V. Sethuraman, J.
1. This appeal has been filed by the third plaintiff in O.S. No. 58 of 1969 in the Court of the Subordinate Judge of Vellore. The suit was filed for setting aside the order made by the Commissioner, Hindu Religious and Charitable Endowments, who is the first defendant in the suit. The plaintiffs, who are four in number, of whom the first plaintiff is now no more, are the periathanakars of Vallam Village. They claimed to be the hereditary trustees of Dharmaraja and Mangi Amman Temples, situated in the village on the basis that the forefathers were trustees in succession. There was an earlier suit in O.S. No. 375 of 1935 in the Court of the District Munsif, Vellore, in which Thanji Gundar, the father of the third plaintiff, was the plaintiff and in which he asked for his recognition as a hereditary trustee of the temple. The hereditory trusteeship was recognised. The said judgment was said to have been affirmed by the District Court and the second appeal filed in the High Court was dismissed at the stage of admission. In August, 1960, at the instance of the Assistant Commissioner, Hindu Religious and Charitable Endowments, Conjeevaram, there was a local enquiry with a view to appoint trustees. Nominations were invited for this purpose and coming to know of the proposed appointment of trustees, the plaintiffs preferred a petition to the Deputy Commissioner that they were the hereditary trustees of the Temple. The Deputy Commissioner dismissed the petition. The appeal preferred to the Commissioner shared the same fate. The present suit was filed for setting aside the order of the Commissioner.
2. The first defendant, the Commissioner of Hindu Religious and Charitable Endowments, in the written statement denied that the plaintiffs were the hereditary trustees and that O.S. No. 375 of 1935 and the appellate proceedings against the said suit did not recognise or affirm such hereditary trusteeship. It was also his case that the forefathers of the plaintiffs did not exercise any hereditary right of trusteeship over the Temple.
3. The learned Subordinate Judge framed the relevant issues and held that the plaintiffs were not the hereditary trustees and the order of the first defendant was not, therefore, liable to be set aside. The other issues were decided in favour of the plaintiffs. However, as the plaintiffs had failed in the main issue, the suit was dismissed. It is this dismissal that has brought about the present appeal.
4. Along with the said suit, another suit O.S. No. 118 of 1973 was filed by the present appellant as the plaintiff. However, it is unnecessary to go into that suit as the appeal against the said judgment appears to have been preferred to the District Court and it is said to be pending.
5. In the present appeal, the learned Counsel for the appellant contended that the Court below should have recognised the right of the plaintiffs to the hereditary trusteeship of the temple under consideration. This involves the consideration of what was decided in the earlier proceedings and also of the other evidence relevant to the point. The Judgment in O.S. No. 375 of 1935 dated 5th August, 1936 has been marked as Exhibit A-1 and it was by the then District Munsif at Vellore. The plaintiff in that suit, as already seen, is the father of the present applicant. He impleaded the present first plaintiff, Jayarama Goundar, and two others as defendants. That suit was for a declaration that the plaintiff was the rightful head of the Vannia community and that as such he was entitled to continue to officiate as the trustee of the Mariamman Temple and Dharmaraja Koil in Vallam Village and for an injunction restraining the 3rd defendant in the said suit from usurping the office. In the plaint in the said suit, it was stated that the plaintiff and defendants 1 and 2 by name Jayarama Gounder and Chinna Dharmaraya Goundar, were managing the said Temples and attending to the communal functions of the village for over 30 years, that the headship of the community is purely determined by heredity and primogeniture and not by elective or other principle and that the plaintiff had been unlawfully excluded from the office of trusteeship out of malicious and inimical motives. In their written statement, the defendants admitted that the Temples were public Temples, but contended that the periathanakars of the Vanniar community could not claim any right of management to the said Temples by their positions as such periathanakars and that the dharmakarthas for the Temples were chosen by the members of the public and were also liable to be removed. It was their further case that the father and grandfather of the 3rd defendant in that suit were the dharmakarthas and that the said 3rd defendant could not attend to the office for some personal reason. Their further case was that the plaintiff had, been removed at a public meeting and the 3rd defendant was appointed. It was contended that the plaintiff in the said suit had been appointed as a trustee only to fill up a temporary vacancy and not permanently or hereditarily or otherwise.
