G. Ramanujam, J.
1. The appellant herein is the Executive Officer of the Sri Ranganatha-swami Devasthanam, Srirangam who has been appointed as the fit person to manage the suit trust. An extent of 6-65 acres of wet lands in survey No. 229/2 of Thirumanamedu village originally belonged to one Sesha Iyen-gar. Under Exhibit A-1 dated 22nd July, 1980, Sesha Iyengar and his sons, while dividing all their joint family properties, set apart the said 6-65 acres of land for the purpose of performing the Hamsa Vahana Mandagapadi to Lord Sri Ranganatha once in three years on Boopathi Tirunal of Sri Ranganatha which falls on the second day of the month of Thai. As per the said partition deed, Sesha Iyengar during his lifetime, and after his death his eldest surviving male descendants had been managing the said property and conducting the Mandagapadi from and out of the income therefrom once in three years. Subsequently disputes arose between the members of Sesha Iyengar's family. The result was that proceedings were initiated suo motu by the Deputy Commissioner, Hindu Religious and Charitable Endowments under Section 64(1) of the Hindu Religious and Charitable Endowments Act, 1959, hereinafter referred to as the Act, for framing of a scheme and for the appointment of a fit person during the pendency of the scheme proceedings. In those proceedings the Executive Officer, Sri Ranganathaswami Devasthanam, Srirangam has been appointed as the fit person under Exhibit B-1 M.P. No. 16 of 1968. Proceedings for framing of a scheme are still pending. Aggrieved against the order appointing the fit person, the respondent herein filed O.S. No. 68 of 1969 on the file of the District Munsif, Tiruchirapalli.
2. His case was that the trust in question is a private trust, that the senior-most male member of the family is entitled to be in possession of the land and perform the Mandagapadi that as such the appointment of a fit person by the Deputy Commissioner is without jurisdiction and that, therefore, he is entitled to a permanent injunction restraining the fit person appointed by the Deputy Commissioner from taking possession of the lands and his performing the Hamsa Vahana Mandagapadi from the income therefrom .
3. The appellant resisted the suit contending that the trust in question is a public trust, that for the last two decades there has been submission to the jurisdiction of the endowments department by the persons in management of the said public trust, that in any event the suit is barred by the provisions of the Act and that, therefore, the appointment of a fit person had been validly made and there is no question of issuing an injunction against the fit person.
4. The trial Court, on a consideration of the evidence adduced in the cane found that though the trust in question is a private one, the suit cannot be maintained as there has been submission to the jurisdiction of the Endowments Department by persons in management of the trust and therefore the plaintiff-respondent has to resort to the remedies provided under the Act. On appeal by the plaintiff, the lower appellate Court held that as the trust in question is a private one, the provisions of the said Act are not applicable to it and that the mere fact that some of the descendants of the original founder Sesha Iyengar submitted to the jurisdiction of the Endowments Department will not constitute a bar for the present suit. In this view, the lower appellate Court decreed the suit.
5. In this second appeal, Mr. Gopalaswami Iyengar, learned Counsel for the appellant questions the findings of both the Courts below that it is a private trust. He also questions the view of the lower appellate Court that the provisions of Tamil Nadu Act XXII of 1959, will not bar the suit. According to the learned Counsel, the trust in question comes under the definition of 'specific endowment' as defined in Section 6(19) of the Act, that, therefore the said trust has to be governed by the provisions of the said Act, and that the decision of the Courts below that it is a private trust cannot at all be sustained. It is also pointed out that at an earlier stage proceedings were initiated in the year 1944 for the framing of a scheme under the Hindu Religious Endowments Act, 1927, that in those proceedings it has been specifically held by the Endowments Board that the trust is a public trust falling within the definition of 'specific endowment', and that the said decision having become final, it is no longer open to the respondent to contend that the trust in question will not come within the purview of Act XXII of 1959.
