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Arikapudi Balakotayya Vs. Yadlapalli Nagayya - Court Judgment

LegalCrystal Citation
SubjectTrusts and societies
CourtChennai
Decided On
Reported inAIR1946Mad509
AppellantArikapudi Balakotayya
RespondentYadlapalli Nagayya
Cases ReferredRajagopala Chettiar v. H.R.E. Board Madras
Excerpt:
- - 1. the main question involved in this appeal is whether the decision of the district court under section 84, clause (2) upholding the order of the madras hindu religions endowments board under section 84(1), madras hindu religious endowments act, 2 [ii] of 1927, (hereinafter referred to as the act) operates as res judicata in a subsequent suit by the defeated trustee. durga bai who addressed a very forcible argument on the facts and were of the opinion that on the merits the appellants had a good case. in the prior proceeding as well as in the later suit, the question was whether under a settlement deed of 1858 one tulaji bai took only a life interest. such dispute forms no part of the award, and it would indeed be strange if a controversy between two people as to the nature of.....somayya, j.1. the main question involved in this appeal is whether the decision of the district court under section 84, clause (2) upholding the order of the madras hindu religions endowments board under section 84(1), madras hindu religious endowments act, 2 [ii] of 1927, (hereinafter referred to as the act) operates as res judicata in a subsequent suit by the defeated trustee. the temple in question was declared by the endowments board to be a non-excepted temple on an application filed under section 84(1) of the act. it was urged in that application that the applicant and his forefathers were the hereditary trustees of the temple. this was negatived and the petition was dismissed. the applicants then filed the suit out of which the present appeal arises for a declaration that the.....
Judgment:

Somayya, J.

1. The main question involved in this appeal is whether the decision of the District Court under Section 84, Clause (2) upholding the order of the Madras Hindu Religions Endowments Board under Section 84(1), Madras Hindu Religious Endowments Act, 2 [II] of 1927, (hereinafter referred to as the Act) operates as res judicata in a subsequent suit by the defeated trustee. The temple in question was declared by the Endowments Board to be a non-excepted temple on an application filed under Section 84(1) of the Act. It was urged in that application that the applicant and his forefathers were the hereditary trustees of the temple. This was negatived and the petition was dismissed. The applicants then filed the suit out of which the present appeal arises for a declaration that the office of trusteeship was hereditary in their family, and that they and their predecessors were the hereditary trustees of the temple. They also filed an application under Section 84(2) of the Act in the District Court of Guntur (O.P. No. 96 of 1942). In the present suit the Court held, among other things, that the plaintiffs did not prove that they were the hereditary trustees and hence this appeal.

2. After the disposal of the suit by the lower Court, the petition (O.P. No. 96 of 1942) filed in the District Court came on for hearing, the matter was enquired into and the District Court decided that the petitioners before it did not prove that they were the hereditary trustees of the temple. We heard Mrs. Durga Bai who addressed a very forcible argument on the facts and were of the opinion that on the merits the appellants had a good case. Then it was brought to our notice that O.P. No. 96 of 1942 which was filed in the District Court of Guntur and which was pending when the judgment under appeal was rendered, was subsequently tried on the merits and a decision adverse to the appellants was given by that Court. We were also told that the matter was brought up in revision to this Court and that this Court declined to interfere. It was, therefore, urged that apart from the correctness of the decision of the lower Court on the merits, the appellants were precluded from urging their rights by reason of the adverse decision in the original petition. We called for the order of the District Judge in the said original petition and we have allowed that to be exhibited in the appeal. If before an appeal is heard, there is another decision which has become final and which operates as res judicata on the question at issue in the appeal, the appellate Court ought not to refuse to allow the later judgment to be filed. Once it is brought to its notice that there is such a judgment, it is the duty of the appellate Court to allow it to be filed in order to avoid conflicting judgments and further complications. This position is not controverted and we have therefore to see whether the judgment of the District Court in O.P. No. 96 of 1942 precluded us from entertaining the claim of the appellants.

3. The solution of the question depends upon the nature of a proceeding under Section 84(2) of the Act. It is undoubtedly the law that the doctrine of res judicata is not confined to decision in a suit and that the doctrine applies even to decisions rendered in proceedings which are not suits. But how far a decision which is rendered in an original proceeding will bind the parties depends upon other considerations. It is here that Courts have had considerable difficulty in deciding whether the decision rendered in such a proceeding operates as res judicata.