6. The learned District Munsif who tried the said suit held that the trusteeship of the plaint mentioned Temples vested in the periathanakars of the Vannia community, that the Vannias were the majority community in the village, and that there was no proof that at any time any other person or other community who had not been periathanakar had been trustee of the Temple. On a consideration of the entire evidence, the learned District Munsif found that the trusteeship of the Temples had vested in the periathanakars for over 40 years, more or less, and that human memory could not go beyond that and that members of the other communities had only been interested in the Temples by contributing for the festivals and not as trustees. The learned District Munsif did not however, accept the plea of succession to the office of periathanakar by the principle of primogeniture. He, however, dismissed the suits, as in his view, in order that the findings may be binding on the community, the plaintiffs could only sue the defendants in a representative capacity for themselves and on behalf of the villagers of the village and not in their individual capacity though they might have been described as periathanakars. This matter was taken on appeal to the then District Judge of North Arcot at Vellore in A.S. No. 264 of 1936. The learned District Judge agreed with the trial Court in its conclusion on the question whether the plaintiff was the hereditary trustees and whether the plaintiff had been validly removed from his office. In other words, it was held that the plaintiff was a hereditary trustee and that he was not properly removed. On the question whether the plaintiff was bound to sue the entire body of villagers, the learned District Judge did not agree with the finding of the learned trial Judge, as in his view, the plaintiff was only putting forward his individual right to obtain redress for the infringement of his rights. The result was that the plaintiff's suit was decreed with costs in the sense that he was found to be the hereditary trustee and that he was not properly removed. It appears that the matter was taken on second appeal to this Court and the second appeal was dismissed in limine.
7. The concurrent findings of the two Courts namely, the District Munsif's Court of Vellore and the District Court of North Arcot at Vellore, would go to show that the trusteeship of the Temples was governed by the hereditary principle. The learned Counsel appearing for the Commissioner, Hindu Religious and Charitable Endowments, however, contended that the said judgments cannot be relied upon against him, that he was not a party thereto and that, therefore, the question of the hereditary nature of the trusteeship would have to be independently established in the present proceedings. He further contended that the civil Court had no jurisdiction to go into the hereditary character of the trusteeship as the matter was within the exclusive jurisdiction of the authorities constituted under Madras Act II of 1927(The Madras Religious Endowments Act) and that the said judgments lacked force.
8. This leads to the question as to whether there was any exclusive jurisdiction vested in the authorities constituted under the Act of 1927 so that the matter could not have been agitated in civil Courts. The statute made distinction between excepted and non-excepted Temples. The excepted Temple was one where the right of succession to the office of trustee or the offices of all the trustees (where there were more trustees than one) was hereditary or where the succession to the trusteeship had been specifically provided for by the founder. See Section 9(5). Section 9(5) defined 'hereditary trustee' as meaning the trustee of a math, temple or specific endowment, succession to whose office, devolved by hereditary right or was regulated by usage or was specifically provided for by the founder, so long as such scheme of succession was in force. Section 84 provided that if any dispute arose as to whether an institution was a math or temple as defined in the Act, then such a dispute had to be decided by the Board and no Court in the exercise of its original jurisdiction could take cognizance of any such dispute. There was also a provision in Section 73(4) stating that no suit or other legal proceeding claiming any relief provided in the Act in respect of administration or management shall be instituted except under and in conformity with the provisions of the Act.
9. The scope of Section 73(4) has been considered in several cases. In Vythilinga Pandarasannadhi v. Temple Committee, Tinnavelly Circle : (1931)61MLJ815 , the planitiff sued to establish his right as hereditary trustee of a Temple. It was alleged that the Temple Committee in disregard of the plaintiff's hereditary right as trustee, had held that he had vacated office and had appointed another person as sole trustee of the Temple. The trial Court found that a suit of this character was barred by the provisions of the Act and that was the sole question which came up for decision before a Bench of this Court in the above case. The learned Judges, after referring to the earlier decisions, came to the conclusion that Section 73 of the Madras Hindu Religious Endowments Act II of 1927, (as amended by Act I of 1928), was no bar to the institution of a suit to establish a right of hereditary trusteeship of a Temple and for consequential reliefs. The words 'except as provided by this Act' in Section 73 of the said Act were understood to mean 'contrary to the provisions of this Act'. This decision along with the other subsequent decisions in which the same principle was adopted was followed in Anantheshwar Temple v. Vaikunta Bhakta : AIR1943Mad228 .
10. The same view was taken by a Bench of this Court reported in Avisomma v. Kunhali : AIR1957Mad674 . In that case, it was held that the section did not either expressly or impliedly bar the jurisdiction of a civil Court when the dispute was not with the Board but. between two private parties.
