Ramachandra Iyer, J.
1. These appeals relate to Sri Dandayuthapaniswami temple at Ayyampalayam, Musiri Taluk, Tiruchirapalli District. It will be convenient to refer to the rank of the parties as mentioned in A.S. No. 63 of 1955. That appeal arises out of a suit, O.S. No. 7 of 1951 originally filed by the first respondent. Respondents 2 and 3 who were impleaded as defendants to the suit were later transposed as plaintiffs 2 and 3. A.S. No. 131 of 1955 arises out of O.S. No. 8 of 1951 filed by the sixth respondent. The suits were filed under Section 57 of the Madras Hindu Religious Endowments Act (Act II of 1927), to set aside a scheme framed by the Madras Hindu Religious Endowments Board in O.A. No. 513 of 1949 for the management of Sri Dandayuthapaniswami temple. The Board, who was the first defendant to the suit, is now represented by the appellant, the Commissioner for Hindu Religious and Charitable Endowments, Madras. Appeal No. 132 of 1955 is filed against the order of the Lower Court in O.P. No. 131 of 1951, which set aside the order of the Hindu Religious Endowments Board in O.A. No. 513 of 1949 which held that the temple was one to which the provisions of Act II of 1927 would apply.
2. The family of the respondents owned considerable properties in Tiruchirapalli District. More than 100 years ago they had established a chathram for feeding the poor. They had also set apart certain villages, Pallur, Kallur, Ayyampalayam and Kilakudi for the expenses of the charity aforesaid and for other charities. There were two branches of the family tracing their origin to a common ancestor, Thandavaraya Pillai. By the year 1871 one of the branches became extinct. The other was represented by Thandavaraya Pillai, the grandfather of the first respondent. He, out of his private funds, commenced in the year 1883 the construction of the temple for Sri Dandayuthapaniswami at a place situate about 100 feet south of the chathram. The foundation stone for the temple was laid by Sri Narasimha Bharathiswami the then head of the Sringeri Mutt. The construction was completed by the year 1885. In the temple were installed in addition to the principal deity, Sri Dandayuthapaniswami, Sri Parvathi Parameswara, Sri Srinivasa Perumal, Karupanna Swami or Neelamegaswami, the family deity of the respondent, an image of Sri Adi Sankara and also one of the family guru, Sri Narasimha Bharathi. Since then the management of the temple was solely with Thandavaraya and after him with the members of his family, and the expenses were met out of a portion of the income set apart for the charity and also by contributions by the family. Thandavaraya died in 1915. It would be useful to refer to the following geneology to appreciate the questions which arise in the case.
Thandavaraya Pillai (d. 1916).
Veerabadra (d. 1923). Shanmugam
| (d. 1942).
| | | |
W-1. W-2. W-3. Sethuraman Res. 1
| | (Pl. 1).
| | |
| Arunachalam Balasubramaniam
| Respondent 2. Respondent 3.
Muthukaruppa (d. 1918). |
Respondent 4. 1928.
| Swarainatha (died)
During the lifetime of Thandavaraya there were disputes in the family. A suit for the possession of the chathram properties was filed by Shanmugam against Thandavaraya on the ground that there was a previous partition of the family properties, under which the management of the endowment was to be enjoyed by turns by each of the sharers. Shanmugham's claims were, however, negatived in that litigation. The judgment of this Court which finally dealt with the matter is reported in Thandavaraya v. Shanmugam I.L.R. 32 Mad. 167. The quarrels between the members of the family did not, however, stop with the termination of that litigation. Thandavaraya filed O.S. No. 21 of 1913 against Shanmugam and others for partition of the family properties. During the pendency of the suit Thandavaraya died; Veerabadra and his children were transposed as supplemental plaintiffs to the action. On 27th September, 1916, a decree by virtue of a compromise was passed for partition. In that decree the family temple, chathram, etc., and the properties set apart for the same were agreed to be managed by each of the branches by turns of three years at a time. During the lifetime of Veerabadra there were partition disputes between himself and his two major sons Muthukaruppa and Sethurama. Muthukaruppa predeceased his father, leaving two sons. Veerabadra died in 1923 being survived by Sethurama, his son, through his second wife and two other sons by his third wife. It is stated that sometime prior to his death he executed a will appointing Shanmugam as the guardian of his two minor sons for the purpose of conducting the anna-chatram vagaira charities. Sethurama died in 1928. Veerabadra's branch is now represented by respondents 4 to 7.