4. We may begin the discussion of this question with the decision of the Judicial Committee in Ramchandra Rao v. Ramchandra Rao A.I.R. 1922 P.C. 80. A reference was made by the Collector under Section 31 (2)(now Section 30), Land Acquisition Act, 1[I] of 1894. There was no dispute as to the amount of the compensation awarded by the Collector, but there was a dispute as to who was entitled to that amount. There were rival claimants and hence the matter was referred under Section 31, Sub-section (2) to the Court. The Court held in favour of one of the claimants. The matter was taken up on appeal to the High Court and the High Court gave its own decision. The matter was not carried further. Subsequently disputes arose between the same parties as to who was entitled to some property of considerable value. The question was whether the decision rendered by the High Court in the land acquisition proceedings operated as res judicata. In the prior proceeding as well as in the later suit, the question was whether under a settlement deed of 1858 one Tulaji Bai took only a life interest. That question was decided in one way by the High Court in the proceedings under the Land Acquisition Act. In the subsequent suit the decision of the High Court was pleaded as res judicata. The application of the doctrine was resisted on the ground that the decision set up in bar was rendered not in a suit but only in an original petition and that the decision did not operate as res judicata. The Judicial Committee pointed out that, where the proceedings under the Land Acquisition Act, had proceeded beyond the stage of the fixing of the amount and there was a dispute between two rival claimants to the amount awarded, the dispute related to title to property and that the Court acting on a reference under Section 31(2) decided the question of title between the parties. That being so they held that the decision though rendered in an original proceeding and not in a suit nevertheless operated as res judicata. They pointed out that the decision of the High Court in the previous case was not appealed against, as it might have been, and that not having been appealed against, the decision became final. On page 330 we find this:

The award as constituted by Statute is nothing but an award which states the area of the land, the compensation to be allowed and the apportionment among the persons interested in the land of whose claims the Collector has information, meaning thereby people whose interests are not in dispute, but from the moment when the sum has been deposited in Court under Section 31, Sub-section (2) the function of the award has ceased; and that all that is left is a dispute between interested people as to the extent of their interest. Such dispute forms no part of the award, and it would indeed be strange if a controversy between two people as to the nature of their respective interests in a piece of land should enjoy certain rights of appeal which would be wholly taken away when the piece of land was represented by a sum of money paid into Court. There has in the present case been a clear decision upon the very point now -in dispute, which cannot be re-opened. The High Court appear only to have regarded the matter as concluded to the extent of the compensation money, but that is not the true view of what occurred, for as pointed out in Badar Bee v. Habib Merican Noordeen 1909 A.C. 615, it is not competent for the Court, in the case of the same question arising between the parties, to review a previous decision, no longer open to appeal, given by another Court having jurisdiction to try the second case. If the decision was wrong, it ought to have been appealed from in due time. Nor in such circumstances can the interested parties be heard to say that the value of the subject-matter on which the former decision was pronounced was comparatively so trifling that it was not worth their while to appeal from it. If such a plea were admissible, there would be no finality in litigation. The importance of a judicial decision is not to be measured by the pecuniary value of the particular item in dispute.

5. Dealing with the argument that the previous decision was not rendered in a suit they said this:

It has been suggested that the decision was not in a former suit, but whether this were so or not makes no difference, for it has been recently pointed out by this Board in G.H. Hook v. Administrator-General of Bengal A.I.R. 1921 P.C. 11, that the principle which prevents the same case being twice litigated is of general application and is not limited by the specific words of the Code in this respect.

6. This decision lays down definitely that even though a decision may be given in a proceeding which is not a suit, it may still operate as res judicata if substantial rights of parties are determined. No doubt, it is true as pointed out by Mr. Raghava Rao, the learned advocate for the appellants, that the decision of the High Court in the previous proceedings was appealable and that the Judicial Committee laid stress on the fact that the decision of the High Court though appealable was not in fact appealed against and had been allowed to become final. But, as has been pointed out repeatedly, the question whether a decision operates as res judicata does not depend upon the appealability of the decision. A decision may not be appealable and still it may operate as res judicata. If this decision had stood alone, the question would not have presented much difficulty. But there is another decision of the Judicial Committee in Bhagwan Din v. Gir Harsaroop . In that case proceedings were started under Act 14 [xiv] of 1920 for certain reliefs provided under that Act; and one question was whether there was a public religious trust. The question was determined by the District Court and an order passed. Later on there was a regular suit in which the same points were raised and the question was whether, the decision rendered in the O.P. under Act 14[XIV] of 1920 operated as res judicata. The Judicial Committee held that it did not. They laid down that the decision or order under Act 14[XIV] of 1920 was given in a summary proceeding, that the order was by express enactment not appealable, that no finality was attached by the Legislature in express terms to the order and that therefore the decision under that Act did not operate as res judicata so as to preclude the parties from re-agitating the question in a subsequent suit. In later decisions the difficulty has been whether a particular case comes within the decision of the Judicial Committee in Ramchandra Rao v. Ramchandra Rao A.I.R. 1922 P.C. 80 or whether it jails under the later decision in Bhagwan Din v. Gir Harsaroop .

