1. This suit raises certain important questions as to the power of the Madras Hindu Religious Endowments Board to start notification proceedings under Chap. 6-A of Madras Act 2 of 1927, as amended by Act 12 of 1935, in cases where schemes have been settled by the Civil Courts in suits to which the Board was a party. The plaintiff in this case is the Zamorin of Calicut, who is one of the trustees of the famous temple of Guruvayur situated in South Malabar. Defendant 1 is. the Hindu Religious Endowments Board and defendant 2, Malliserri Nambudiri, is a joint trustee along with the plaintiff. The plaintiff is the chief trustee and is in charge of the affairs of the temple. This suit is filed to have it declared that the proceedings which defendant 1 started under Section 65-A(1) of Madras Act 2 of 1927, as amended by Madras Act 12 of 1935, are without jurisdiction and void and that the Board has no right to go on with the enquiry. The chief contesting defendant is defendant 1. Defendant 2 supports the plaintiff's case.
2. The plaintiff's case may be briefly stated thus: The Zamorin of Calicut and his predecessors have been the hereditary trustees of the suit temple and of various other temples situated in that part of the country. The Court of Wards were in sole management of the temple between the years 1914 and 1927. In 1927, the Court of Wards handed back to the then Zamorin the management of the suit temple. After the Madras Hindu Religious Endowments Act was passed, a scheme was framed by the Board under Sections 62 and 63 of the Act on 3rd November 1928, by which the Zamorin was constituted the sole trustee. Thereupon, defendant 2 filed C.S. No. 1 of 1929 on the file of the District Court of South Malabar to have the scheme modified; certain worshippers of the temple filed another suit, C.S. No. 2 of 1929, for the same purpose; and the two suits were tried and heard together. In a common judgment, the District Court of South Malabar framed a scheme; the matter was taken up on appeal, A.S. Nos. 211 of 1930 and 212 of 1930 on the file of this Court, and by its judgment dated 218t November 1930 this Court held that plaintiff and defendant 2 were joint trustees and modified the District Judge's scheme in important matters. In particular this Court gave the right of appointing a manager for the suit temple to the trustees of the temple and provided for the appointment of a cashier.
3. Not content with the scheme framed by the High Court, a suit was filed by certain worshippers in O.S. No. 1 of 1933 on the file of the District Court of South Malabar making the plaintiff, defendant 1 and defendant 2 all defendants. The suit was contested by all of them; in particular defendant 1 filed a written statement and took a leading part in the trial of the suit, and the District Court after considering all the circumstances of the case and having considered the various pleas and arguments and the suggestions put forward by the various parties framed a scheme by its final decree dated 10th September 1938. All the parties acquiesced in the said judgment, filed no appeal and allowed the judgment to become conclusive. Having allowed the District Judge's judgment to become final defendant 1 Board started notification proceedings by its notice dated 19th December 1938 issued under Section 65-A(1) of the Act. The various reasons given in the notice issued by the Board under the above Section are not available to the Board for the reason that most of them were actually put forward by the Board in the various litigations to which it was a party and the Courts adjudicated upon them after hearing the Board, rejecting some of those contentions. Therefore the Board is precluded from relying upon those very grounds as the basis for starting notification proceedings under Chap. 6-A of the Act. Reasons 1, 3, 5 and 6 mentioned in the notice were adjudicated upon by the Civil Courts in the litigations to which the Board was a party and the other reasons 2, 4 and 7 were never even mentioned by the Board before the Civil Courts for the obvious reason that there is absolutely no substance in them. No sort of mismanagement is even alleged against the present trustees and not one of the reasons mentioned in the notice refers to anything that transpired after the decree of the High Court passed in November 1930 or of the District Court passed in September 1938. Without giving a fair trial to the scheme framed by the District Court in, the suit to which defendant 1 was a party and without seeing whether the scheme would work well or not, the Board has no right to start proceedings which is a deliberate attempt to set at naught the findings of the High Court and of the District Court in suits to which it was a party and this is a contrivance to get behind the decrees and circumvent the decision of the Civil Courts. In any event, the Board is not entitled to rely upon any of the grounds which were adjudicated upon adversely to it by the Civil Courts.
4. The plaintiff filed objections before the Board and the Board consisting of three members, before whom it comes on in the first instance as provided in Section 65-A(4), conceded that nothing had transpired after the decrees abovementioned and yet overruled the preliminary objections put forward by the plaintiff and directed the parties to adduce evidence. The plaintiff comes forward at this stage with this suit and asks for the above and other reasons stated in the plaint that he may be given a decree declaring that the notification proceedings started by the first defendant Board under Chap. 6-A of the Act by its notice dated 19th December 1938 in the matter of the suit temple are without jurisdiction and void and that the Board has no right to go on with the enquiry regarding the various reasons alleged in the said notice. In the alternative, he asks for a decree that in any event the Board has no right to enquire into the reasons 1, 3, 5 and 6 set out in the notice which were duly considered and rejected by the Civil Courts and also for a declaration that in the circumstances of this case, the action of the Board is capricious, biassed, unwarranted and that it is absolutety invalid. He aska for an injunction restraining defendant 1 from proceeding with the enquiry under Chap. 6-A of the Act.
