A. Varadarajan, J.
1. Defendants 2 to 4 and the legal representatives of the first defendant, who succeeded in the trial Court, but failed in the lower appellate Court, are the appellants herein. The first respondent 1st plaintiff is the deity, Aruppukottai Chockalingapuram Chokkanathaswami, and respondents 2 to 4 herein (plaintiffs 3 to 5) are its trustees. The suit was for declaration of the first respondent's title to four items of lands and for possession. The case of the respondents was that all the four items of the suit lands were originally comprised in the Aruppukottai Zamin village. Items 2 and 3 were granted by the Zamindarini to the first respondent in 1803-1804, while items 1 and 4 were granted to the first respondent by a Pathadappu Kararnama document Exhibit A-2, dated. 20th August, 1899 executed in favour of the Zamindar. The first respondent was in possession of all me four items by leasing them out. After the estate was abolished and taken over on 7th April, 1949 under Madras Act XXVI of 1948, one Somasundaram Pillai claimed patta for the first respondent on the ground that they were the first respondents private lands. His application for grant of patta was dismissed. The first defendant Adaikala Moopanar manoeuvred to obtain patta in his name, and in the appeal filed by the first respondent against the order directing the grant of patta to the first defendant, an order for remand was passed by the Director of Settlement and ultimately patta has been granted to the first respondent. The deceased first defendant filed O.S. No. 123 of 1958, on the file of the trial Court, for declaration of his title to the suit lands and for an injunction restraining the first respondent from interfering with his possession but failed in the trial Court, which dismissed the suit on 26th February, 1960. Exhibit A-59 is the certified copy of the judgment in that suit. On appeal, the suit was decreed in A.S. No. 39 of 1960 as seen from Exhibit A-60. Then, the first respondent fifed, S.A. No. 1576 of 1961 against the decree in A.S. No. 39 of 1960, and it was held in the second appeal as per Exhibit A-61 that the first respondent had, no title, but the deceased first defendant (plaintiff in that suit) was in possession and entitled to the injunction, although it had not been found whether he had title to the suit lands or not. Thereafter, the present suit has been filed for declaration and possession on the basis that the decision rendered in S.A. No. 1576 of 1961 docs not constitute res judicata the contention being that the first respondent was not properly represented in the previous action. The defence was that the first defendant was a ryot entitled, to the suit lands and had perfected title to the same by adverse possession and that the present suit was barred by res judicata by virtue of the decision in S.A. No. 1576 of 1961. The Trial Court originally considered the question of res judicata as a. preliminary issue and upheld the plea and dismissed the suit. But, on appeal, it was held that there was no bar of res judicata, and there was an order of remand of the suit for trial on the other issues. Then C.M.A. No. 167 of 1968 was filed in this Court against the order of remand. Ramaprasada Rao, J., dismissed, the said appeal, observing thus:
Suffice it, however, to say that when the main objection of the temple was that the earlier decision was rendered at a time when proper parties were not before the Court, then that issue has to be gone into, and if ultimately the temple succeeds in establishing that fact, then certainly the earlier decision would not operate as res judicata. If, on the other hand, the temple fails to prove that they were not properly represented during the three stages when the litigation was fought out, then it follows automatically that the earlier decision of this Court and the findings of the Courts below in O.S. No. 123 of 1958 and the appeal thereon will be a bar to the present action.
After the remand, the trial Court held that the first respondent deity had title to the suit lands, but lost it by the adverse possession of the first defendant, that the first respondent was properly represented in the prior action by one Ramaswami Naicker who had been appointed as the fit person by the Deputy Commissioner, Hindu Religious and Charitable Endowments Department, under Exhibit A-45, dated 26th December, 1961 to perform the functions of the trustee pending the disposal of the scheme proceedings, and that the decision rendered in S.A. No. 1576 of 1961 was res judicata, and dismissed the suit. But, on appeal it has been held by the learned Subordinate Judge that the first defendant had not acquired title to the suit lands by adverse possession, that the title of the first respondent subsists and that the decision in S.A.No. 1576 of 1961 does not constitute res judicata for two reasons viz. : (1) that Meenakshisundaram Pillai and Ulagammal, who are now said to be trustees along with Some others, were the erstwhile trustees and they had not been made parties and therefore there was no proper representation of the first respondent; and (2) that there was gross negligence in the conduct of the prior suit by Ramaswami Naicker and thus the lower appellate Court has allowed the appeal, decreeing the suit as prayed for with costs throughout.
2. The questions arising for consideration in this second appeal, therefore, are:
(1) Whether the decision in S.A. No. 1576 of 1961 constitutes res judicata?
(2) Whether the appellants have acquired title to the suit lands by prescription?