7. Very recently, a similar question arose under Section 44, Madras Hindu Religious Endowments Act, which is the very Act with which we are, in this appeal, concerned. Where some property is charged with the payment of an amount for performing certain services in a temple, the trustee may file an application before the Court, which for this purpose is the District Court, and the Court may pass an order directing the person in possession of the property to pay the amount which it may find is charged on the property in favour of the temple and this decision may be enforced as if it were a decree of Court. The District Judge passed an order on an application filed under Section 44 in favour of the temple trustee. The facts were these: One Muruga Padayachi left a will charging some of his properties with payment of certain sums for a temple. He died leaving an adopted son and that son denied the validity of the will alleging that at the time of his death the testator was a member of an undivided family and that therefore the will was in. valid. In the application under Section 44 of the Act, the District Judge, found in favour of the temple. The respondent who was the ' testator's adopted son acted in accordance with this decision for some time and then refused to pay over the income of the property to the trustee having made up his mind that he would not recognise the settlement or the will of his father as a valid one The Chief Justice and Lakshmana Rao J., held that the order under Section 44 of the Act did not operate as res judicata, Amirthalinga Padayachi v. Chandrasekhara Padayachi A.I.R. 1945 Mad. 242. The learned Judges pointed out that the case before them did not fall within the earlier decision of the Judicial Committee in: Ramchandra Rao v. Ramchandra Rao A.I.R. 1922 P.C. 80 and that it was governed by the later decision in 15 Luck, l. Then they extracted the following passage from the judgment in the later case in Bhagwan Din v. Gir Harsaroop .

The decision of the District Judge under the Act of 1920--a decision from which by Section 12 there is no appeal--is a decision in a summary proceeding which is not a suit nor of the same character as a suit; that it has not been made final by any provision in the Act; and that the doctrine of res judicata does not apply so as to bar a regular suit even in the case of a person who was a party to the proceedings under the Act.

8. Then they proceeded to say this:

The position under the Madras Hindu Religious Endowments Act is exactly the same. There is no appeal from an order under Section 44, but the Act does not say that the order is final.

9. Before proceeding further we may point out that in Sri Kothandaramaswami Temple v. Veezhinatha Aiyar : AIR1945Mad101 this Court held that Section 44 of the Act does not preclude a trustee from filing a suit in the ordinary civil Court for recovery of sums charged in favour of a temple over properties in the possession of another person, and that the remedy provided by Section 44 is not the only remedy open. The question in that case was whether the trustee of an institution is bound to proceed under Section 44 by a petition to the Court in order to recover the amount which is payable for certain services in a temple charged on the property in the possession of another. This Court pointed out that the jurisdiction of the Civil Court was not expressly ousted either by express language or by necessary implication and that the remedy provided by Section 44 is an additional right given by the Act and that the common law right of proceeding by a suit was not taken away. If without proceeding under Section 84, Clause (1) of the Act the appellants had in the first instance filed a suit for a declaration that they are the hereditary trustees, the Civil Courts would be bound to entertain the suit. The fact that there is a remedy provided by way of an application to the Endowments Board under Section 84(1) would not stand in their way. In Appeal No. 121 of 1942 (unreported) this Court had to consider this question at some length. While pointing out the various anomalies created by the Act on the question, this Court held that a suit would lie if there was no proceeding under Section 84(1).