5. Defendant 1 admits almost all the allegations of fact mentioned in the plaint, particularly in paras. 1 to 7 of the plaint. The defence of the Board is that it has not acquiesced in the decision given by the District Court of South Malabar in O.S. No. 1 of 1933. It states that various attempts were made to have the defects rectified by a proper modification of the High Court scheme, which it says was found to be entirely unsatisfactory, that the public filed O.S. No. 1 of 1933 in the District Court of South Malabar to have the scheme modified and that defendant 1 having found that a proper modification with effective control was not possible, allowed the litigation in O.S. No. 1 of 1933 to take its own course from 1933 to 1938 (para. 3). It is. also stated that in the interests of the-proper administration of the temple, proceedings under Section 65-A of the Act had to be resorted to as the only remedy available since the High Court scheme as modified by the District Court in O.S. No. 1 of 1933. had not effected the necessary changes for the proper administration of the templa (para. 4). It further states that it is the primary consideration of the Board to enhance the efficiency of the management as much as possible by instituting proceedings, under Section 65-A. It is alleged that in this case the Civil Courts, confined to the pleadings-before them, have come to a conclusion, which the Board is convinced is not conducive to the proper and efficient management of the institution (para. 5). Therefore, the Board states that it had no option except to proceed under Chap. 6-A because-the management ordered by the Civil Court is, in its view, against the best interests of the institution (para. 7).
6. The Board further denies that it has no jurisdiction to start proceedings under Section 65-A and states that it acted bona fide and in the best interests of the temple. In reply to the plaint allegations that the Board has no right to put forward the very grounds decided against it by the Civil Courts, the Board states that it has full power to go into evidence on every ground which it considers necessary under the new Chap. 6-A, which it says was specially framed empowering the Board to secure effective control of the temple (para. 10). Finally, it sums up the whole position in para. 11 by stating
that the procedure under Section 65-A is the only remedy known to law in order effectively to safeguard the best interests of the temple and its endowments.
7. Documents evidencing the various proceedings in the District Court and the High Court are exhibited as also the notice issued by the Board and the objection statements filed by the plaintiff. Two questions arise in this case. One is whether the Board has the right to start proceedings under Chap. 6-A when the Civil Courts framed a scheme for the management of the temple in a suit to which the Board was party after considering the contentions of the Board and the suggestions made by it for the best administration of the temple at any rate, without giving that scheme a fair trial. The other question is whether in a proceeding under Chap. 6-A the Board is entitled to urge the very questions which were specifically decided against it by the Civil Courts. I propose to confine my judgment to a case where the Board is a party to the litigation in which the scheme is framed by a Civil Court.
8. If a decree is passed by Civil Courts framing a particular scheme for the management of the temple in a suit to which the Board is a party, is it open to the Board to start proceedings under Section 65-A at all? Can it do so in any event without giving that scheme a fair trial? Is it open to the Board to say, as it does in para. 7 of its written statement that it has the right to proceed under Chap. 6-A for the sole reason that the management ordered by the Civil Court is, in its view, against the best interests of the institution? Is it open to say as it does in para. 5 that the Civil Courts were bound by the pleadings before them and that consequently the conclusion, which the Courts arrived at on the pleadings placed before them, may be ignored by the Board on the ground that it is convinced that the decision of the Civil Court is not conducive to the proper and efficient management of the institution? Can it say as it does in para. 3 that it felt that it was not possible to secure from Civil Courts a proper modification (of the High Court scheme) with effective control, and that therefore it allowed the proceedings in O.S. No. 1 of 1933 to take its own course? As regards the plea put forward in para. 3 of the written statement, I am of opinion that the Board has no right to assume that Civil Courts would not render justice and then urge it as a ground for its not taking part in the proceedings, to ignore the decree in the suit altogether and to issue notice under the new Chapter. One thing is clear that under the Act the Board is not yet constituted the actual trustee of all the temples in the land. It can get the control which the law gives it and nothing more. In cases of dispute, who is to decide the question except the Courts? If the Board thinks that it cannot get from the Court 'a proper modification with effective control,' it can only be for the reason that it wants a control which it is not authorized by law to get. No litigant, no statutory body, can flout the decisions of the Court in suits to which they were parties by saying 'I cannot get from the Court the power that I want. So, I shall sit quiet, allow the Court to spend years and years to decide the suit. I shall then ignore the decision' and start proceedings under the new Chapter. It is equally not open to the Board to say 'the Civil Courts are bound by pleadings, So I can ignore their decisions confined as they are to the pleadings in the suit' and this in cases where the Board is a party. Whoever prevented the Board from putting forward in its pleading all its view points? What the Board evidently wants is a right to have matters decided without any regard to the pleadings in the case. Is it open to the Board to say that the Civil Court was wrong and that it can straightway start proceedings under Chap. 6-A and nullify the effect of the Civil Court's judgment? The answer to this question is not open to any serious doubt. If the Board was actually a party to a suit, put forward various suggestions and the same were considered by the Court and a decision rendered one way or the other, it is impossible to accept the contention that the Board which was at party to the suit and to the decree can start proceedings under Chap. 6-A. Opinions may differ as to whether a particular scheme is or is not better than another scheme which may be suggested by another party. When a scheme has been finally settled by the Court in the presence of the Board, it is not open to the Board to start proceedings under Chap. 6-A at any rate without giving that scheme an opportunity of working.