3. Shanmuga died in 1942, leaving behind the first respondent as his son. During the lifetime of the former, the Madras Hindu Religious Endowments Board, constituted under Act I of 1925, issued a notice under Section 80 of the Act for determining whether the temple of Sri Dandayuthapaniswami was one to which the provisions of that Act would apply. Shanmuga disputed the applicability of the Act to the temple, and contended that the temple was a private one. In the meanwhile Act I of 1925 was repealed and re-enacted as Act II of 1927. By its order, dated 29th August, 1927, the Board held that the temple was a public one, and that the provisions of the Act would apply to it. They also held that the trusteeship was hereditary in the family of Shanmugam and declared it to be an excepted temple. Exhibit B-6 is the order of the Board and Exhibit B-4 is the Annexure to the order containing the reasons for the declaration. Shanmuga filed O.P. No. 124 of 1928 in the District Court, Tiruchirapalli, under Section 84(2) of Hindu Religious Endowments Act of 1927, contesting the decision of the Board and praying for the setting aside of the same. Shanmuga also applied to the Government for an exemption of the institution from the operation of the Act. The President of the Board, whose opinion would be sought by the Government before any order for exemption was made, required Shanmuga to get an allocation of the income from the charity properties between the religious and charitable purposes. That allocation has to be made by the Board itself. A petition was filed by Shanmugam for the purpose.
4. It is clear from the evidence that the Government were willing to consider the question of exemption only if the petition under Section 84 was withdrawn. The petition was withdrawn on 3rd March, 1931. The Government passed an order exempting the temple during the lifetime of Shanmugam and respondents 1 to 3 from the operation of Sections 18, 43 to 48, 61 to 67, 76, 78 and 84 of the Act. There was some controversy before us, as to when the order of exemption was actually passed or became effective. We shall refer to that matter at a later stage. The order on the petition for allocation was made on 9th September, 1931. Exhibit B-10 is the order, under which two-thirds of the net income derived from the properties endowed were set apart for the religious purposes, viz., for the anna-chathram. The result of the exemption granted by the Government was that the temple was being managed as before by the members of the family subject to the accounts of the temple being regularly maintained and audited. On 1st December, 1944, the Government withdrew the exemption granted to Sri Dandayuthapaniswami temple in so far as it related to Sections 45 to 48 and 61 of the Act. Vide Exhibit B-7. In the year 1946, the 1st respondent conceived the idea of constructing a teppakulam or tank for the temple to facilitate the celebration of a floating festival. With the previous sanction of the Board a teppakulam was constructed, the expenses having been met partly out of the temple funds and partly out of the contributions by the 1st respondent. On 20th January, 1949, the Government withdrew all the exemptions that had been granted to the several temples, the suit temple being one of them. Vide Exhibit B-8. Shortly thereafter, the Hindu Religious Endowments Board initiated proceedings under Section 57 of the Act in O.A. No. 513 of 1949 for framing a scheme in respect of the temple. The respondents objected to the scheme on the ground, that the temple was a private one that the Board had no jurisdiction to frame a scheme, and that even otherwise there was no necessity for one. The Board overruled the contentions made by its order, dated 19th December, 1950, framed a comprehensive scheme for the management of the temple. Exhibit B-5 is the Annexure to this order. The scheme was published on 13th March, 1951. The 1st and the 6th respondents respectively filed O.S. Nos. 7 and 8 of 1951 contesting the jurisdiction of the Hindu Religious Endowments Board to frame the scheme and also the necessity and propriety thereof. A petition, O.P. No. 131 of 1951, was also filed by the 6th respondent purporting to be under Section 84(2) for setting aside the order of the Board holding that the temple of Sri Dandayuthapaniswami was a temple as defined by the Act.
5. The suit was contested by the Board on the ground, that the temple was a public one and that the scheme framed was proper in the circumstances of the case. The Board also took the plea that it was not open to the respondents to contest the character of the temple, as the order in Exhibit B-6 had become conclusive by reason of the fact that the application filed in 1928 under Section 84(2) was withdrawn.
6. The learned Judge upheld the claim of the respondents. He held that the temple was a private and not a public one, that the respondents were not barred by reason of the order contained in Exhibit B-6 that the provisions of Section 84(2) could not properly apply to a case where the dispute was whether the temple was a private or a public one, and that even otherwise the order could not be held to be final, as the Government had exempted the temple from the operation of Section 84 after the filing of O.P. No. 124 of 1928. On the other issues he held that the scheme was not justified in the circumstances of the case. On those findings he set aside the scheme, dated 19th December, 1950, framed by the Hindu Religious Endowments Board. O.P. No. 131 of 1931 was also allowed. The Commissioner for Hindu Religious and Charitable Endowments, Madras, who now represents the former Board of Commissioners, has filed the appeal against the decrees and order referred to above.