10. We are here directly concerned with the question whether when there is an application to the Board under Section 84(1) followed by an application under Section 84(2), to the District Court and there is a decision by the District Court, the decision of the District Court is binding on the parties in a subsequent suit. In other words the question is whether proceedings under Section 84(2) are summary in nature so as to attract the application of the rule laid by the Judicial Committee in Bhagwan Din v. Gir Harsaroop . For the appellants, Mr. Raghava Rao contends that there is no appeal against the order of the District Judge under Section 84(2) and that that has been decided by the Full Bench of this Court in Rajagopala Chettiar v. H.R.E. Board Madras : AIR1934Mad103 which was followed later by Wadsworth and Patanjali Sastri JJ. in Bashyakar v. H.R.E. Board, Madras A.I.R. Mad. 510. He contends further that there is no statutory finality attached by the Legislature to the decision of the District Judge under Section 84(2). He draws our attention to the wording of the section which says that subject to the decision of the District Judge the order of the Board is final. He also points out the difference in the language employed by the Legislature in the various sections of this very Act. In one set of sections, the language used is that the order of the Court is final and in another set of sections the language used is that the order of the Board or the Committee is final subject to the decision by the Court. If no finality is attached to the order of the District Judge, then, it is said that the case resembles Bhagwan Din v. Gir Harsaroop rather than Ramchandra Rao v. Ramchandra Rao A.I.R. 1922 P.C. 80. On the other hand Mr. K. Subba Rao, the learned advocate for the respondents, contends that even if the matter had rested with a decision under Section 84(1) by the Board, the parties would be bound and that it would not be open to the appellants to raise this question in the present suit. He next contends that the matter having been taken to the Court under Section 84(2) and there having been a decision by the District Court, the doctrine of res judicata applies as the decision set up in bar is that of an ordinary civil Court. He urges that a proceeding under Section 84(2), in the District Court though started as an original-petition has all the characteristics of a suit. Evidence has to be taken and the Court cannot refuse to take evidence. The question has to be decided on the materials placed before the Court and the Court is not dealing with the matter by way of appeal from the order of the Board but in dealing with an original proceeding started in that Court. He further contends that despite the difference in the language used in the various sections of the Act relied on by the appellants, the effect is the same and that the finality attached by the Legislature under Section 84(2)(sic. (1)), is really attached to the decision of the District Court as well. The further contention is that even if the finality attached by the Legislature is only to the order of the Board and not to the decision of the District Court, the decision would nevertheless operate as res judicata as the proceeding is one in the nature of a suit as contemplated by the Judicial Committee in Bhagwan Din v. Gir Harsaroop . It is urged that the rights of the parties have been investigated on evidence taken and that the position is therefore analogous to that which arose in Ramchandra Rao v. Ramchandra Rao A.I.R. 1922 P.C. 80. Dealing with Bhagwan Din v. Gir Harsaroop , it is pointed out that there are very many indications in that Act, which show that the whole proceeding is of a very summary nature, that it is not even obligatory on the Court dealing with an application under Act 14 [XIV] of 1920 to take evidence and that further it is expressly provided in the Act that there was to be no right of appeal. We have now to decide which of these contentions is right. If the matter had rested with an order of the Board under Section 84(1) we should have hesitated very much before agreeing with the learned advocate for the respondent that that order would preclude the determination of the question raised in this appeal. The Board is a special tribunal constituted by the local Legislature. It is given jurisdiction only in matters which are expressly provided for by the Act. One of the matters on which jurisdiction is given to the Board is to decide whether an institution is a math or a temple as defined in the Act or whether a temple is an excepted temple. Leaving out the other questions with which we are not concerned, the Board has jurisdiction to decide whether a temple is an excepted temple or not. No doubt in many cases, the decision of the question whether a temple is an excepted temple or not will depend upon the question whether the trustee of the temple is a hereditary trustee where there is a single trustee and, in cases, where there are more trustees than one whether the trusteeship of all is hereditary. But the Board is not empowered to decide the question whether a person is a hereditary trustee of a temple or not. That may no doubt arise incidentally as one of the questions to be decided or it may in some cases be even the main question to be decided in order to determine whether a temple is an excepted temple or not. But nevertheless the Board being a special tribunal created by the Legislature with a limited jurisdiction, the Board's decision on those matters only over which the Board is given exclusive jurisdiction will operate as res judicata. It is true, as Mr. Subba Rao has pointed out, that where there is an order under Section 84(1) that a temple is or is not an excepted temple, it is not open to the parties to file a civil suit to challenge the decision of the Board but must proceed under Section 84(2): see Ishwarananda Bharathiswami v. Commissioner, H.R.E. Board, Madras A.I.R. 1931 Mad. 574 and Iswarananda Bahrathiswami v. Commissioner, H.R.E. Board, Madras : AIR1932Mad593 . But that is far from saying that the ground of the decision or the finding on a question on which the decision of the Board is based is res judicata. Mr. Subba Rao relies on the decision of Wallis C.J. in Muthammal v. Secretary of State A.I.R. 1915 Mad. 106 in this connection but the authority of that decision is very much shaken as pointed out in the recent Full Bench judgment in Siva Prasad v. Narasimhamurthi A.I.R. 1940 Mad. 187. It is unnecessary to go further into this matter as we are of opinion that the order of the District Court under Section 84(2) operates as res judicata.

11. Before proceeding further, we must examine the provisions of the Charitable and Religious Trusts Act, 14[XIV] of 1920, in order to understand the judgment of the Judicial Committee in Bhagwan Din v. Gir Harsaroop . As the preamble states, the Act was passed to provide facilities for obtaining information regarding trusts created for public purposes9f a charitable or religious nature, and in order to enable the trustees of the trust to obtain directions of the Court on certain matters. The first part of the Act provides for enabling parties to get information regarding the trusts created for public purposes of a charitable or religious nature. Under Section 3 a person having an interest in such a trust may apply by petition to the Court for obtaining any of the directions mentioned in Sub-clauses (1) and (2), i.e., directing the trustees to furnish particulars as to the nature and object of the trust and of the value, condition, management and application of the subject-matter of the trust and of the income belonging to the trust and also directing the accounts of the trust to be examined. The petition is to be verified in the manner provided by the Civil Procedure Code for verifying plaints. On receiving such an application, the Court may take such evidence and may make such enquiry as it may consider necessary and if after taking such evidence and making such enquiry, the Court is of opinion that the petitioner has an interest in the trust, it shall fix a date for hearing and cause notices to be served on the opposite side. On the day fixed for the hearing of the petition, the Court shall proceed to hear the petitioner, and the trustee, if he appears and any other person who has appeared in consequence of the notice or whom it considers ought to be heard and shall make such further enquiries, if any as it thinks fit. The trustee may, and if so required by the Court, shall at the time of the first hearing present a written statement. And Sub-clause (3) of Section 5 says that if any person appears at the hearing of the petition and either denies the existence of the trust or denies that it is a trust to which the Act applies and undertakes to institute within three months a suit for a declaration to that effect, the Court shall stay the proceedings. If no such undertaking is given or if no suit is instituted, the Court shall itself decide the question and on completion of the enquiry, the Court may either dismiss the petition or pass such other order as it thinks fit. The order that it may pass is confined necessarily to the reliefs mentioned in Section 3. If the trustee fails to comply with the directions given under Section 5 the consequence is that in a suit which may be filed under Section 92, Civil P.C., his failure to comply with the order shall be deemed to be a breach of trust. Section 12 provides that no appeal shall lie from any order passed under the Act. In Bhagwan Din v. Gir Harsaroop , the District Judge was moved by a petition under Section 3 of the Act and the District Judge made an order under Section 5, Clause (i) holding that the institution was a public religious trust. The order under Section 5(4) was not complied with by the trustee. A suit was filed under Section 92, Civil P.C., for removing the trustee and for the other reliefs and the question was whether the decision of the District Judge under Section 5(4) of Act 14[XIV] of 1920 that the institution was a public religious trust operated as res judicata. The Judicial Committee held that orders under Act 14[XIV] of 1920 were of a summary nature and that therefore the decision did not operate as res judicata. They pointed out, among other things, that under Section 12 no appeal lay against the order, that there was no finality expressly attached to the order by the Act itself, that the Court was bound to stay the hearing of the petition if the party interested undertook to file a suit as provided under Section s, and reference was also made to the provisions of the Act that the District Judge was to make such enquiry as he thought fit. In the opinion of the Judicial Committee all these indicated that the order was a summary one. The following passage gives the basis of the judgment:

