship, came of age, purported to be one passed under Section 42 of the Act.
2. No doubt, the correctness of an order of appointment passed under Section 42 as such cannot be challenged by an application filed under Section 79-A. But the question is whether the order complained of is one that infringes the provisions of Section 79 of the Act.
3. The application to the lower Court, which professed to be under Section 79-A, has to be treated as an application under Clause (3) of Section 79-A. Clause (3) can be invoked and the jurisdiction of the Court can be invoked only if there was a prior decision by the Board under Section 79-A, Clause (1). Section 79-A, Clause (1), itself refers to disputes with regard to any of the matters mentioned in Section 79. Merely because the order of the Board complained of purported to be one under Section 42 of the Act, it may not preclude a person aggrieved by that order from challenging the correctness or the validity of that order on the ground, that that order and the basis of that order were contrary to the provisions of Section 79. If the order of appointment was contrary to usage saved by Section 79, the validity of the order, it seems to me, could be questioned under Section 79-A, Clause (1), and an adjudication of that dispute by the Board invited. Once there is a decision of the Board under Section 79-A, Clause (1), Section 79-A, Clause (3) would come into play, and an application to set aside such an order of the Board would be competent. If I am to understand the order of the learned District Judge to mean that in no circumstances can the validity of an order passed under Section 42 of the Act be called in question even by invoking the provisions of Section 79 of the Act, I should express my dissent from such a view. In my opinion, if the basis of the appointment ordered undes Section 42 of the Act was contrary to the usage of the institution within the meaning of Section 79, the validity of that order could be challenged on that ground; and if a ' dispute ' arose as to the usage upon which the validity or invalidity of the order passed under Section 42 would depend, that dispute would be within the scope of Clause (1) of Section 79-A.
4. To reiterate, the order passed by the Board purported to be one under Section 42 Ex facie there is nothing in the order to indicate that there was any prior adjudication of any dispute under Clause (1) of Section 79-A. No doubt, the annexure to the order could have been looked into and marked in evidence, if necessary. But I do not consider it necessary at this stage to mark in evidence the annexure to the order of the Board. The contention of the learned advocate for the petitioners was that the order complained of amounted to an implied decision of ' a dispute ' within the scope of Section 79-A, Clause (1). The petitioners contended that no minor could discharge the office of a trustee or be entitled to joint management along with the trustees of the other branches. Another contention of the petitioners advocate was that in no circumstances could a stranger to the family be permitted to participate in the management.
5. Whether the order of the Board amounted to an implied decision of the Board within the meaning of Section 79-A, Clause (1) should itself be one of the points for determination, and that aspect of the case was not considered by the learned trial Judge. If only there was a decision under Section 79-A, Clause (1) would an application to the Court under Clause (3) of Section 79-A lie. If, on the evidence on record, the learned trial Judge were to come to the conclusion, that there was no decision at all under Section 79-A, Clause (1) then, of course, the petition would have to fail as incompetent. But if there was such a decision, even an implied decision, the other questions that arise in these proceedings may have to be determined.
6. One of the points that may arise for determination by the Court is, whether the specific provision in Section 42(1) of the Act, that, where a hereditary trustee is aminor, the Board could appoint a fit person to discharge the functions of the trustee, amounts to an express provision within the meaning of Section 79. Even that question, I think, it is better the trial Court adjudicates upon. It is not necessary at this stage to go into the soundness of the contention, based no doubt upon decrees which would bind the members of the family, that a minor during his minority is not entitled to assume or discharge the functions of a trustee. Even if under Section 42, during the minority of a hereditary trustee, the Board could appoint another person as a trustee, whether the Board was entitled to appoint a stranger to the family as a trustee, or whether such an appointment would be in contravention of the provisions of Section 79 may also arise for consideration. The other points raised by the learned advocate for the petitioners, that Section 42 can in no event apply to the cases of trustees of a temple the management of which is governed by a scheme of a Court, and that under the provisions of the scheme applicable to the suit temple it is only the Court and not the Board that can appoint a trustee, I have not considered. The need to consider these contentions would arise only if the Court holds that the petition under Clause (3) of Section 79-A is competent.
7. The order of the lower Court is set aside and the petition is remanded for disposal afresh in the light of the observations of this order. Costs of the petition to this Court will be costs in the cause and will abide the result of the application in the trial Court.