V. Sethuraman, J.
1. The appellant is the defendant in O.S. No. 445 of 1973 on the file of the Court of the District Munsif, Pararrakudi. The plaintiffs filed the suit for a permanent injunction restraining the defendant from interfering with the rights of the plaintiffs to be in joint management of the suit trust as joint hereditary trustees. The plaintiffs are three in number. The suit temple is known as 'Vazhivitta Ayyanarswami Koil'. According to the plaintiffs, it was a private temple founded by the ancestors of the plaintiffs during the 17th century and the properties were also endowed by the founden for the maintenance of the said temple. A trust was founded for the management of the said temple and its properties. After the death of the founder, his heirs were said to have been in management by hereditary succession as per the rule of primogeniture. The plaintiffs and the defendant are the descendants of the original founder. According to the plaintiffs, they have been the hereditary trustees of the said trust and they have been in joint management of the said temple as hereditary trustees. They claimed that in several Court proceedings, their right to manage the temple as joint trustees had been recognised. As the defendant claims to be in sole management of the said temple, the plaintiffs have filed the present suit for an injunction restraining the defendant from interfering with their right of joint management.
2. The defendant resisted the suit stating that the plaintiffs had never been in management of the suit temple as joint trustees, and that the defendant had been recognised by the Department of the Hindu Religious and Charitable Endowment as the hereditary trustee of the suit temple. According to the defendant his adoptive father had been in exclusive management of the suit temple as the sole trustee, and after his death it is only the defendant who has been in sole management of the suit temple. Since he had been recognised by the Department as the hereditary trustee, he claimed to have been submitting the accounts to the Department, and paying contribution and auditor's fee. He pointed out to the fact that the suit temple is a public temple and as there is a dispute as to whether the plaintiffs are the hereditary trustees of the suit temple he contended that the civil Court had no jurisdiction to try the suit. According to the defendant, only the Deputy Commissioner has the jurisdiction to decide the question of hereditary trustees under Section 63 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. It was also pointed out that even, on the footing that the plaintiffs and the defendant were the co-trustees, there could not be any injunction, against a co-trustee.
3. The learned District Munsif, who tried the suit held that the suit temple was a public temple and that the provisions of the Tamil Nadu Act XXII of 1959 applied to it. He further held that the defendant alone was in exclusive management and had also been recognised by the Department of the Hindu Religious and Charitable Endowments Department. He therefore held that the plaintiffs were not entitled to the relief of injunction. The learned District Munsif also went into the question as to whether the civil Court had jurisdiction to try the suit and held that the dispute in question would not come within the scope of Section 63 of the Act so as to be barred by it. He dismissed the suit.
4. The plaintiffs appealed, and the appeal came up before the learned Principal Subordinate Judge of Ramanathapuram at Madurai. In the course of the appeal, I.A. No. 317 of 1975 was filed for the purpose of amending the plaint and incorporating the relief for declaration that they are the joint trustees and that they are in joint possession of the suit temple. This petition was opposed by the defendant on the ground that if the amendment was to be allowed, it would alter the fundamental character of the suit, and consequently it would have to be dismissed in limine.
5. The learned Subordinate Judge, after going into the facts, came to the conclusion that the present suit did not come within, the ambit of Section 63 of the Act XXII of 1969, so as to oust the jurisdiction of the civil Court as contemplated under Section 108 of the said Act. He further held on, the basis of Exhibit A-23, which was a printed copy of the judgment in O.S. No. 14 of 1939 on the file of the District Court of Ramanathapuram at Madurai that there were four hereditary trustees for the suit temple and that the evidence also would bear Out that the plaintiffs represented the branches of three such hereditary trustees while the defendant represented the remaining branch. Therefore, he came to the conclusion that the plaintiffs were also the hereditary trustees and that they were entitled to be in joint management of the suit temple along with the defendant. Regarding I.A. No. 317 of 1975, the learned Subordinate Judge held that the proposed amendment would not in any way change the fundamental character of the suit and that it was not necessary to remit the suit to the Court below inasmuch as an issue had been framed to the effect whether the plaintiffs are the co-trustees along with the defendant and evidence had also been let in by both sides on this issue. Therefore, he held that the proposed amendment of the plaint could be ordered as prayed for by the plaintiffs. It is this judgment of the learned Subordinate Judge that is challenged in the present second appeal.
6. The first point argued on behalf of the appellant is that the suit is barred by Section 63 of the Tamil Nadu Act XXII of 1959. Section 63 of the Act in so far as it is relevant runs as follows:
(a) Subject to the rights of suit or appeal hereinafter provided, the Deputy Commissioner shall have power to inquire into and decide the following disputes and matters:
(b) Whether a trustee holds or held office as a hereditary trustee:
Section 108 of the Act provides as follows:
No suit or other legal proceeding in respect of the administration, or management of a religious institution or any other matter or dispute for determining or deciding which pro-vision is made in this Act shall be instituted in any Court of law except under, and in conformity with, the provisions of this Act.