It is readily intelligible that the District Judge should be required to stay proceedings under the Act in any case in which the person against whom they have been taken is willing to bring a suit. But it would be both drastic and anomalous to provide that a person in possession, if not willing to bring a suit to establish his own title affirmatively must be content to abide without right of appeal by the decision of the District Judge in a proceeding of this character. The terms of Section 6 of the Act are intended, in their Lordships' view to define the consequences of such an order as was made in this case by the District Judge on 1st October 1930, but the words 'if a trustee without reasonable excuse fails to comply' cannot be read to exclude a contention in a regular suit that the plaintiff is not a trustee or to prevent a similar contention being raised by a defendant to a snit under Section 92 of the Code.

12. In another passage, the Judicial Committee said this:

The decision of the District Judge under the Act of 1920--a decision from which by Section 12 there is no appeal--is a decision in a summary proceeding which is not a suit nor of the same character as a suit; that it has not been made final by any provision in the Act; and that the doctrine of res judicata does not apply so as to bar a regular suit even in the case of a person who was a party to the proceedings under the Act. The existence of a public trust is the foundation of the proceedings authorised by Section 3 of the Act; prima facie while the District Judge may have to come to a decision upon this point in order to satisfy himself on the question of his own jurisdiction he cannot by an erroneous decision thereon give himself jurisdiction.

13. The provision that on an undertaking that a suit would be filed, the District Court hearing the petition under the Act was bound to stay the hearing of the petition was taken as a strong indication that the whole proceeding was a summary one. The declared object of the Legislature in passing the Act was only to provide facilities for the obtaining of information in the case of such trusts. The prohibition of an appeal and the absence of any provision attaching finality to the decision were all considered as material in coming to the conclusion that the whole proceeding was a summary one.

14. Turning to the decision in Ramchandra Rao v. Ramchandra Rao A.I.R. 1922 P.C. 80 when the stage of a reference under Section 31 (now Section 30) is reached, there are two or three rival claimants all claiming title to the property which was acquired and therefore to the amount which was adjudged as a fair compensation by the Collector. As pointed out by the Judicial Committee in that case, substantial rights of the parties to properties acquired are determined by the proceeding under Section 31 on a reference made by the Collector. In the opinion of the Board, there was also an appeal against the order which was passed by the High Court on appeal from the decision of the District Judge or Subordinate Judge.

15. In a proceeding under Section 84(2), Madras Hindu Religious Endowments Act, the District Court is bound to take evidence and cannot act on the evidence recorded by the Board. The Court is to act upon the materials placed before it by the parties. In Iswarananda Bahrathiswami v. Commissioner, H.R.E. Board, Madras : AIR1932Mad593 Reilly and Ananthakrishna Aiyar JJ. dealt with this question and pointed out that in an application under Section 84, Clause (2) the Court is not an appellate or revisional tribunal, that the application is one to which the ordinary procedure of the Code of Civil Procedure applies and that the parties have a right to produce such evidence as they think fit. The question has been very elaborately dealt with by Ananthakrishna Aiyar J. As the learned Judge has pointed out, a proceeding under Section 84, Clause (2), has been characterised by a Full Bench of this Court as being analogous to a regular suit. In Damodaran v. Commissioner, H.R.E. Board, Madras A.I.R. 1930 Mad. 392 referring to an application under Section 84(2) the learned Judges said this: 'These applications are analogous to a regular suit filed by an unsuccessful claimant.'