9. Before the Amending Act(Madras Act 12 of 1935), the position was this. In respect of excepted temples the Board may issue a notice to the trustee to show cause why a scheme should not be framed in any one of the cases mentioned in Section 62, viz. where the Board has reason to believe that there is mismanagement or that the trustee has improperly alienated trust property or when 20 worshippers apply to the Board stating that it is in the best interests of the institution that a scheme should be framed. If after an enquiry under Section 63 the Board finds mismanagement or an improper alienation of trust property, or agrees with the twenty worshippers that it is in the best interests of the temple to have a scheme framed, the Board may frame one. Then, provisions are made for a dissatisfied party to go before the Court to have the schema modified or set aside under Section 63(4) and the Court may modify or alter the Board's scheme. In cases where there is no suit under Section 63(4) the Board itself may, at any time, modify or cancel a scheme settled by it under Section 63(1). In cases where the scheme framed by the Board was taken to a Civil Court under Section 63(4) and a decree passed by the Court, if later events necessitate a change in that scheme, the change can be made by a suit filed for that purpose either by the Board or by the trustee or by the worshippers interested in the temple (Section 65). Even now as regards the trustee and the worshipper they can seek a change only by a suit filed under Section 65 of the Act. Under the Amending Act the Board is given the power to start notification proceedings under the new Chap. 6-A, while retaining Sections 63(4) and 65. The contention of the Board is that this power is an absolute power to start proceeding under the new chapter in every case including cases where schemes were settled by Civil Courts in suits to which it was a party. It further contends that where a scheme framed by the Civil Courts is in its view against the best interests of the institution it can proceed under the new Ch. 6-A even without giving that scheme a fair trial.
10. Dealing first with the latter contention, as far as I can see there is nothing in the 'Act of 1935 enabling the Board to set at naught the decrees of Civil Courts by taking proceedings under the new chapter on the ground that in its view the Court scheme is not in the best interests of the institution. If the scheme framed by the Court is given a fair trial and if, after working it for some time, defects are found in it, it may be that it is then open to the Board to file a suit under Section 65 or to start notification proceedings under the new chapter. The claim put forward in para. 7, i.e., the right to start proceedings under the new Chapter because in its view the decision of the Court did not come up to its expectations is to render nugatory the right of suit given under Section 63(4) and to bring the administration of justice by Civil Courts into contempt and ridicule. Proceedings under Section 6(4) will be reduced to a farce, because, in every case, immediately after the judgment is rendered by the Civil Court, notification proceedings can be started by the Board. Ch. 6-A does not, in my opinion, give such arbitrary and absolute powers to the Board. I am fortified in the view taken by me by what Venkataramana Rao and Newsam, JJ. say in their judgment in Ponnuman Dikshitar v. Board of Commissioners for the Hindu Religious Endowments Madras (1939) 26 A.I.R. Mad. 682. In that case a scheme was framed by the Board and modified by the District Court under Section 63(4) and an appeal was pending in the High Court. The appeal was filed by the trustee contending that the temple was not a public temple and that the scheme framed by the Court below was not a proper scheme. The Board was a party to the suit and the appeal; during all this time the scheme was suspended and did not function even for a short time. While the appeal was pending in the High Court, the Board started proceedings under Ch. 6-A to have the temple notified and an injunction was granted by a learned Judge of this Court restraining the Board from proceeding with the inquiry pending the appeal. A Letters Patent appeal was filed against the order of the learned Judge in the injunction application. This Letters Patent appeal and the main appeal against the decree of the lower Court were both heard by Venkataramana Rao and Newsam J.J. In the main appeal they decided that the temple was a public temple and that there was no reason to modify the scheme framed by the Court below. They therefore dismissed the appeal. In dealing with the proceedings started by the Board under Ch. 6-A of the Act, this is what they say at p. 645 of the report:
It seems to us very undesirable that the Board should have taken any steps in regard to the notification of this temple. The procedure in regard to notification ought not to be lightly resorted to, unless and until there is such serious mismanagement of the temple as would justify an ouster of the trustees in charge of a temple from their office. The scheme was framed in 1933 and proceedings relating to its modification were pending in the District Court and the scheme had not been given any fair trial. It could not possibly be said that the scheme was not worked satisfactorily by the trustees and that therefore in the interests of proper administration of the temple it was necessary for the Board to take the drastic step of having the temple notified. We trust and hope that the Board would drop all proceedings in the matter and allow the scheme as modified by the District Court and as modified by us to be given a fair trial and would give the trustees a fair opportunity to carry on the administration in accordance with, the scheme.
11. Adopting what the learned Judges say in the above passage, I hold that the procedure under Section 65-A cannot be resorted to unless there is gross mismanagement justifying restriction of the powers of the trustee and that at any rate without giving the scheme framed by the Court a fair trial, the Board cannot take proceedings under Chap. 6-A. If after the Court settles a scheme under Section 63(4) a suit is filed under Section 65 immediately or a short time thereafter, it is obvious that the Court will not entertain the suit. The right of suit provided by Section 65 is to secure a modification if. after a fair trial, defects are found in the working of the scheme ordered under Section 63(4). Notification proceedings which the Board says are alternative remedy cannot stand on a higher footing.