6. In this case the partition deed Exhibit A-1 under which the suit property has been set apart for the performance of the said Mandagapadi, treats the property as having been dedicated or endowed for a Kattalai. The relevant portion of Exhibit A-l is as follows:
The above extract indicates that the property has been dedicated to the charity winch is the performance of the Mandagapadi. The above recitals in Exhibit A-1 have been construed by both the Courts below as not creating an endowment or constituting a complete dedication. According to them a charge alone! is created over a portion of the income from the property leaving the balance of the income to be used for the maintenance of the members of the family. I am not able to agree with the view taken by both the Courts below that there is no dedication or endowment of the suit property for the Mandagapadi and that the dedication is only partial in that a charge is created in respect of the income from the property for the specified purpose of conducting the Mandagapadi. I am also not inclined to accept the view of the Courts below that the beneficiaries under the trust are only members of the family and not the general body of worshippers in the temple. A reading of the document, Exhibit A-l as a whole would indicate that the entire suit property has been set apart for the purpose of defraying the expenses of the Mandagapadi, that the said land cannot be partitioned at any time and it has to remain as a trust property, and that none of the members of the family nor their descendants can deal with or encumber the same. A reading of Exhibit A-1 also suggest that the net income from the property, after paying the public charges has to be spent for the Mandagapadi which has to be performed once in three years. There is no provision that if there is any balance of income after defraying the expenses of Mandagapadi, the members of the family can have the benefit of the same. I do not see any justification for the view taken by the Courts below that the entire income is not contemplated to be spent for the Mandagapadi. In my view the entire corpus has been dedicated, and no right has been reserved for the members of the family except the right of management of the property and the right to conduct the Mandagapadi out of the income therefrom. It is also not possible to agree with the view of the Courts below that merely because the family members are entitled to certain honours at the time of the performance of the Mandagapadi, the beneficiaries are the members of the family alone. The performance of the Mandagapadi is for the benefit of the entire worshipping public. The mere fact that the document does not refer to the quantum of the income and the expenditure necessary for performing the Mandagapadi cannot, by itself indicate that the persons who created the trust wanted to reserve the benefit for the family in the balance of the income, if any, after defraying the expenses of the Mandagapadi. Further, the lower appellate Court has given a somewhat curious reasoning to hold that it is a private trust and the reasoning is this: The eldest member of the family is to manage the property, receive the income and perform the Mandagapadi and he is under no obligation to account for the income received and the amount spent for the festival. There is no scope for the expansion of the charity and there is no provision dealing with the surplus income. As already pointed out, the document does not say that there is any balance income after defraying the expenses of Mandagapadi, that will go to the benefit of the members of the family. Therefore it has to be assumed that the income from the trust property will have to be spent only for the performance of the Mandagapadi. If there is a surplus income in any particular year, the Mandagapadi has to be conducted in a grand scale. It must also be remembered that the document does not provide any maximum limit for the expenditure to be incurred in connection with the performance of the Mandasrapadi. Therefore one has to naturally assume that the entire expenditure has to be spent only for the performance of the Mandaeanadi. The Courts below have also proceeded on the basis that there is no divestiture of ownership in the property and there is no dedication in favour of Lord Ranganathaswami. Even assuming that there is no dedication in favour of Lord Ransrana-thaswami, there has been a dedication for performance of religious charity and such Medication for a specified object of a religious or charitable nature is recognised in law.The Courts below are not therefore right in saying that there is no divestiture of ownership. Exhibit A-1 clearly sets apart the suit property as the property the income of which has to be spent for the purpose of the Mandagapadi in the temple of Sri Rangana-thaswami and it is also made clear that the property set apart is and the members of the family or their descendants have no right over the property except to collect the income therefrom and spend the same for the Mandagapadi. Whoever is in possession of the property and conducts the Mandagapadi should be taken to be a trustee and therefore there is a complete divestiture of the property under Exhibit A-1. The entire reasoning of the Courts below on this aspect of the case is not possible of acceptance.
