K.S. Venkataraman, J.
1. This is a Revision Petition under Section 439, Criminal Procedure Code, against the order of the learned Sub-Divisional Magistrate, Sankari, passed under Section 101 of the Madras Hindu Religious and Charitable Endowments Act (XXII of 1959), directing delivery of the temple and its accounts to four persons. Veerakutti Goundar, Perumal, Goundar Vijjiravelu and Jagannatha Pillai. Those four persons and one Kuppanna Goundar were appointed trustees of the temple by the Area Committee by their order dated 8th December, 1965, in exercise of their powers under Section 49(1) of the Act. Though the application had to be made by the five persons, including Kuppanna Goundar, it was stated in the petition that Kuppanna Goundar had since resigned the trusteeship, and the petition, was filed only by the four persons. The application was resisted by one Kuppayandi Pillai, who claimed to be a hereditary trustee. If he was a hereditary trustee, Section 49 would not apply. Vide Valliammal v. Area Committee, Madras City I.L.R. 1962 Mad. 812. He did not however specifically deny the fact alleged in the petition that Kuppanna Goundar had resigned the trusteeship.
2. The learned Magistrate overruled the objection of Kuppayandi Pillai in view of the order of the Area Committee dated 8th December, 1965, and directed delivery of possession to Veerakutti Goundar. This Revision Petition has been filed by Kuppayandi Pillai.
3. The first point taken by his learned Counsel, Sri T. Ramalihgam is that the. application was incompetent in law because Kuppanna Goundar had not joined in the application though he had been appointed as one of the trustees and he cites the decision in Angappan v. Deputy Commissioner, Hindu Religious and Charitable Endowments (1965) 1 M.L.J. 151. The learned Counsel now denies the allegation that Kuppanna Goundar resigned the trusteeship and wants to produce the affidavit of Kuppanna Goundar to that effect. But I see no reason to allow him an opportunity to produce the affidavit at this stage since the averment in the petition that Kuppanna Goundar had resigned was not specifically denied in the counter. Under Order 8, Rule 5, Civil Procedure Code, the allegation shall be taken to be admitted. But Sri T. Ramalingam says that the counter must be deemed to have admitted only the allegation that Kuppanna Goundar had resigned the trusteeship. The learned Counsel points out that it is not sufficient in law to make the resignation effective because under Section 47(3) the resignation had to be accepted; by the Commissioner. That provision reads thus:
Every trustee appointed under Sub-section (1) and subject to the result of an application if any, filed under Sub-section (4), every non-hereditary trustee appointed under Sub-section (2) shall held office for a term of five years, unless in the meanwhile the trustee is removed or dismissed or his resignation is accepted by the Commissioner or he otherwise ceases to be a trustee.
To get over this objection Sri Mohan, the learned Counsel for the respondents, produced before me the order dated 19th May, 1966, of the Assistant Commissioner accepting the resignation of Kuppanna Goundar. That is marked now as Exhibit R-l in the revision petition. But that shows that the resignation was accepted only on 27th April, 1966. The application, under Section 101 had been filed on 24th March, 1966. Sri Mohan argues that once the resignation has been accepted, it would date back to the date of the resignation. But I feel difficulty in accepting his argument because the Court must be in a position to answer the question, between 24th March, 1966, and 27th April, 1966, whether Kuppanna Goundar was a trustee or not. During that period the only answer which the Court could give was Kuppanna Goundar still continued as a trustee, and, therefore, under Section 101, as pointed out in the Bench decision in Angappan v. Deputy Commissioner, Hindu Religious and Charitable Endowment (1965) 1 M.L.J. 151, he had also to join. I say nothing now on the question whether it would have been sufficient to implead him as a respondent because the fact is that he has not even been impleaded as a respondent in the application. On this short ground, I am afraid it has to be held that the application under Section 101 was not maintainable. The revision is allowed and the order of the learned Magistrate is set aside.