12. But, is the Board entitled at all to resort to the procedure under the new chapter when a scheme is framed by the Civil Courts in a suit to which the Board is a party? When a suit is filed against a person and judgment is delivered against him, he is bound by that decision unless it is set aside on appeal or review. In cases relating to administration of religious and charitable institutions when a scheme is framed under Section 92, Civil P.C., a further right is given; it is always open to a person who is a party to that decision to file another suit with the necessary sanction of the Advocate-General or the Collector of the District, if in the working of the scheme, defects are found which necessitate a change in the scheme already framed by the Court. Even in cases of suits relating to the administration of temples, a party to a suit is bound by the decree in the suit unless in a later suit filed for that purpose with the necessary sanction, the Court sees reason to alter or modify the scheme and frames a fresh scheme. Till then the rights of the parties are regulated by the original decree. The same result ought to follow in the case of the Endowments Board where it is a party to a suit for the framing of a scheme, such for instance, a suit under Section 63(4) of the Act. It will be nullifying the proceedings of the Civil Courts to allow a party to a decree to change that decree without resorting to those Courts.
13. Section 65 expressly provides that the Board or a trustee or a person interested in the institution, may in a case where a scheme was settled in the presence of the Board in a suit under Section 63(4), file a suit in the Civil Court for the purpose of modifying the scheme settled under that Section. Normally therefore the Board ought to proceed under 8. 65 when it seeks to modify a scheme which was settled in a suit to which the Board was a party. There is no indication in the Amending Act that the Board is exempted from the fundamental rule of law that a party to a suit is bound by the decision in that suit unless it is set aside by an appeal, review or a fresh suit. In cases where schemes were not settled in a suit to which the Board was a party, it may be open to it to resort either to Section 65 or to the notification proceedings under the new chapter. In a, case where the Board was not a party to & scheme decree and it takes proceedings under the new chapter, instead of resorting to a suit under Section 65, the principle that a party to a decree ought not to be allowed to indirectly set at naught that decree is not violated. It may well be that the Legislature contemplated giving the Board power to proceed either by way of a suit in a Civil Court or by notification proceedings under the new chapter in cases where the Board was not a party to a scheme framed by the Civil Courts or where there is no scheme framed by a Court.
14. To my mind the proper way of reading the various Sections would be to confine the procedure under the notification chapter to cases where the Board was not a party to a suit in which schemes were framed by Civil Courts and to cases where no scheme has been framed by Civil Courts. Section 65 expressly provides for a suit to alter or modify a scheme which was settled in a suit to which the Board was a party. The notification Sections following immediately upon Section 65 must be so read as to harmonise with that Section and with the principle that a party to a suit is bound by the decree unless it is set aside by appeal, review or fresh suit. Under Section 63(1), the Board frames a scheme. Section 63(4) gives the dissatisfied party a right to file a suit to alter or set aside that scheme; the Court modifies the Board's scheme and passes a decree. Section 64 says that where no suit was filed under Section 63(4) the Board itself may alter its own scheme, i.e., the one framed under Section 63(1); Section 65 says that schemes settled under Section 63(4) and schemes deemed under Section 75 to be settled under the Act may all be the subject of a fresh suit to modify those schemes. Then comes the new chapter providing for notification proceedings. How are these to be read together? The only way of doing it is to confine the notification procedure as indicated above. Section 65-B on which Mr. Rajamannar laid stress, may well be taken to apply to cases where schemes were settled by Civil Courts in suits to which the Board was not a party.
15. Assuming that the notification provisions apply even to schemes settled in suits to which the Board is a party, such proceedings cannot be started without giving that scheme a fair trial and without specifying in the notice under Section 65-A(1)(a) the reasons with full particulars of the defects found in the working of the scheme framed by the Civil Court. It would not be enough its say merely that the scheme was found wanting. The Board has to give reasons and the trustee is entitled to meet those reasons. Therefore the reasons must be such as would be capable of being met. They must be sufficiently specific to give a reasonable opportunity to the other party to show cause against those reasons. This is the minimum which I think ought to be done before notification proceedings are started. As to points which were specifically decided by the Civil Courts against the Board in suits to which it was a party, they cannot be re-opened under the guise of the notification proceedings. The decisions on those points are binding on the Endowments Board when it proceeds under Section 65-A. Take a case like this. One of the charges against the trustee is that he misappropriated a sum of Rs. 20,000 in 1925 and the Board finds this misappropriation under Section 63(1) and frames a scheme. The trustee files a suit under Rule 63(4) making the Board a party and the Court after elaborate enquiry finds that the trustee did not misappropriate that sum and the finding is upheld on appeal by the highest tribunals in the land. Then notification proceedings are started 'under the new chapter. Can the Board give the alleged misappropriation of Rs. 20,000 in 1925 by the trustee as a reason under Section 65-A(1) and decide the question against the trustee and notify the temple? Not at all. So the contention of the Board that it is entitled to go into all the reasons including those that were decided against it by the Courts is to my mind absolutely untenable.