16. We are of opinion that proceeding under Section 84(2) cannot be said to be a summary proceeding even though there may be no right of appeal. The question whether there is a right of appeal against an order under Section 84(2) is a very vexed question on which there is much room for controversy. The question was considered by a Full Bench of this Court in Rajagopala Chettiar v. H.R.E. Board Madras : AIR1934Mad103 but the entire reasoning of the Judges who held that there was no right of appeal is based upon the consideration that a right of appeal must be given by a statute, that the Civil Procedure Code provides only for appeals against decrees and against certain orders which are expressly stated to be appealable, that a decree is one passed in a suit, that a suit commences with a plaint, that a proceeding under Section 84(2) does not commence with a plaint as defined in the Code and that therefore the proceeding is not a suit and the decision not a decree and hence not appealable. The definition of a decree which the learned Judges took as the basis of their judgment included under the old Civil Procedure Code a decision of a suit or of an appeal. In the Code of 1908 the expression 'or an appeal' was omitted. The learned Judges were pressed with the decision of the Judicial Committee in Ramchandra Rao v. Ramchandra Rao A.I.R. 1922 P.C. 80 where the Judicial Committee held that a decision of the High Court passed in an appeal from a decision given in an original proceeding under the Land Acquisition Act (and not in a suit) was held to be appealable. Madhavan Nair J. pointed out that the words 'the decision in an appeal' might well be taken to be a decree under the old Code and that it may include a decision in an appeal against an order of the first Court passed in an original petition. His view was that the trial Court's decision may be in suits and in other original proceedings. Against both there may be appeals. Decisions of the appellate Courts in both the cases would be decrees under the definition contained in the old Code. The decision in Ramchandra Rao v. Ramchandra Rao A.I.R. 1922 P.C. 80 related to a proceeding under the old Code. Therefore, the decision of the High Court which was passed in appeal was a decree as defined under the old Code and therefore appealable and the learned Judges pointed out that the decision of the Privy Council in Ramchandra Rao v. Ramchandra Rao A.I.R. 1922 P.C. 80 must be understood to deal only with the case of appealability of a decree of the High Court passed in an appeal and not with the question whether the orders of the trial Court were appealable or not. This reasoning, it would be seen, would lead to this conclusion that if an appellate decision was given in an appeal against the order of the trial Court in a proceeding which was not a suit, it would not be appealable under the new Civil Procedure Code as it no longer contains the provision that a decision passed on an appeal is also a decree. This question came up again before the Judicial Committee in Mt. Bhagwati v. Mt. Ramkali . There it was an appellate decision against an order of the lower Court in a proceeding which was not a suit and it was passed after the Civil Procedure Code of 1908. The Judicial Committee held that an appeal lay in such a case also. In Chikkanna Chettiar v. Perumal Chettiar A.I.R. 1940 Mad. 474 the question arose whether an appeal lies against an order of the Subordinate Judge on a reference under Section 30, Land Acquisition Act. This directly raised the question whether even against an order passed on an original petition which was not a suit an appeal would lie even though there was no express right of appeal given by the Legislature. The Full Bench consisting of Sir Lionel Leach C.J., King and Krishnaswami Ayyangar JJ. held that an appeal lay against an order passed on a reference under Section 30. The learned Chief Justice delivering the judgment of the Full Bench pointed out that the reasoning of Madhavan Nair J. in Rajagopala Chettiar v. H.R.E. Board Madras : AIR1934Mad103 to the effect that in Ramchandra Rao v. Ramchandra Rao A.I.R. 1922 P.C. 80 the Privy Council were, only considering whether the order of the High Court on appeal constituted a decree and hence appealable was erroneous in view of the pronouncement of the Judicial Committee in the later case in Mt. Bhagwati v. Mt. Ramkali , we find the following:

In my opinion all controversy is set at rest by the judgment of the Privy Council in Mt. Bhagwati v. Mt. Ramkali . The opinion expressed in Ramchandra Rao v. Ramchandra Rao A.I.R. 1922 P.C. 80 was there re-affirmed, notwithstanding the alteration made in the present Code in the definition of the word 'decree.' In the light of, the recent pronouncement of the Privy Council Ramchandra Rao v. Ramchandra Rao A.I.R. 1922 P.C. 80 must be taken to decide that an order not merely the order on appeal, but an order determining a reference under Section 18 or under Section 30 is to be regarded as a decree and not as an award. It follows that the interpretation of Ramchandra Rao v. Ramchandra Rao A.I.R. 1922 P.C. 80 given by the Full Bench in Rajagopala Chettiar v. H.R.E. Board Madras : AIR1934Mad103 can no longer be regarded as being authoritative.

17. Dealing with the argument that there was no right of appeal expressly provided, the learned Judges said this on page 807:

The Subordinate Judge who is appointed under Section 3(d), Land Acquisition Act to decide a dispute with regard to the allocation of compensation money does not constitute a Court of Record but admittedly he does constitute a civil Court and on the strength of the decision in National Telephone Co. Ltd. v. His Majesty's Post-Master General 1913 A.C. 546 it might reasonably be argued that the proceedings before him are governed by the provisions of the Code of Civil Procedure. Support for this argument is to be obtained from the judgment of the Privy Council in Secretary of State v. Chillikani Rama Rao A.I.R. 1916 P.C. 21. There a claimant whose claim was rejected by the forest settlement officer appealed to the District Court under the Madras Forest Act, 1882, which makes no provision for a second appeal and consequently it was contended that there was no right of further appeal. Their Lordships refused to accept this contention, holding that when proceedings of this character reach the District Court that Court is appealed to as one of the ordinary Courts of the country with regard to whose procedure, orders and decrees the ordinary rules of the Code of Civil Procedure apply. It is not going much further to say that the same principle applies when an Act like the Land Acquisition Act provides for reference of a dispute to the District Court and gives the Provincial Government power to substitute for the District Judge another Judicial Officer who admittedly decides the dispute as a civil Court. The argument that there is here a right of appeal is made all the stronger by the provisions of Sections 53 and 54 of the Act. Any controversy, however, is settled by the decisions of the Privy Council in Ramchandra Rao v. Ramchandra Rao A.I.R. 1922 P.C. 80 and Mt. Bhagwati v. Mt. Ramkali .

