P. Kunhamed Kutti, J.
1. The petitioners seek to revise the order passed by the Sub Divisional Magistrate, Ariyalur, dismissing their application under Section 101 of the Madras Hindu Religious and Charitable Endowments Act (XXII of 1959). They made the application as trustees of Sri Subramaniaswami and nine other temples in Vadalai Gudalur village in Lalgudi Taluk, having been appointed as such by the Area Committee, Tiruchirapalli, and claiming as such trustees to be entitled to possession of the temples and their properties which are in the possession of respondents 1 to 3 who, it was alleged, did not deliver possession in spite of repeated demands. The fourth respondent is one of the trustees appointed by the Area Committer ; but he was impleaded as a respondent as he was not willing to join the petitioners.
2. Respondents 1 and 2 resisted the application contending that the appointment of the petitioners and the fourth respondent as trustees by the Area Committee was illegal. They further set up, a usage by which four groups of Odayar families nominated one person each as trustee, and the right of such nominees to function as trustee for life unless removed for misconduct. The claim thus made by the respondents was that they partook the character of hereditary trustees and under Section 49 of the Act, the Area Committee was not competent to appoint a trustee.
3. The third respondent disclaimed all connections with the temples while the fourth respondent generally supported the contentions of respondents 1 and 2 and claimed to be assisting them.
4. The learned Magistrate considered the language of Section 101 and in the view that the petitioners do not satisfy the requirements of Section 101 of the Act, dismissed the application.
5. I have no doubt that the order passed by the learned Magistrate is wrong and cannot be upheld. It is not open to him in a petition under Section 101 of the Act to canvass the propriety or the validity of the order of appointment of the petitioners as trustees. The petition filed by the respondents 1 and 2 questioning the appointment of the petitioners and the fourth respondent as trustees by the Area Committee has, it is represented, been dismissed by the Commissioner, so that it has to be taken that the appointment of the petitioners, and the fourth respondent has now the approval of the Commissioner as well.
6. The powers of the Magistrate under Section 101 of Act XIX of 1951 which is identical with Section 101 of the present Act, was considred by Ramaswami, J., in Shanmugha Archakar v. Munuswami (1959) 1 M.L.J. 144. The learned Judge held that the powers under the said section are very limited and the Magistrate dealing with an application under the said section is in the position of an executing Court and cannot go behind the order of certificate issued by the Commissioner and he has no power to entertain any objection to the validity, legality or correctness of the order or to the jurisdiction of the authority issuing it. The only remedy of the aggrieved party is to file a suit.
7. That the procedure contemplated by Section 87 of Act XIX of 1951 is of a summary nature, is the view taken in Prattipathi Dandiah v. Venkatarama Dikshatulu (1953) 2 M.L.J. 550. In the opinion of the learned judge when the Legislature in its wisdom thought fit to make a provision like Section 87 which in its ultimate analysis only drives the office-holder to file a suit to establish his title if he had not proved the same before the Commissioner, it cannot be considered to be an unreasonable restriction on the right of a person to hold the property. It is directed only against trustees, ex-trustees, office-holders or servants of a temple and persons claiming under them. The section also provides for safeguard against arbitrary eviction. A summary enquiry by the Commissioner and the issue of a certificate by him is provided for before the section comes into operation and the summary order itself is liable to be challenged in a Court of law.
8. Mr. Venkatarama Iyer for the respondent would rely on Subbu Chetty v. Munuswami Chetty : (1957)2MLJ161 wherein Ramaswami Goundar, J., has taken the view that when the person in possession of the property claimed title in his own right, in the absence of any evidence and finding that he was an ex-trustee and in that capacity continued in possession, he could not be ousted by a summary order under Section 87 of Act XIX of 1951. This ruling obviously is not applicable to the facts of the present case. In Bathula Krishna Brahrnam v. Dharma Chenchi Reddi (1959) 1 An. W.R. 265 Chandra Reddi, C.J., held that before reaching a conclusion as to whether persons who offer resistence to the trustee, appointed by the Commissioner taking delivery of the property have title of their own to continue in possession or whether the claim in that behalf is in good faith, the Magistrate has to hold an enquiry into the matter. The question was considered by the learned Judge in the context as to how far a Magistrate dealing with a petition under Section 87 of Act XIX of 1951 could be regarded as a Judicial functionary or as one discharging the duties of an Executive Officer and the conclusion come to was that there is no warrant for treating a Magistrate performing the function allotted to him by Section 87 of the Act as one acting as a persona designate and not as a Court. This case again has little application to the question raised before me.
9. In Criminal Revision Case No. 1272 of 1961, I have taken the view that a Court dealing with an application under Section 101 of the Act is in the position of an Executing Court and that it cannot go behind the order of appointment of the persons claiming to be trustees. It seems to me, that the order of the learned Magistrate dismissing the petition of the petitioners was unjustified. Even the non-joinder of the fourth respondent as a petitioner could not have led to that result since he was already before the Court as a respondent and so long as he has been found to be one of the trustees validly appointed by the Area Committee, an order could have been made in his favour as well.
10. This petition has, therefore, to be allowed and is allowed setting aside the order of dismissal passed by the learned Magistrate. The temples will be delivered to the petitioners and the fourth respondent in terms prayed for in the petitioners' application.