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In Re: S.R.M.S. Chidambaram Chettiar - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai High Court
Decided On
Reported in(1958)1MLJ314
AppellantIn Re: S.R.M.S. Chidambaram Chettiar
Cases Referred and Narasimhacharyulu v. Kotayya
Excerpt:
- .....of the properties. on obtaining the certificate, an application has been filed before the district magistrate, cuddalore, for execution of the same. before the district magistrate the petitioner herein contended that he has not been the trustee but that his father was and, therefore, he did not come under section 87 of the act ; and secondly, that the petitioner has been holding the lands as inam burdened with service for performing the milk kattalai which has been regularly performed.3. the learned district magistrate overruled both these contentions and directed the temple being put in possession of the lands covered by the certificate, free of all obstruction by this petitioner and others. hence this revision case.4. on both the points i am of the same opinion as the learned.....
Judgment:
ORDER

Ramaswami, J.

1. This is a Revision sought to be filed against the order made by the learned District Magistrate of South Arcot at Cuddalore in Cr.M.P. No. 31 of 1957, under Section 87 of the Madras Hindu Religious and Charitable Endowments Act.

2. The facts are :- The temple of Sri Patalisvaraswami, Tirupapuliyur, through its Executive Officer, obtained a certificate relating to the properties under consideration that they belong to the temple. The said certificate has been issued by the Deputy Commissioner in his proceedings bearing No. 14810 of 1956, after an opportunity was given to the petitioner before us to put forth his contentions, if any, while he and others were resisting and preventing the temple from taking possession of the properties. On obtaining the certificate, an application has been filed before the District Magistrate, Cuddalore, for execution of the same. Before the District Magistrate the petitioner herein contended that he has not been the trustee but that his father was and, therefore, he did not come under Section 87 of the Act ; and secondly, that the petitioner has been holding the lands as Inam burdened with service for performing the milk kattalai which has been regularly performed.

3. The learned District Magistrate overruled both these contentions and directed the temple being put in possession of the lands covered by the certificate, free of all obstruction by this petitioner and others. Hence this Revision Case.

4. On both the points I am of the same opinion as the learned District Magistrate and here are my reasons:

Point 1. In advancing this argument, the terms of Section 87 have been overs looked. Section 87 covers not only a trustee, office-holder or servant of the religious-institution who has been dismissed or suspended from his office, but also persons otherwise not entitled to be in possession or any person claiming or deriving title from such trustee, office-holder, or servant, not being a person claiming in good faith to be in possession on his own account or on account of some person not being such trustee, officer-holder or servant. The section is comprehensive enough to take this petitioner. This point fails.Point 2. It is well settled that proceedings for delivery under Section 87 of the Act are in the nature of execution proceedings by reason of the proviso contained in the section itself, which requires the Commissioner to hear the parties likely to be affected and consider their objections, if any, before issuing the certificate. It is also well settled law in this State that the executing Court has no jurisdiction to question the correctness, legality or propriety of the decrees which it is called upon to execute. A Court executing a decree cannot go behind the decree. It must take the decree as it stands. The Court executing a decree cannot alter, vary or add to the terms of the decree even by consent of parties : Venkatasubba Rao v. G. Venkataramanayya : AIR1948Mad397 Muthia v. Veerammal I.L.R(1887) Mad. 283 Venkatachala Reddi v. Venkatarama Reddi I.L.R.(1901) Mad. 665 Appa Rao v. Krishna Iyengar I.L.R.(1901) Mad. 537 Gomathi v. Komandur I.L.R.(1903) Mad. 118 Rangaswaml v. Tirupathi : (1904)14MLJ413 Kumaretta v. Sabapathy : (1906)16MLJ545 Nathan v. Samson I.L.R.(1931) Rang. 480. Notes of Unreported Cases (Madh. B.) 5639 Thus a District Judge moved under Section 70(2) of the Hindu Religious Endowments Act is in the same position as any other executing Court and is precluded from examining it on its merits but is bound to enforce it ; Lakshmindra Tirta Swamiar v. President of the Board of the Commissioners, H.R. E, Madras (1932) 65 M.L.J. 364 : I.L.R. 56 Mad. 712 President of the Board of Commissioners of H.R. E. Madras v. Lakshminda Tirta Swamiar (1934) 68 M.L.J. 200 see also Lanka Ramiah v. President, H.R. E. Board, Madras (1934) 68 M.L.J. 494 and H.R. E. Board v. Koteswara : (1937)2MLJ413 President H.R. E. Board, Madras v. Nagarathlna Mudallar : AIR1935Mad417 and Mahadevudu v. President H.R.E. Board, Madras 1935 M.W.N. 384.