3. The learned District Munsif has considered the question of res judicata in paragraphs 21 to 27 of his judgment and has observed in paragraph No. 27 that in the prior suit the first respondent was represented by Somasundaram Pillai, a hereditary trustee, Sankaralinga Moopanar, the Chairman of the Board of Trustees appointed by the Hindu Religious and Charitable Endowments Department, and Ramaswami Naicker, the fourth plaintiff who was appointed as the fit person by that Department to perform the functions of the trustees and they fought the prior litigation up to the High Court, that the order under Exhibit A-45, appointing Ramaswami Naicker as the fit person, showed that he was fully competent to represent the first respondent and he was even now looking alter the affairs of the first respondent and was solely authorised to conduct the present suit as seen from Exhibit A-76 and that the contention that the first respondent was not properly represented in the prior suit and the appeal, was not acceptable. Therefore, he held that the first respondent had been properly and adequately represented in all the stages of the prior litigation and that the findings in the earlier suit and the appeals, therefore, operated as res judicata against the plaintiffs. The learned Subordinate Judge has unfortunately not considered the question whether Ramaswami Naicker, the fourth plaintiff, who was appointed under Exhibit A-45 as the fit person pending the scheme proceedings to perform the functions of the trustee of the first respondent and had been solely authorised by Exhibits 76 to conduct the present suit, properly represented the first respondent in the prior litigation or not, but has held that Meenakshisundaram Pillai and Ulagammal, the other two plaintiffs in the suit also are the trustees and that as they had not been made parties in the prior litigation, the decisions rendered in the prior litigation culminating in S.A. No. 1576 of 1961 do not constitute res judicata. It is unnecessary to consider the question whether there was any gross negligence on the part of the person concerned in the conduct of the suit on behalf of the first respondent and the decision in the prior litigation will not, therefore, operate as res judicata in the subsequent suit, as it does not arise for consideration, the respondents not having raised the plea of negligence.
4. Ramaswami Naicker had been appointed as the fit person under Exhibit A-45 by the Deputy Commissioner, Hindu Religious and Charitable Endowments Department during the pendency of the scheme proceedings and he had been solely authorised to be in charge of the conduct of the present suit under Exhibit A-76. There is nothing on record to show that when he was acting as the fit person to discharge the functions of the trustees of the first respondent any other person also was entitled to act on behalf of the first respondent and represent the same. The suit lands were stated to belong to the first respondent deity and the other respondents are stated to be trustees only in the English sense of the term. The question whether in the absence of a de jure trustee, the de facto trustee of a public charitable or religious endowment, who is in possession and management of the institution and its other properties for the time being, is entitled to maintain a suit on behalf of the temple or the institution for the recovery of trust property held adversely to the trust by a stranger, came up for consideration in Sarikaranarayana Ayyar v. Sri Poovannatha Swami Temple : (1949)2MLJ171 . There Rajamannar C.J., has observed at page 196 thus:
In the case of a Hindu temple, the property vests in the idol, which is a juristic entity. From its very nature, the idol can act and assert its right only by a recognized human agency known as a shebait, or dharamakarta, and sometimes called trustee; see Jagadindra Nath Roy v. Hemantha Kumari Debi (1904) I.L.R. 32 Cal. 129 (P.C.) : 31 I.A. 203 : 6 Bom. L.R. 765 : 8 C.W.N. 809, and Pramatha Nath Mullick v. Pradyumma Kumar Mullick (1925) I.L.R. 52 Cal. 809 (P.C.) : 1925 49 M.L.J. 30 : 52 I.A. 245 : 87 IND.CAS. 305 : A.I.R. 1925 P.C. 129. But such a manager by whatever term he is designated, is not the person in whom the legal title vests as in a trustee. Likewise, the head of a mutt, even though he may have the right to a part of the usufruct of the properties belonging to the mutt, is not a trustee in the English sense of the term, although in view of the obligations and duties resting on him, he is answerable as a trustee in the general sense for maladministration. Called by whatever name he is only the manager and custodian of the idol or the institution Vide Vidya Varuthi v. Baluswami Ayyar (1921) I.L.R. 44 Mad. 831 (P.C.) : 1921 41 M.L.J. 346: 48 I.A. 302 : A.I.R. 1922 P.C. 123.