16. It is urged by Mr. Rajamannar that a dissatisfied party may show cause why the notification proceedings should not be started, that three members of the Board are directed to consider the objections and decide the points and if the party is still dissatisfied with the decision of the three members, he can appeal to the full Board which will hear and decide the matter and that even then the party dissatisfied may go to the Local Government and satisfy it that it is not in the interests of the temple to notify it under the Act. What is urged is that where a statute creating a right in a particular body also provides a remedy for the persons affected by the exercise of the right by that body, it is not open to the dissatisfied party to resort to a Civil Court and that he is confined to the remedy which is prescribed under the Act. To this the plaintiff's advocate urges that where the statutory body is given jurisdiction to exercise a power if certain facts exist, the question whether those facts exist in a particular case so as to give jurisdiction to-the statutory body to exercise the power-given by that statute, or to put it in another way, the question whether the jurisdictional facts exist in a particular case or not, is always open to the Civil Courts to decide and that a party can go to the Civil Court and say that the facts which give rise to jurisdiction to the body do not exist in a particular case and that therefore the proceedings of that body are ultra vires of the powers conferred by the statute.
17. For the plaintiff, reliance is placed upon the decisions in Westminster Corporation v. L & N.W. Ry. (1905) A.C. 426, Gard v. Sewers Commissioners (1885) 28 Ch. D. 486 and Lynch v. Sewers Commissioners (1886) 32 Ch. D. 72 which deal with certain statutes empowering a particular body to acquire property for the purpose of providing public conveniences or for the purposes of widening a street. If the statutory body to which these rights are given attempts to acquire property, not for purposes for which it was authorized to acquire property, but for a purpose alien and foreign to it, then the Courts held that the statutory body had no jurisdiction to acquire the property and that the proceedings were ultra vires. Thus if the property was acquired for the purpose of utilizing only a very small portion for the road making and for selling the rest and making a profit out of it, it was held in Gard v. Sewers Commissioners (1885) 28 Ch. D. 486 that that body exceeded its jurisdiction and that it acted ultra vires of its powers. Then again where the right given is to acquire property for widening a street, it was held in Lynch v. Sewers Commissioners (1886) 32 Ch. D. 72 that it did not include a power to acquire land for the purpose of altering the levels. But, where, as in the case in Westminster Corporation v. L & N.W. Ry. (1905) A.C. 426, the power was given to-acquire land for providing public conveniences and a property was acquired to provide public conveniences and to form a subway to reach them, it was held by the House of Lords that forming a subway to Serve as approaches to the public conveniences is not alien to the purpose for which the body was authorised to acquire land. These cases are not of much use because they turn upon the wording of the statutes with which they were concerned. Where the purpose for which the acquisition is authorized is mentioned in the statute the case is an easy one. The Court has only to decide whether the purpose for which the acquisition was made in any given case comes within the purview of the object for which the acquisition was authorized by the Act. A statutory body cannot acquire the property of a private person unless authority is given to it by a statute. Where the purpose for which the acquisition is made is absolutely foreign to the purpose for which it is authorized to acquire property, then it is easy to say that the body acted ultra vires of its powers and that the exercise of the power in that case was absolutely foreign and alien to the scope of the Act.
18. The question however is not so easy in a case like this, where the purposes for which the proceedings under Chap. 6-A may be started, are not expressly specified in the statute. Here we have to deal with an entirely different, set of facts. The Board is given the power to start notification proceedings under Chap. 6-A. There is no provision laying down the circumstances under which the notification proceedings may be started by the Board. In such a case it is difficult to say when exactly the Board may be said to act ultra vires of its powers or to act arbitrarily and capriciously and in fraud of the powers conferred upon it. It is said by Mr. Rajamannar, the learned advocate for the Board, that if the Board starts proceedings on the ground that it is not satisfied with the politics of the trustee or for some other reasons which are absolutely unconnected with the good administration of the temple, then the proceedings under Chap. 6-A would be ultra vires of the powers of the Board. But Mr. Rajamannar con. tends that if the proceedings started by the Board are stated to be for securing the better administration of the temple, the Court has no power to go into the sufficiency of the reasons which led the Board to start the proceedings under Section 65-A. He urges that the Legislature has not placed any restrictions on the power of the Board to start proceedings under Chap. 6-A and that what the Board is asked to do is to give reasons in the notice under Section 65-A(1)(a) and to go into the matter at two stages when objections are filed by a party. He urges that so long as the reasons which are stated by the Board in its notice are not absolutely foreign to the good administration of the temple and so long as action is taken in the professed interests of the temple, the Courts have no jurisdiction to enquire into the matter. He relies upon the decision of the House of Lords in Westminster Corporation v. L & N.W. Ry. (1905) A.C. 426, where it is said at p. 427 that where the Legislature has given power to a particular body with a discretion as to how it is to be used, it is beyond the power of any Court to contest the discretion assuming that the thing done is a thing which the Legislature has authorized. He also relies upon the decision in short v. Poole Corporation (1926) 1 Ch. 66, which lays down that where power is given to a party it is for that party to act and that merely because its action does not appear to be right, it is not a ground for the Court to set it aside. Reliance is placed upon the observation of Warrington L.J., at page 90 in the above case that so long as the body does not act upon alien and irrelevant grounds and exercise its discretion on such grounds, the Civil Courts have no right to sit in judgment as regards the exercise of that discretion. Adopting this test to a case where, as here, in a suit to which the Board is a party, the Court after considering all the points urged by the Board in the best interests of the temple, decides against the Board and frames a scheme, let us see how the position stands. I have already expressed the view that having regard to the whole scheme of the Act in such cases the remedy is only by way of a suit under Section 65 and not by way of notification under Section 65-A at all.