18. The learned Judges, therefore, held that even though the two decisions referred to dealt with the right of appeal against an appellate decision, they are authorities for the position that an order passed by the trial Court on a reference made by the Collector under the Land Acquisition Act was also appealable. We are very much impressed with the argument that the decision of the Full Bench in Chikkanna Chettiar v. Perumal Chettiar A.I.R. 1940 Mad. 474 holding that an appeal lies against the decision of the trial Court in an original proceeding under the Land Acquisition Act would apply equally to an order under Section 84(2) of this Act. That the proceeding under Section 84(2) of the Act is commenced by an application and not by a plaint is the main reason why an appeal was refused against an order passed under that section. Under the Land Acquisition Act substantial rights of the parties to property concerned are determined. The proceedings under that Act are not started by a plaint but only by an order of reference made by the Collector. Still, the order has been held to be an appealable order. When the matter comes before the District Court under Section 84(2), Hindu Religious Endowments Act very substantial questions arise for consideration whether an institution is a math or a temple as defined under the Act and whether the temple is an excepted temple. The latter question involves very often the rights of a particular claimant as a hereditary trustee. If for instance an institution is held to be a temple or math as defined under the Act, it is no longer the private property of the claimant and substantial and large interests as to property will be affected by the decision. Similarly, the public will suffer in the event of a decision the other way. This being so, the decision of the Court under Section 84(2) would, on the reasoning of the Judicial Committee in Ramchandra Rao v. Ramchandra Rao A.I.R. 1922 P.C. 80 and reiterated in Mt. Bhagwati v. Mt. Ramkali and, on the interpretation placed on these two decisions in Chikkanna Chettiar v. Perumal Chettiar A.I.R. 1940 Mad. 474 be subject to an appeal. If that is so, it cannot possibly be argued that a proceeding under Section 84(2) is only a summary proceeding falling under the category of cases mentioned in and dealt with by the Judicial Committee in Bhagwan Din v. Gir Harsaroop : AIR1940Mad7 . Mr. Raghava Rao, the learned advocate for the appellant, has brought to our notice a later decision of this Court in 1. L. R. (1941) Mad. 559s where this Court following the decision in Rajagopala Chettiar v. H.R.E. Board Madras : AIR1934Mad103 held that no appeal lies against an order passed under Section 84(2). We need not go further into the question of appealability of an order under Section 84(2) though we might say that there is great force in the argument that after the Full Bench decision in Chikkanna Chettiar v. Perumal Chettiar A.I.R. 1940 Mad. 474 the decision in the earlier case in Rajagopala Chettiar v. H.R.E. Board Madras : AIR1934Mad103 cannot be considered as good law. As we said before, the question of res judicata does not depend upon the appealability of the decision which is put forward as constituting res judicata. That question comes in incidentally to see if the proceeding under Section 84(2) is of a summary nature so as to attract the application of the decision of the Judicial Committee in Bhagwan Din v. Gir Harsaroop . Apart from the appealability or otherwise, we have the fact that the parties are entitled to adduce evidence in. the petition that the Court is bound to take such evidence and to act upon the materials placed before it after giving due weight to the order of the Board which it is called upon to modify or set aside. Substantial rights of parties to property and office are determined and we cannot, therefore, accept the argument of Mr. Raghava Rao that the case falls within the decision of the Judicial Committee in Bhagwan Din v. Gir Harsaroop . As was pointed out by the Full Bench in Damodaran v. Commissioner, H.R.E. Board, Madras A.I.R. 1930 Mad. 392 already referred to, a proceeding under Section 84(2) is analogous to a suit and the decision is one given in proceedings which are in the nature of a suit. We are in perfect agreement with that observation of the Full Bench in Damodaran v. Commissioner, H.R.E. Board, Madras A.I.R. 1930 Mad. 392.

19. There is another vexed question whether finality has been attached by the Legislature to the order passed by the District Court under Section 84(2). We cannot do better than refer to the different views expressed by Madhavan Nair and Jackson JJ. in Rajagopala Chettiar v. H.R.E. Board Madras : AIR1934Mad103 . The question has been very elaborately dealt with and we need only refer to the judgment of Madhavan Nair J. where the learned Judge has collected the various sections in which different language is used by the Legislature. Clause (4) of Section 53 says referring to the removal and dismissal of the trustee by the committee that:

The order of the committee under the section shall, when no appeal is preferred or application made under Sub-section (3) be final; and when such appeal is preferred or application is made the order of the Board or the Court, as the case may be, shall be final.