7. The two questions that arise for consideration in these appeals are : (i) whether the temple of Sri Dandayuthapaniswami at Ayyampalayam in the Tiruchirapalli District is a private or a public temple and (ii) if the temple is found to be a public one, whether there was necessity or justification for the scheme framed by the Board on 19th December, 1950, and even if it were necessary, whether it should be modified in any particular respect.
8. On behalf of the appellant it was contended that the order of the Board contained in Exhibit B-6 had become conclusive so far as the temple was concerned, and that it was no longer open to the succeeding trustees of the temple to challenge it. Exhibit B-4 is the Annexure to the order of the Board. That shows that in response to certain memoranda issued by the Board Shanmugam Pillai disputed the applicability of the Act to the temple. An enquiry was made by the Board. The Board held that the temple was one to which the provisions of the Act would apply, namely, that it was a public temple, but its trusteeship had been hereditary in the family of the disputant. It is clear from Exhibits B-4 and B-6 that Shanmuga was the only trustee to whom the memorandum was issued by the Board. The learned Government Pleader invited our attention to Exhibit A-19, a judgment of this Court in an appeal in regard to a dispute amongst the members of Veerabadra's branch. In the course of the judgment the learned Judges referred to a will executed by Veerabadra, whereby he appointed Shanmuga as the testamentary guardian for his two minor sons through his third wife, for the management of the chathram properties. In the judgment there is a passing reference to the circumstance that Shanmuga in his own name and on behalf of the minors filed a petition under Section 84 of the Hindu Religious Endowments Act. But the copy of the petition itself has not been filed in the present case. Having regard to the recital in Exhibits B-4 and B-6 it is difficult to hold that Shanmugam filed any application under Section 84 of the Act to the Board in any dual capacity, viz., on his own behalf and as guardian of the two minor sons of Veerabhadra. It is not shown how the appointment of a testamentary guardian in regard to the management of the trust properties could be valid. That apart, there is no evidence that Shanmuga ever purported to represent the heirs of Muthukaruppa or of Sethurama and his branch.
9. We have already referred to the provisions of the partition in the family under Exhibit A-9. Clause 13 of the compromise decree states thus:
The family temple, chathram vagairah charities and the properties set apart for the same shall be managed by the plaintiffs 2 to 6 branch for three years and by the defendants 6 and 7 branch for three years alternately.
It is seen from Exhibit A-19 that Shanmugam's management ceased by July, 1928, and Veerabadra's branch would be entitled to the possession of the temple, the chathram and the properties for 3 years thereafter. There is no evidence in the case to-show that the memorandum issued by the Board was ever brought to the notice of any member of Veerabadra's branch. Exhibits B-4 and B-6 do not show that Veerabadra's branch was at all represented before the Board. The learned Sub-Judge held, that although the representatives of Veerabadra's branch (namely, respondents 4 to 7) were not parties to the proceedings the order could not any the less be binding on them. We cannot, however, agree with that view. Shanmuga represented one branch of the family. The other branch was entitled to an equal right with him in regard to the management. The members of that branch would along with Shanmugam form a body of co-trustees in whom the management of the temple should be deemed to be jointly vested. It is well settled that where there are more trustees or managers than one all would be entitled to act jointly; they would be in the position of joint trustees and form a corporate body. They must execute the duties of their offices in their joint capacity and so far as proceedings in Court went they should be ordinarily joined in any suit with reference to the temple or endowed properties.
10. In Ramanathan Chetty v. Murugappa Chetty : (1903)13MLJ341 , Bhashyam Iyengar, J., observed:
This argument proceeds on a misapprehension that when trust property is managed in rotation-by co-trustees, the possession of the office by each during his turn is exclusive of or adverse to the other co-trustees. Though each of the co-trustees may during his turn in the rotation be regarded in a sense as the acting or executive trustee for the year (or period)...yet he holds the office and discharges the duties thereof on behalf of all the co-trustees and not on behalf of himself' alone. In fact, as a general rule, even during the turn of each co-trustee, all the co-trustees are entitled, and, in fact, are bound to act jointly in matters other than the ordinary routine duties.