19. Even otherwise, the statute does not specify the circumstances or conditions under which notification proceedings can be started. But it requires 'reasons' to be given for the action in a notice issued under Section 65-A(1). Provision is made for a trustee or other person interested to file objections and to satisfy the Board that it is not in the interests of the temple that it should be notified. So the reasons given by the Board should be reasonable. They ought not to be unreasonable and must be consistent with the scheme and purpose of the Act and must not be contrary to the well-established principles of jurisprudence, viz. (1) that a party to a suit is bound by the decision in that suit unless the same is varied or set aside by appeal, review or by a separate suit, (2) that a party to a suit is bound by the decision in the suit on all the points which were raised and expressly decided in the suit. So the Board cannot put forward the very charges or points that were decided against it in a suit to which it was party. The Board cannot adopt a course which would render nugatory the provisions of Section 63(4) giving a right of suit to a dissatisfied party. As I said before, the Board was a party to the scheme suit. The Board is as much a litigant as any other party. It is bound by the result of the litigation and to say that in such a case the decision can be set at naught by proceedings taken for the obvious purpose of altering that very decision of the Court is, to my mind, utterly inconceivable. It is an extraordinary contention that the Board urges in para. 7 of the written statement that merely because the management ordered by the Civil Court in a suit to which it is a party is in its view not in the best interests of the institution it can immediately start proceedings under Chapter 6-A without even giving that scheme a fair trial. Is it to be taken that the Legislature thought the Endowment Board alone can frame a good scheme and the Civil Courts cannot do so? Is it to be taken that the Board has the monopoly of wisdom in such cases? Section 63(4) gives the Court a right to alter or modify a scheme framed by the Board under Section 63(1). The Court may spend years in deciding a suit under Section 63(4) and the case may go up in appeal to the highest Courts and be decided by those Courts and yet on the mere ground that the decision of the ultimate Court of appeal is not in the Board's view in the best interests of the temple, proceedings can be started at once under Section 65-A, if the Board's contention is right. That is not the purpose or the intendment of the Act. I do not think that the Legislature would give in Section 63(4) a right to Civil Courts to modify or alter the scheme framed by the Board in a suit to which the Board is made a party, and straightway give power to the Board, to nullify the decisions of the Civil Court inclusive of the highest tribunals, merely because the Board thinks that the decision of the Civil Courts is not conducive to the best interests of the institution, while that was the very question that was decided by the Court. The right of suit under Section 63(4) would, in that event, be illusory. If the plea advanced in para. 11 that the procedure under Section 65-A is the only remedy to effectively safeguard the interests of a temple or its endowments, is accepted, why have Sections 62, 63, 64 and 65 of the Act? Evidently the primary object, and perhaps the sole object, of these proceedings is to get round the decisions of the Civil Courts rather than to get a proper scheme for the temple.
The next argument of Mr. Rajamannar is that in this particular case the scheme that was framed was the one framed by the High Court in November 1930, that that scheme was given a fair trial for a long period of eight years, that in the working of it, various defects were found and that it is for that reason that notification proceedings were started by the Board. He urges that 0. Section No. 1 of 1933 was filed by two worshippers who wanted the High Court scheme of 1930 to be modified in very minor and inconsequential matters and that in that suit the Board in its written statement said that in the interests of the institution a better scheme was necessary, that the Court refused to deal with matters which were not urged by the then plaintiffs, that the Court in fact dealt only with those matters which were not provided for in the High Court scheme. He therefore says that in O. S. No. 1 of 1933 nothing material was adjudicated upon, no suggestions for improvements of the High Court scheme were dealt with by the District Judge, and decided against the Board. He says that the Board is not going behind and is not flouting the decision of the District Judge. He invited me to go into that judgment and find out what the points are that are decided in that judgment and see if the Board in starting the notification proceedings is trying to get behind any point which was decided in the judgment. He says that the reasons for starting the proceedings under the new Chap. 6-A are all defects which were found in the working of the scheme of 1930.