7. The Courts below have relied on the decision in Muthu Pillai v. Arumugathammal : (1970)1MLJ349 in support of their stand. But I do not see how that decision can be applied to the facts of this case. In that case there was a gift of a property for the worship of an idol and the deed contained a Clause that in the event of there being a surplus after meeting the daily worship of the idol, it should be applied for the support of the family. The Court held that the property was only burdened with a charge and there was no absolute dedication. As already stated, in this case, there is no provision for dealing with the excess income and the members of the family are not to derive any benefit from the trust property or income therefrom. The entire income from the property has been specifically earmarked for the performance of the Mandaeapadi. As there is no beneficial interest granted to the members of the family, it is not possible to apply the said decision and say that in this case the property has only been subjected to a charge for the performance of the Mandaganadi. The decision in Commissioner of Hindu Religious and Charitable Endowment, Madras v. Boalavaraia Santhiappa Mandagapadi (1972) 85 L.W. 434 appears to be in point. In that case on endowment was created providing that the income from the property endowed to Sri Subramaniaswami and Meenakshisundare-swaraswami was to be utilised for receiving the Utsava Vigraham on Panguni Uthiram Thirukalyanam day at the Mandapam, where the deities were received with honours and after the deities leave the Mandapam, Brahmins have to be fed. The trustee of the said endowment filed a suit contending that the suit property constituted neither a religious endowment nor a religious institution so as to attract the provisions of the Act and that it is not liable to pay audit fee under Section 92 of the Act. It was held that though the endowment will not constitute a religious institution such as a Math, temple of a specific endowment, it will be a religious endowment which is defined as any property belonging to or given or endowed for the support of Maths or temples or given or endowed for the purpose of performance of any service or charity of a public nature connected therewith or of any other religious charity. It was observed in that case that the performance of Mandagapadi to the Utsava idol taken 'from Meenakshisundare-swarar temple is a purpose connected with the temple, though the service is not done in the temple and therefore the endowment is a religious endowment attracting the provisions of the said Act. In this case Mandagapadi service is done inside the temple premises while the deity is taken in procession. The performance of Mandagapadi on the second day of Boopathi Thirunal for Lord Rangana-thaswami in the month of Thai is a purpose connected with the temple and hence the endowment created for performance of certain services while the deity is taken in procession inside the temple will be service done in the temple. In this case it is not disputed that the performance of Mandagapadi on the Boopathi Thirunal on the second day of Thai is a purpose connected with the temple and that the income from the suit property has to be spent in connection with the said festival.
8. The learned Counsel for the respondent, however, draws my attention to a decision of this Court in Sri Kalldagar Trust v. V. Maruthamalai Ambulant. (1959) 72 I-W 646 In that case an endowment was created in connection with the Gbitrai Pournami Festival in Kallalagar temple taking place once in every year. Provision was made in the trust deed for construction of a mandapam and a mandagapadi was directed to be performed when the deity is taken from Alagar temple to Madurai Town where the pournami festival is conducted on the sands of the Vaigai river. It was held in that case that the Mandagapadi is not an integral part of the festival of the temple, that it was in no way connected with the festival and that the endowment for the conduct of such worship cannot be a specific endowment and that it should be treated only as a private one. But in that case the Mandagapadi was not performed inside the temple but it was done while the deity was taken in procession from Alagar temple to Madurai Town a private Mandapam constructed by the donor himself. But in the case on hand the Mandagapadi is being performed in a Mandapam belonging to the deity and inside the temple premises. Therefore it should be taken to be a service in the temple.
9. This conclusion of mine is fortified by the fact that every year the temple prepares a thittam and calls upon the persons in management of the suit property to meet the expenses as mentioned in the said thittam. Exhibits A-18 to A-23 are the thittams prepared for some of the years during 1948 to 1960. The said expenditure statements which are given beforehand to the persons in management of the trust refer to the expenses of items such as fire works and the decoration of the Mandapam and thirumanjanam of the deity etc. The Mandagapadi is performed when the deity goes in procession in Hamsa Vahanam. The furnishing of statements of expenditure beforehand by the Devasthanam indicates that the expenditure is met by the Devasthanam and the trustee who is in charge of the suit property was to reimburse the amount. It has not been shown by the respondent that the performance of Mandagapadi is in the nature of a special pooja performed to the deity by the founder's family. From the recitals in the document and the evidence on record if appears that Hamsa Vahana Mandagapadi festival is one of the festivals conducted in the temple every year on the second day of Boopathi Thirunal in the month of Thai and the family of the founder had undertaken to meet the cost of performing the said Mandagapadi festival once in three years. In this view of the matter it has to be taken that the Mandagapadi festival for which the property has been endowed by the family of the respondent is a religious service rendered in the temple. This will clear attract the definition of 'specific endowment'. 'Specific endowment' has been defined in Section 6(19) as follows:
Specific endowment means any property or money endowed for the performance of any specific service or charity in a math or temple, or for the performance of any other religious charity, but does not include an inam of the nature described in Explanation (1) to Clause (17). ....