11. It follows that whatever may be the number of trustees the office is a joint one, and the co-trustees all form as it were one collective trustee, and therefore must execute the duties of the office in their joint capacity. A scheme providing for the management by turns amongst the members of family would be only an arrangement, inter se, but outside the family, the co-trustees would form a corporate entity. The representation of the institution could be valid or effective only if all the trustees jointly act; a fortiori the institution or the body of trustees can be bound only if they are all impleaded. No one of the co-trustees derives title under any one of them; no one of them could be represented by another in legal or quasi legal proceedings. The right of management is vested in all of them, and in any proceedings initiated against the institution or against the trustees all of them should be parties.
12. Section 84(1) states:
If any dispute arises as to whether a math or temple is one to which this Act applies or as to whether a temple is an excepted temple, such dispute shall be decided by the Board.
13. Section 84(2) states:
A trustee affected by a decision under Sub-section (1) may within one year apply to the Court to modify or set aside such decision but, subject to the result of such application, the order of the Board shall be final.
A decision in order to bind the institution should be in a dispute between the institution or its accredited representative and another. One of several co-trustees could represent neither the institution nor his co-trustees but only himself. This is particularly so, when the claim is that the institution was a private one belonging to the members of a divided Hindu family, where no divided member can represent the interests of another apart from any power granted by the latter. The provision of Section 84(2) is in conformity with that principle. Under that provision (Section 84(2)) a right to apply to the Court is given to an aggrieved trustee. In a case where there is more than one trustee the expression trustee in that Section would mean all the co-trustees on the principle of interpretation contained in Section 3, Clause (35) of the Madras General Clauses Act, which states that words used in the singular shall include the plural. Section 84(1) invests a jurisdiction in the Board to decide its own cause. Such a provision should be strictly construed. The provision though general in terms and would comprehend disputes raised by any person, should be construed in the light of and in conjunction with Section 84(a), which points out the remedy to rectify or challenge the decision of the Board. Section 84(a) provides a right to challenge the decision of the Board only to a trustee. No other person would have any right to apply to the Court under Section 84(2). It should follow that the dispute under Section 84(1) should also be only with the trustee and not any other person as that other person could not apply under Section 84(2). We have already pointed out that a trustee would mean all the trustees acting jointly in a case where there is more than one trustee.
14. It is admitted that no notice of the memorandum issued by the Board was served on respondents 4 to 7. Sethurama was also alive till 1928. Those persons, who represented a section of Veerabadra's branch were co-trustees along with Shanmugam, but did not derive their title through him. They along with Shanmugam would form the body of trustees, and in the absence of any notice to them, it could not be held that there was a dispute either with the trustees or with the institution as such. It would follow that there was no dispute as contemplated by Section 84(1) or a decision.
15. Further it is an accepted principle of law that no person would be bound by an adjudication to which he was not a party except in cases of judgments in rem. It is not and cannot be contended that a decision under Section 84(1) is a judgment in rem. There was, therefore, no decision under Section 84(1) which the trustees acting as a body were bound to set aside. There being no valid decision, it was not obligatory on the part of the trustees to set aside such an order under Section 84(2). The fact that Shanmugam filed an application under Section 84(2) and withdrew the same cannot invest the order contained in Exhibit B-4 and Exhibit B-6 with any statutory finality.
16. The learned Judge held that an enquiry as to whether a temple was a public or a private one would not come within the purview of Section 84 of the Act. The reasons for that conclusion was stated to be based on the definition of a temple as contained in Section 9(12) of the Act. It states:
Temple means a place, by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of, or used as of right by, the Hindu community, or any section thereof, as a place of religious worship.
The definition would mean that it is only when a temple is a public temple as defined by the Act that an enquiry under Section 84 could be held. The Legislature itself recognised this defect in Act II of 1927 and amended Section 84 in the year 1946 thus:
If any dispute arises as to...whether an institution is a mutt or temple as defined by the Act.
It is no doubt true that for the purpose of exercising its jurisdiction the Board might have to decide as to whether a temple is a public or a private one when a question was raised before it. Such a decision according to the learned Judge could not confer any finality on the finding that the temple was a private one.
17. The question whether the Board by erroneously giving a decision that a temple s a public one could give itself a jurisdiction under the Act need not be decided in the view we are taking.
18. In Iswarananda Bharathiswami v. Commissioners, Hindu Religious Endowment Board : AIR1931Mad574 , Narayanan v. Hindu Religious Endowment Board : AIR1938Mad209 , and the majority of the Judges in Ramaswami Servai v. Board of Commissioners, H.R.E. Board : AIR1951Mad473 , answered the question in the affirmative. The opinion of Satyanarayana Rao, J., in the last of the cases was to the contrary. We prefer not to express our opinion on the question on this occasion.