20. Mr. Kuttikrishna Menon urges that it is not the case of the Board in the written statement that they gave the scheme of the High Court framed in November 1930 a fair trial, that defects were found in the working of that scheme and that that is the reason why the Board took the proceedings under the new chapter. He draws my attention to the fact that in the plaint it is specifically stated that nothing happened after the scheme was framed in November 1930 to justify any interference by the Board, that the Board is trying to get behind the scheme framed in 1930 for the Very reasons which existed in 1930, that reasons 1, 3, 5 and 6 are the grounds which had been urged by it and decided against it that it had never cared to urge reasons 2, 4 and 7 for the reason that nobody ever thought there was any substance in them. He draws my attention to the fact that in para. 13 of the plaint it is definitely stated that at the hearing before three members of the Board, this argument that the grounds now urged were in existence in 1930 and that nothing happened between then and now justifying any action was expressly urged. In para. 13 it is further stated that at the hearing, the Commissioners conceded that nothing had transpired after the decree above mentioned and yet overruled the preliminary objection. The plaintiff's advocate says that in the written statement there is no allegation that the three members did not concede as alleged in para. 13 of the plaint or that they wrongly conceded it or that their concession is not binding on the Board. He also urged that in the written statement there is no averment or even an indication anywhere that subsequent to the High Court scheme, the Board discovered any defect in the working of that scheme to justify resort to Chap. 6-A. It is pointed out on the other hand that the Board expressly states in paragraph after paragraph that because the Board is convinced that the decision of the Civil Courts is wrong, it is taking proceedings under this chapter. My attention is particularly drawn to para. 7 of the written statement. It is said that this and the other paragraphs do not state that the scheme of the High Court was found wanting in the actual working of it and that for this reason, proceedings are being started. He says that the written statement is a direct challenge thrown out by the Board as to its supreme powers and that the Board invites a decision on its absolute right to do what it likes and to start proceedings immediately after a decision of a Civil Court though it is a party to the suit in which a scheme is framed by the Civil Court and that it can urge and consider the very reasons decided against it by the Civil Courts. The written statement was drafted presumably under expert legal advice by the defendant Board the members of which are all lawyers; it cannot be said that the pleadings are loosely drafted. I am afraid that in this case there is ample justification for the contention of the plaintiff's advocate that the plea of the Board in almost every paragraph of the written statement is that it is entitled to have its view prevail over the judgment of the Civil Courts, and not that the High Court scheme was after a fair trial found defective.
I shall now proceed to deal with the reasons given by the Board in the notice, Ex. P-18: Reason No. 6 : One of the chief points in controversy is whether the appointment of the manager should be with the trustee or whether it should be with the Board. This question was one of the principal points of contest between the Board on the one side and the trustee on the other in O.S. Nos. 1 and 2 of 1929, District Court, South Malabar. The Board contended that having regard to the fact that the temple is famous all over India and attracts pilgrims in large numbers from the whole country and also having regard to various other facts, the right of appointing the manager should be with the Board. The trustees resisted this claim and the District Judge came to the conclusion that the power of appointment should be with the Board and the Zamorin should have the power to nominate the manager in the first instance. The Zamorin was to send up a nomination and if the Board did not approve of the nomination after ascertaining the views of defendant 2, the Zamorin was to nominate another person and the same procedure was to be gone through. If after three nominations the Board was still of the opinion that the nominations of the Zamorin were not proper, then the Board itself was to appoint the manager. Naturally the Zamorin was dissatisfied with this arrangement and he carried the matter in appeal to the High Court in A.S. Nos. 211 and 212 of 1930. Wallace, and Krishnan Pandalai, JJ., before whom the appeal came on for hearing, went elaborately into this question as to who should have the power of appointing the manager. While giving due weight to the reasoning of the District Judge, this Court thought that in the circumstances of this case, having regard to the fact that the trustees were men of very high standing and position, one being the Zamorin Raja of Calicut and the other a very prominent Nambudiri, the power of appointment of the manager should be with the trustees and that the Board should not have that power. In the scheme framed by the High Court, the power of appointing the manager was given to the trustees.
21. In refusing to give the Board the power of appointing the Manager, the High Court; did not rest its decision on the view that such a course was illegal or not justified by the provisions of the Religious Endowments Act as it then stood, but on the special cir. cumstances of this case. The scheme has been functioning for eight years and there is no suggestion in the notice given under Section 65-A(1)(a) that this provision of vesting the power of appointing the manager in the trustee had led to any unsatisfactory results. We have got a bald statement in the notice that in the interests of the administration of an institution of the importance of the Guruvayur Temple, it is necessary that the actual day to day management should be in the hands of persons appointed by the Board. This is, to say the least, an extraordinary contention, that a manager appointed by the trustee, however eminent the trustee may be and however unimpeachable his character and integrity might be, cannot look after the day to day management and it is only a person appointed by the Board In Madras that could efficiently discharge the duties of the day to day management. Further, in this case that is the very point that was urged and fought very strenuously both before the District Judge and before the High Court; and the High Court ultimately decided that for the reasons given by it, the trustee should have the power. There being no allegation or suggestion that the appointment by the trustees has not worked properly after 1930, I am of opinion that it is not open to the Board to go behind the express adjudication by the High Court in the appeal to which the Board was a party and to set at naught the decision of the High Court by arrogating to itself the power of appointing the manager under the indirect procedure of Chap. 6-A. I do not think that it was the intention of the Legislature to arm a subordinate authority like the Endowments Board with powers to flout the decisions of the highest Courts in the land merely by having resort to the procedure by notification. The Legislature only provided a cheaper and expeditious remedy in some cases, and it cannot possibly be that it was the intention of the Legislature to enable the Board to bring the administration of justice into contempt and ridicule which would be the result, if, after fighting for a particular power and after having lost it in the Civil Courts, the Board without any fresh facts may immediately resort to notification proceedings to get that power, merely because in its view the decision of the highest tribunal in the land is not in the best interests of the institution. I hold that, so far as this reason goes, it is a fraudulent exercise of the power given to it in trying to re-agitate a matter which was decided against it by the High Court and to substitute its own view as against the considered judgment of the High Court. I cannot conceive of a grosser abuse of the powers given in the new Chap. 6-A than this case.