The question to be considered is whether the present suit is one which relates to a dispute whether a trustee holds or held office as a hereditary trustee as contemplated by Section 63. Exhibit A-23 is a copy of the printed judgment of the learned District Judge of Ramanathapuram at Madurai (Mr. N.D. Krishna Rao, I.C.S. as he then was). That judgment came to be rendered, in a suit under Section 63(4) of the Madras Hindu Religious Endowments Act to set aside the order of the Board of Commissioners for Hindu Religious Endowments, Madras, dated 27th February, 1939 framing a scheme for the temple in question. In that judgment, two points came to be decided. One was that the suit temple was a public temple, and the other was that there shall be four hereditary trustees representing the respective branches of the family of the founder. In view of this decision, which has not been challenged in any further proceedings, it is clear that the defendant cannot lay Clair to a sole right to be in management of the properties of the trust. As the plaintiffs have already been declared to be the hereditary trustees in an earlier suit, the present suit cannot be said to be one for the purpose of deciding whether the trustee holds or held office as a hereditary trustee. The scope of the present suit is only for the purpose of restraining the defendant from interfering with the right of the plaintiffs to be in, joint management of the suit trust as joint hereditary trustees of the temples. To such a case, the provisions of Section 63 of the Act, in my opinion, do not apply.
7. The learned Counsel for the appellant drew my attention to a decision of this Court in Thiruvengada Varadachariar alias R. Varadachari v. Srinivasa : (1973)1MLJ266 . In that case, the suit was for recovery of possession of the plaint mentioned temple and the immovable properties belonging to the said temple, alleging that the plaintiffs were the hereditary trustees along with defendants 3 and 4 and that the second defendant's father had been requested to look after the temple and its properties in view of the disputes between the parties. After the death of the second defendant's father, the second defendant was requested, to look after the properties, and as he expressed his inability to do so, the plaintiffs requested the first defendant to look after the affairs of the temple and its properties on behalf of the hereditary trustees in the place of the second defendant. The first defendant accordingly assumed management and has been functioning as such agent ever since. Thereafter, a suit was filed. The suit was resisted by defendants 1 and, 2 on the ground, that as a matter of fact, the father of the third plaintiff himself had been appointed by the Hindu Religious and Charitable Endowments Board as a trustee. It was further contended that the first defendant himself was appointed, as a trustee by the Area Committee and subsequently he had been appointed by the Endowments Beard itself, and, the suit, was not competent as there was no question of hereditary trusteeship. It was held on the facts of that case that the suit was barred by Section 63 of the Act and that the only remedy open to the plaintiffs was to invoke the jurisdiction of the Deputy Commissioner under that section for declaration of their title as hereditary trustees1 and also for a declaration that the suit properties are not kattalai properties, but belong to the temple. In. my opinion, the above decision has no application to the facts of the present case, because in this case the plaintiffs had already a right to be in management under an earlier decree of a civil Court and, therefore, the present suit being for the purpose of a permanent injunction restraining the defendant from interfering with the right of the plaintiffs to be in joint management of the suit trust as joint hereditary trustees, there is no question of the bar under Section 63 of the Act operating.
8. In fact, in another decision of this Court in Rangayya Gounder v. Karuppa Naicker : (1971)1MLJ358 this Court has printed out that in a case where the plaintiff and the defendant claimed that they were entitled to be trustees of the temple and claimed to have exercised their right hereditarily, the substantive dispute between the parties was as to which of them is entitled to be in management. It was further pointed out that as the dispute centered round as to which of the rival claimants is entitled to celebrate the annual festival, such a dispute cannot fall within the ambit of Section 63 of the Art and as such the bar under Section 108 of the Act will not apply. In. the present case also, in my opinion, the plaintiffs having already established their right to be in management as hereditary trustees under an earlier decree and the suit being for permanent injunction restraining the defendant from interfering with the plaintiffs-right to be in joint management of the suit trust as joint hereditary trustees, the suit was not barred under Section 63 read with Section 108 of the Act. The bar under Section 63 operates against a suit for establishing a hereditary right and not against a suit for enforcing it.
9. The next question, that arises for consideration is as to how the rights of the parties are to be regulated for the purpose of enabling them to act as hereditary trustees in the present case. As far as the framing of a scheme is concerned, this has to be done only by the Deputy Commissioner for the Hindu Religious and. Charitable Endowments Department. Section, 64 of the Tamil Nadu Act XXII of 1959 provides for framing of a scheme by the Deputy Commissioner. Section 108 bars a civil Court from doing so. The parties are, therefore referred to the Deputy Commissioner for the purpose of getting a scheme framed so as to enable the joint management to be done in a peaceful and proper manner. If and when the petition is filed, the Deputy Commissioner, Madurai, will, I am sure, go into this matter expeditiously and dispose of the same within three months from the date of the filing of the petition.
The only remaining point is as to whether the lower appellate Courts acted properly in allowing I.A. No. 317 of 1975 without giving an opportunity as alleged to the defendant to place his case regarding the management o f the temple. Assuning that the defendant could have any legitimate grievance of the manner in which the lower appellate Court dealt with I.A. No. 317 of 1975. It is clear from the issues framed in this case that the question as to whether the plaintiffs were co-trustees along with the defendant was the subject-matter of an issue, and, therefore, the defendant could not be said to have been prejudiced by the manner which I.A. No. 317 of 1975 had been dealt with. I do not, therefore, find, any substance in. this submission so as to justify the matter being remanded to the Court below.
The second appeal is accordingly dismissed. There will be no order as to costs.