19. The learned Judge further held that in view of the fact that the Government had exempted the Dandayuthapaniswami temple from the operation of Section 84 of the Act, the trustees were relieved of the obligation to file an application and contest the decision of the Board under Section 84(1). In the plaint the first respondent stated that on the Government agreeing to exempt the temple from the operation of Act II of 1927 on 7th February, 1931, Shanmugam withdrew O.P. No. 124 of 1928 on 10th March, 1931. In the written statement of the appellant the plea was more specific. It was stated:
While it (O.P. No. 124 of 1928) was pending he (Shanmugam) submitted a petition to His Excellency the Governor in Council praying for exemption of the temple from the operation of the provisions of the Hindu Religious Endowments Act. Finally the Government of Madras in Memorandum No. 2778/-1-A/2 L. & M., dated 7th February, 1931, passed an order exempting the temple during the lifetime of Messrs....
According to the written statement the order for exemption was passed on 7th August, 1931. If this were so, the argument of Mr. M.K. Nambiar, for the respondents, that as the Court lost its jurisdiction over O. P. No. 124 of 1928 by reason of the fact that the Act ceased to apply no finality could be attached to the order under Section 84(1), will have to be considered. The learned Government Pleader represented to us that the averment in the written statement was not correct, as the order of the Government exempting the temple from the provisions of the various sections of the Act was passed only on 10th April, 1931 and not earlier. He requested us therefore to afford him an opportunity to substantiate that fact by producing the order dated 7th February, 1931 and the other papers relating to the G.O. embodied in Exhibit R-3. The mistake pointed out by the learned Government Pleader was in the pleading and before any evidence could be advanced it would perhaps be necessary for the appellant to apply for the amendment of the written statement. There has been no attempt to do that. Even so, it would be very doubtful whether additional evidence could be admitted at the present stage. In the view we are taking of the case, that Exhibits B-4 and B-6 would not be binding on the entire body of trustees, it is unnecessary for us to express any opinion as to the correctness or otherwise of the learned Judge's conclusion on this matter.
20. The question then to be considered is whether the temple is one that would come within Section 9(12) of Act II of 1927. It may be stated, private temples are rare in this part of the country. That does not, however, mean that there could be no private temples. Courts have frequently recognised the existence of private temples in this State. The decision whether a temple is a public one or private depends on the evidence in the case.
21. In Deokinandan v. Muralidar and Ors. : 1SCR756 , the Supreme Court laid down the test for deciding whether a particular temple was public or private. They held that the distinction between a private and a public trust was that, whereas in the former the beneficiaries were specific individuals, in the latter they were the general public or class thereof. It was further held that the true beneficiaries of a religious endowment were the worshippers, and the test to decide whether an endowment was public or private was to ascertain whether it was the intention of the founder that specified individuals were to have the right of worship at the shrine or the general public or any Section thereof. The main characteristic of a public temple is that it is intended for the use of the public or a section thereof. On the other hand private temples are intended for the worship by the members of the family of the donor exclusively. In the case of a public temple, the public would be entitled to worship therein as a matter of right, while in the case of a private temple such worship by persons other than the founder's family would be by the sufferance of the latter. The mere fact that outsiders are allowed to worship in a temple cannot necessarily mean that the temple was dedicated to the public, as no Hindu will ever prohibit strangers from offering worship to the deity enshrined in his private temple. In all such cases worship by outsiders is referrable to the leave and licence granted by the owner and cannot be indicative of any dedication to the public.
22. In the present case there are several circumstances which justify the conclusion arrived at by the learned Judge. [After discussing the evidence his Lordship concludes]
23. The result of the evidence is that there is no proof of there having been any dedication of the temple to the public. There is no acceptable evidence to indicate that the public worshipped in the temple as of right at any time. We, therefore, agree with the conclusion of the learned Judge that the temple is a private one.
24. On that conclusion viz., that the temple of Sri Dandayuthapaniswami is a private temple, the Hindu Religious Endowments Board would have no jurisdiction to initiate proceedings under Section 57 or regulate the management of the temple by a scheme. It is, therefore, unnecessary for us to consider the further question about the necessity or propriety of the scheme framed by the Board.
25. The appeals fail and are dismissed with costs in A.S. No. 63 of 1955.