Admittedly in this case the property had been endowed for the performance of a service in a temple and the endowment is not of any specified income from a property or any specified amount but the property itself. Once it is a specific endowment, a scheme can be framed by the Deputy Commissioner, Hindu Religious and Charitable Endowments under Section 64(1) read with the explanation thereto which refers to a specific endowment attached to a temple.
10. The learned Counsel for the appellant also contends that in any event in O.A. No. 229 of 1944 the Board of Commissioners for Hindu Religious Endowments, Madras acting under the provisions of Madras Act II of 1927, as amended in 1945, had held that the trust is a specific endowment and therefore the Board had jurisdiction to frame a scheme in relation thereto and that the said decision not having been challenged by filing a suit, the same should be taken to have become final and that the said decision will bar the present suit. In O.S. No. 229 of 1944 an application was made for framing of a scheme of administration for this endowment. The said application for framing a scheme was resisted by the person in possession of the endowment on the ground that the trust created by Sesha Iyengar was a private trust not coming within the scope of Madras Act II of 1927, and, therefore, an application for framing a scheme under Section 57 of that Act is not competent as the temple to which the Kattalai is attached is a notified temple. Dealing with this objection the Board of Commissioners expressed:
Exhibit A is the partition deed by which the endowment was created by Sesha Iyengar in 1890. The recitals therein are quite clear; they make an absolute dedication of the properties mentioned in schedule 10 to the kattalai in question. It is also expressly stated therein that that the family do not have any rights to the property. The object of the endowment is the performance of festivals in temple to which the provisions of the Madras Hindu Religious Endowments Act apply. The said temple is a public temple. The festival is one in which all members of the public are interested. It is therefore futile to contend that the endowment is a private trust and that the Act does not apply. It may here be mentioned that' the first respondent has in his deposition before the Assistant Commissioner, Hindu Religious Endowment, Trichy admitted fairly well that after meeting the expenses of the kattalai, the surplus cannot be appropriated for private use.
From the above extract it will be clear that the Board of Commissioners proceeded on the basis that this is a kattalai attached td the temple and therefore if is a specific endowment. This order has not been challenged by any of the descendants of Sesha Iyengar. The learned Counsel for the respondent would say that since ultimately no scheme was framed the decision was not challenged by filing a suit. It is true, no scheme was settled in those proceedings as the person in management of the trust agreed to carry out the directions of the Board in the matter of management of the properties. That will not, however, mean that the decision rendered by the Board that the suit property is a kattalai attached to a temple has become inoperative. So long as that decision remains unchallenged, that will constitute a bar for the present suit. Though that was a decision rendered by the Board of Commissioners in proceedings for the framing of a scheme, it should be taken to be a decision under Section 84 (1) as amended in 1945 as that is only the provision under which the Board is empowered to decide a dispute as to whether a particular institution is a specific endowment or not. Sub-section (2) of Section 84 of Act II of 1927 says that a trustee affected by a decision under Sub-section (1) may within one year apply to the Court to modify or set aside such decision and subject to the result of such application, the order of the Board shall be final. In this case, even though a decision has been rendered by the Board that the suit trust is a specific endowment, the persons affected by that decision have not chosen to take steps to modify or set aside that order. Thus the order passed by the Board has become final. The respondent, therefore, cannot how in these proceedings challenge the jurisdiction of the Hindu Religious and Charitable Endowments Board to initiate proceedings for the framing of a scheme in view of Section 108 of Act XXII of 1959, which says that 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 provision is made in this Act shall be instituted in any Court of Law, except under, and in conformity with, the provisions of this Act. Definition of religious institution includes a specific endowment and the present suit is not a suit filed in conformity with the provisions of the Act which provides for filing of a suit only in cases coming under Section 70 of the Act. The present suit has not been filed under Section 70. Hence the suit should be taken to be barred by Section 108.
11. In this view, the judgment of the lower Appellate Court is set aside and the second appeal is allowed. The suit O. S. No. 68 of 1969 will stand dismissed. There will, however, be no order as to costs.