Viswanatha Sastri, J., has observed in that judgment, at pages 222--223 thus:
I am referring to this aspect of the case, for it would introduce inextricable confusion in the administration of religious endowments if people professing to act in the interests of an idol or mutt are allowed to bring suits in the name of the idol or the institution, ignoring the manager or the head of the mutt who is living and functioning as such. As we are recognising the power of a de facto trustee to sue on behalf of an idol or a mutt, it is necessary that Courts should prevent this power from being abused or exercised fraudulently or collusively to the detriment of the trust by persons professing to act on behalf of and in the interest of the idol or mutt, behind the back of the de jure manager or head of the mutt. The law is clear that where there is a lawful shebait, dharmakartha or head of a mutt, he alone can bring the suits necessary for recovering possession of the property of the institution and otherwise protecting its interests and he alone is the proper person to represent it in a suit filed against the mutt, temple or idol, as the case may be; Prosanno Kumari Debya v. Golab Chand Baboo (1875) 2 I.A. 145 : 4 B.L.R. 450, and Jagadindra Nath Roy v. Hemantha Kumari Debi (1904) I.L.R. 32 Cal. 129 (P.C.) : 31 I.A. 203. Where there is a lawful shebait or manager, until he is removed or controlled by the Court he alone can act for the idol: per Rankin, C.J., in Surendrakrishna Ray v. Shree Shree Ishwaree Bhubaneswari Thakurani I.L.R. (1932) Cal. 54 affirmed on appeal by the P.C. in I.L.R. (1937) Cal. 447, Indeed the Privy Council has observed that in such cases the right of suit is really in the manager or shebait, though the processual law of the country allows for a suit in the name of the idol or the deity: see The Masjed Shahid Ganj v. S.G.P. Committee . Though as already stated, managers of Hindu temples are not trustees in the English sense, still, on the analogy of the co-trustees, if there are more shebaits or managers than one, they are deemed to constitute one single body, as it were, in the eye of law and all of them must normally be parties to a suit on behalf of or against the deity or the idol. If any of the managers are unwilling to be joined as plaintiffs or have themselves done acts prejudicial to the trust or otherwise precluded themselves from being plaintiffs, they should be made defendants : Rajendranath Dutt v. Shaik Muhammad Lal (1881) I.L.R. 8 Cal. 42 (P.C.) : 8 I.A. 135. As regards co-trustees, strictly so-called, they stand on a different footing from joint managers or shebaits, for, the property is vested in all of them, there is unity of title and possession and their interests are joint and indivisible. But having regard to the position and status of shebaits and managers of Hindu religious endowments and their relation to the endowed property, the legal title in which vests, not in the managers but only in the deity or the idol, the rule requiring all co-shebaits or managers to joint in an action on behalf of the deity or idol is not so inexorable or incapable of exception or relaxation as in the case of co-trustees strictly so called.
At page 224, he has observed:
There are observations of a general character in the other reported cases to the effect that all the co-shebaits or managers must join in a suit filed on behalf of the deity, whether as plaintiffs or defendants. While I agree that this should be the normal rule, I would, at the same time, express my respectful agreement with the following statement of the law by Biswas, J., in Iswar Shridhar Jieu v. Jahor Lal : AIR1945Cal268 .
As is, however, recognised in many of these cases and is in fact implied in the statement of the rule, it cannot be maintained as an absolute rule of law that all the co-shebaits must join in representing the deity. The rule is subject to exceptions, and circumstances may exist in which the deity may be validly represented by some only of the shebaits and even by a person who is not a shebait. Where a suit is a suit by the deity represented by some of its shebaits whether all should be joined as parties is often, in the last analysis, a mere question of procedure and expediency; the test is, whether or not, having regard to all the circumstances of the case, the interests of the deity may be said to be sufficiently represented.
See also Nirmal Kumar Banerji v. Jyoti Prasad Banerji I.L.R. (1941) Cal. 128.
Apart from the right of the idol or the deity to sue through its duly constituted shebait or trustee, or through its de facto manager, for recovery of property belonging to it. the worshippers have a right of suit in respect of the property of a deity or idol.
A similar question came up for consideration before a Full Bench of the Andhra Pradesh High Court in The Ongole Byragi Mutt v. Kanhayya (1959) 2 A.W.R. 294 : A.I.R. 1360 A.P. 98, where the managing trustee representing a mutt filed a suit and the other trustees were added as parties after the expiry of the period of limitation, and it was held that the suit was properly constituted even at its inception and that the addition of the other trustees is not a case of imperative necessity but is only a matter of convenience or expediency. There also, the observations of Biswas, J., in Iswar Sridhar Jieu v. Jahor Lal : AIR1945Cal268 , extracted in the judgment of Viswanatha Sastri, J., in Sankaranarayana v. Poovannatha Swami Temple : (1949)2MLJ171 , have been referred to and it has been held that the right to sue vested in the mutt and that the suits instituted by the managing trustees as representing the institution were even at the inception properly constituted.
5. Learned Counsel for the respondents has not shown that Ramaswami Naicker, the fit person appointed under Exhibit A-45, pending the scheme proceedings, was not competent to represent the first respondent in the prior action. Nor has he cited any decision contrary to the aforesaid Full Bench decisions. I therefore hold that the learned District Munsif has rightly held that Ramaswami Naicker properly represented the first respondent in the prior litigation which had culminated in the decision of this Court in S.A. No. 1576 of 1961, where it had been held that the first respondent had no title and that the deceased first defendant was in possession of the suit lands and entitled to the injunction and therefore the decision in the prior litigation constitutes res judicata.
6. In the view that I have taken on the question of res judicata, it is unnecessary once again to go into the question whether the first defendant had acquired title to the suit lands by prescription.
7. The Second Appeal is, therefore, allowed with costs. No. leave.