5. Happel, J., held in Kinnayakka Ballal v. Narnappayya : AIR1947Mad33 that an application for delivery under Section 78 of the earlier Act (corresponding to Section 87 of the present Act) was in the nature of an application for execution and it is not open to a person objecting to the application for delivery made under the Act to question the order of appointment of trustee who has made the application.

6. Satyanarayana Rao, J., who delivered the Judgment of the Division Bench in Parankusam Ranganayakulu v. P. Venkatanarasimhayya : (1949)1MLJ200 expressed inability to concur in the opinion of Happel, J., on the ground that the order of the Board according to the law then embodied in the section contemplated no enquiry. The learned Judge stated that:

there would be considerable force in the contention that an application for delivery was in the nature of an application for execution, if there was a prior order of the Board between the parties holding that the property belonged to the temple or the trust.

He instanced the case of Baijnath Sahal v. Ramgut Singh to show that the case before him lacked the elements to be found in the Privy Council case. That was a case where a certificate was issued by the Collector specifying the sum of arrears of revenue due and the person from whom it was due. The certificate was treated by reason of the language of Section 7 of the Bengal Act VII of 1880 (Public Demands Recovery Act) as having the effect of a decree and proceedings in pursuance thereof as in the nature of execution proceedings. Similar provisions have been made in Section 87 of the present Act.

7. The grounds on which the Division Bench refused to treat the order of the Board as a decree and an application for delivery as one in enforcement of the right given thereunder no longer exist.

8. Then there were two conflicting decisions of this Court one by Basheer Ahmed Sayeed, J., in Vedantam Naraslmhacharyulu v. P. Kotayya (1952) 2 M.L.J. 217 and another Nallamuthu Chimpirayya In re : AIR1953Mad219 decided by me. Basheer Ahmed Sayeed, J., seemed to imply that Section 87 permitted a summary enquiry and I held that no such enquiry was permissible, because the proceedings initiated under Section 87 were in the nature of execution proceedings. It is true that I made some observations and defined the procedure to be adopted by the Magistrate which, on further reflection, I find are not warranted by the terms of the section, which requires the Magistrate only to find out whether the applicant has been appointed as a trustee or whether the properties included in the application are comprised in the certificate granted by the Commissioner. This was correctly pointed out in an article published at page 21 of the Journal section in (1952) 2 M.L.J. In these circumstances the papers were placed before the learned Chief Justice for the matter being posted before a Bench. The order of reference and the decision of the Bench to which I was a party are reported as Prattipati Dandiah v. Venkatarama Dikshutulu (1953) M.L.J. 550. The Judgment of the Bench was delivered by Subba Rao, J., (as he then was) and he held that if the conditions of Section 87 are complied with, the Magistrate is bound to direct delivery of the property and records to the applicant though the Archaka did not admit the title of the temple. Parankusam Rangacharyulu v. P. Venkatanarasimhayya : (1949)1MLJ200 was dissented from and Narasimhacharyulu v. Kotayya (1952) 2 M.L.J. 217 was overruled.

9. Bearing these principles in mind, if we examine the facts of this case, we find that in these proceedings before the learned District Magistrate the contention that these lands are only burdened with service of milk kattalai cannot be gone into. The remedy of the petitioners is to file a civil suit, if so advised. This point also fails.

10. In the result, this Revision Case is dismissed.


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