20. Similar language is used in Section 76 where it says that the order of the Board or the committee under Sub-section (1) when no application is made under Sub-section (2) and the order of the Court when such application is made shall be final. Under Section 77, Clause (2) and Section 84, Clause (2) the finality is declared and attached to the order of the Board subject to the result of the application which may be made to the Court. Section 77, Clause (2) says:

Any party affected by an order under Sub-section (1) may within such time as may be prescribed apply to the Court to modify or set aside such order but, subject to the result of such application, the order of the Board shall be final.

21. Similarly Section 84(2) says that:

Any person 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.

22. Referring to this divergence in the language, Madhavan Nair J. stated his conclusion thus:

However it may be stated that, though it is difficult to account satisfactorily for the difference in the language used in the two sets of sections, it is not clear despite the close proximity of the two Sections 76 and 77 that the Legislature by Rising different language really intended to produce a different effect. The expression 'subject to the result of such application (to the Court) the order of the Board shall be final' may, I think, without doing any violence to the language, be interpreted to mean that the finality of the order of the Board is only subject to the result of an application to the Court and to nothing further. If this view is correct then the orders of the District Court in Sections 77(2) and 84(2) become as final as the orders of the Court in Sections 53(4) and 76(3).

23. We are inclined to accept this view. If the order of the Board passed under Section 84(1) is final subject only to the result of the application to the Court under Section 84(2), it is difficult to say that the finality does not apply to the order of the District Court. Perhaps, one reason why the finality is not expressly attached to the order of the District Court is that that order may be carried in appeal or in revision; that the finality must be attached not to the decision of the District Court under Section 84(2) but to the decision of an appellate or revisional authority.

24. Though the question is not free from difficulty, we have come to the conclusion that a proceeding under Section 84(2) of the Act is in the nature of a suit and that the decision of the District Judge operates as res judicata in a subsequent proceeding between the same parties. In this case the District Court decided that the appellants were not hereditary trustees at all. That is the basis of the decision of the District Court. So far as the finding of a civil Court is concerned, the decision on a question which is substantially in issue also operates as res judicata. We need not deal with the question whether if the matter had stopped with an order of the Board under Section 84(1) the appellants would have been precluded from agitating that question in this suit. It is not necessary for us to go into that question as it was the subject of an enquiry by the District Court followed by a decision by that Court.

25. As we said in the opening, we are very much impressed by the fact that for four generations, as the documentary evidence shows, the eldest member in the appellants' family has been acting as trustee. On one or two occasions some other persons in the village were referred to as trustees, but there is no gainsaying that the appellants' family have been acting as trustees. And the documentary evidence establishes that for four generations the members of the appellants' family have been acting as trustees. If the decision of the District Court under Section 84(2) had not stood in the way, we would have had no hesitation in saying that the appellants have established that they are the hereditary trustees of the suit temple. It is unnecessary to deal with the evidence on the question as we have held that the appellants are not entitled to reagitate this question.

26. Before concluding this judgment, we must notice another point raised by Mr. Raghava Rao. He urges that the District Judge decided in O.P. No. 96 of 1942 that the evidence only pointed to the conclusion that the members of the appellants' family were acting as trustees only in respect of the properties endowed by their family to the temple and that that by itself does not constitute the appellants hereditary trustees of the temple itself. He urges that his clients are the special trustees of the properties endowed by their family. We agree with this contention. The District Judge has held that for several generations the appellants' family were acting as the trustees of the properties endowed by their family as inam to the temple. In fact the District Judge relied on the expression 'Inam trustee' occurring in the various documents to say that the members of this family were not acting as the general trustees of the temple but only as trustees of the inam. The view taken by the District Judge certainly establishes that the members of the appellants' family are the special trustees in respect of the properties endowed by their family. Their position is that of Kattalai trustees. This would enable them to retain possession of the properties endowed by their family though they would be bound to devote the income of those properties for the purposes for which they were endowed by the family. We mention this so that it should not be understood that our judgment has the effect of depriving the appellants even of the properties endowed by them. They are not the hereditary general trustees of the temple and that is the only question that we decide. This will be incorporated in the decree.

27. Subject to the above modification the appeal is dismissed. But we make no order as to costs either here or in the Court below as we have affirmed the decree of the lower Court not on the grounds on which the lower Court has rested its judgment but on what happened subsequent to the decision of the lower Court. We therefore direct each party to bear his own costs both here and in the Court below.

28. Item 6 was endowed by the ancestors of the appellants under Ex. P-1 of the year 1884. Items 2 and 3 were purchased at a revenue sale in the name of Kotayya, an ancestor of the appellants. This transaction is of the year 1886. Item 5 was purchased under EX. P-12 and the price was paid by Arikepudi Nagayya, Lingayya and Adeyya. Of these Arikepudi Nagayya and Lingayya are members of the appellants' family. We hold that items 2, 3, 5 and 6 are the subject of specific trust of which the appellants' family are the hereditary special trustees. The decree will contain a declaration that items 2, 3, 5 and 6 are specific trusts of which the appellants are the hereditary special trustees and that they are not liable to be dispossessed of these items by the general trustee except in special proceedings to be taken for that purpose if there are grounds for doing the same.

29. Items 1 and 4 form part of the general endowment of the temple and the decree of the lower Court will stand as regards those items.


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