22. Reason No. 1 : The first reason given is that the scheme of administration under which this temple is managed fails to provide effective supervision or check over the action of the trustees, especially in the matter of the budget and the expenditure of the temple funds. The Board was a party to O.S. Nos. 211 and 212 of 1930 in the High Court. Various suggestions were put forward by it as regards the budget and the expenditure of temple funds. I find various safeguards provided in that decree and these safeguards were provided after hearing the Board and the other parties. It is not said in this reason No. 1 that the scheme as framed by the High Court has in its working failed to achieve the object of securing effective supervision or check over the actions of the trustee in the matter of the budget and expenditure. The notice reads as though that at the inception, the scheme as framed failed to provide for effective supervision or check over the action of the trustees in the matter of the budget and the expenditure of the temple funds. The remark that I made in respect of reason No. 6 applies equally to this reason.
23. Reason No. 5 : The point covered by reason No. 5 was similarly considered by the Courts in O. S. Nos. 1 and 2 of 1929 and in A. S. Nos. 211 and 212 of 1930. My remarks as regards reason No. 6 also apply to this.
24. Reason No. 3 : The District Court in O.S. No. 1 of 1933 has rectified this matter. It is not clear from reason No. 3 what there is to complain of after the judgment of the District Court in O.S. No. 1 of 1933.
25. Reason No. 4 : Arrears spoken of may be the accumulations of several years. It is not possible to collect 100 per cent, of the rents every year. In most years there will be some arrears left. The ground is vague; it is not stated that it is the arrears which were allowed to accumulate during the few years past. It is impossible to meet such an allegation. It is not a ground for starting proceedings under Chap. 6-A unless it is stated that large arrears were allowed to accumulate during a period when they might and ought to have been collected. In that case alone it will point to a neglect of duty. The reason as framed must be a reason for the notification, i.e., for the drastic step of imposing serious restrictions on the trustee's powers. If you frame your reason in a very vague manner and do not give the necessary particulars on which the charge of neglect of duty is based, it is no reason at all.
26. Season No. 2 : This was never put forward in the earlier litigations. What is said here is that the previous Zamorin Rajahs have taken loans from the temple funds and that succeeding trustees have failed to recover those amounts. In Ex. P-19 it was pointed out that a previous Zamorin took la loan from the Dewaswom funds and that the then Zamorin died without leaving any private property and that there are no assets from which it could be recovered. In Ex. P-19 the plaintiff further stated that in spite of the fact that there were no assets of the borrower still the Zamorin who immediately preceded him paid a sum of Rs. 15,000 to the trust. He says that there is now only a sum of Rs. 15,000 more to be paid and that though under no legal obligation he himself would pay in a few years by yearly payments. Mr. Kuttikrishna Menon urges, and I think rightly, that it is only if the money could be recovered and the trustee does not recover it, then alone it may amount to neglect of duty on the part of the trustee for which any action could be taken under the notification chapter. In this case, even after the objection statement Ex. P-19, there is no plea in the written statement that this was an amount which could be recovered and which the trustees have failed to recover and that it therefore amounts to neglect of duty on their part. It is not even suggested that the previous Zamorin borrowed the amounts in question for purposes binding on the Sthanom or on the succeeding Zamorin. There is no allegation that the person who borrowed the money left any assets from which the money could be recovered. In the absence of these two averments, I agree with Mr. Kuttikrishna Menon, that this is no reason at all. The reason to be mentioned in the notice under Section 65-A(1) are all reasons which must point to some neglect of duty or omission on the part of the trustee to do what he is bound to do, in which case alone, there will be a justification for resorting to this drastic step of notifying the temple. In the present case Mr. Kuttikrishna Menon urges that the Board was in possession of these facts all through and that because there is no substance in this reason, it was not put forward in the previous litigations. If really there was any sum which could be legally recovered and yet not recovered by the succeeding trustees it would have been put forward in the previous litigations as a ground for curtailing the powers of the Zamorin. It was open to the Board to point out and the Board would certainly point out that here was a Zamorin who did not care to collect the amounts which could be collected and that he was causing loss to the institution. No such plea was ever put forward. Hence, for the reasons which I have given in connexion with the other reasons, I hold that reason No. 2 is not available to the Board. As I said before, the reasons must give specific grounds upon which neglect of duty or omission can possibly be inferred on the part of the trustee.
27. Season No. 7: This is merely a statement of what the Board thinks about the scheme as framed by the Civil Courts and not a statement that the scheme after being worked for a reasonable time has been found to be unsatisfactory. As I said before if this is what is intended, the Board must indicate in what particulars the scheme was found wanting. As it is, it is absolutely vague and indefinite. So I hold that 'reasons' given in Ex. P-18 are not available to the Board.
28. In the result the suit is decreed and it is declared, (1) that the proceedings under Section 65-A are not open to defendant 1 in this case and that a suit under Section 65 is the only remedy open to the first defendant Board; (2) that in any case, the proceedings started by its notice dated 19th December 1938 are ultra vires of the first defendant Board's powers and are a fraudulent exercise of the powers of the Board and are therefore illegal and invalid. I further grant an injunction restraining defendant 1 from proceeding with the enquiry under Chap. 6-A, Madras Act 2 of 1927. I also direct defendant 1 to pay the plaintiff's costs of this suit. Defendant 2 will bear his own costs.