11. In the context of Section 93 of the Madras Hindu Religious and Charitable Endowments Act (XIX of 1951), the same question arose for consideration and the matter reached the Supreme Court in Vedagiri Temple v. I.P. Reedy : 1SCR280 . In that case the trustees of the Temple filed a suit for, rendition of accounts against the ex-trustees in respect of their management of the Temple. The trial Court and the first appellate Court directed rendition of accounts for a period of six years prior to the plaintiff's taking possession of the Temple. The High Court of Andhra Pradesh, held that Section 93 was a bar to the maintainability of a suit. In dealing with this question, Subba Rao, CJ., observed at page 287 thus:
To state it differently, the said phrase ('except under and in conformity with the provisions of this Act') does not impose a total bar on a suit in a civil Court but only imposes a restriction on suits or other legal proceedings in respect of matters for which a provision is made in the Act. Any other construction would lead to an incongruity, namely, there will be a vacuum in many areas not covered by the Act and the general remedies would be displaced without replacing them by new remedies.
Referring to Section 93, the learned Judges quoted from the judgment of Horwill, J., reported in Anantheshwar Temple v. Vaikunta Bhakta : AIR1943Mad228 , and observed at page 289 thus:
Section 93 of the Act enlarges the scope of Section 73(4) thereof. It bars not only suits or legal proceedings in respect of administration or management of religious institutions but also in respect of any other matter or dispute for determining or deciding which provision is made in the Act... It follows that Section 93 will apply only to matters for which provision has been made in the Act. It does not bar suits under the general law which do not fall within the scope of any section of the Act.
Being a suit to establish a private right, O.S. No. 375 of 1935 could be entertained and decided by a civil Court. The decree would be valid and within jurisdiction.
12. During the course of arguments, reference was made to a decision in Sri Venkatramanaswamy v. Vadugammal : (1974)1MLJ431 . In that case, a suit was filed by a trustee acting for the Deity in a Temple for a declaration of title to certain properties, for possession and for past and future mesne profits. The defendant raised an objection that the civil Court was barred from trying the suit by virtue of the provisions contained in the Tamil Nadu Hindu Religious and Charitable Endowments Act (XIX of 1951). Reference was made to Sections 57 and 93 of the said Act in support of the objection. This Court held that the aim of the Act was not to exclude the jurisdiction of the civil Court, but to facilitate proper administration of religious institutions and that the preponderance of judicial authority was that the civil Court was not barred in respect of a relief which could not be granted by the Deputy Commissioner for Endowments and that in such a suit, the civil Court would have jurisdiction to decide incidentally the issues which were within the jurisdiction of the Deputy Commissioner. In so far as it was held in this case that the civil suit is not barred in respect of a relief which could not be granted by the Deputy Commissioner, the decision is in line with the earlier decisions of this Court referred to above.
13. However, this decision seems to take the view that there was some inconsistency between the two decisions of the Supreme Court in State of Madras v. Kunnakudi Melamatam (1966) 2 M.L.J.. 13 : (1966) 2 S.C.J. 175 : (1966) 2 A.W.R. 13 : A.I.R. 1960 S.C. 1570 and V.L.N.S. Temple v. I. Pattabhirami : 1SCR280 . Some doubt is also cast on the decision of another Bench of this Court in Thiruvengada Varadachariar v. Srinivasa lyengar : AIR1973Mad281 . As the matter was alluded to, these cases may be considered at this stage only to examine whether any different principle applies here.
14. In State of Madras v. Kunnakudi Melamatam (19661) 2 M.L.J. 13 : (1966) 2 S.C.J. 175, the suit was filed by the head of the institution claiming two different reliefs, namely, (1) an injunction restraining the levy of , contribution and audit fees under Act II of 1927 and (2) an injunction restraining the levy of contributions and audit-fees under Act XIX of 1951. When the matter reached the High Court, it was held that the institution was not a mutt within the meaning of Act XIX of 1951 and that, therefore, no contribution was payable under either of the two Acts. In the Supreme Court, one of the disputes was whether the institution was a religious institution within the meaning of Act XIX of 1951 in respect of which specific provision was made in Sections 57, 61 and 62 for adjudication by the authorities specified in the Act. It was held that the present suit could be decreed with reference to the prayer for injunction restraining (a) the levy of contributions and (b) the authorities from taking any coercive steps in pursuance of any demands against the plaintiff under that Act. The question was considered from the stand-point of the two enactments. As far as Act XIX of 1951 was concerned, it was held that specific provisions had been made in Sections 57, 61 and 62 for determination of the disputes as to whether the institution was a religious institution or not. It was, therefore, held that the suit which was not brought under and in conformity with Section 62 was barred by Section 93. Taking up the question in the context of Act II of 1927, it was held that there was an earlier adjudication that the institution was a religious institution and the said adjudication supported the claim of the plaintiff in that case. Hence, in the light of the decision already given under Madras Act II of 1927 by the competent authority, it was held that the plaintiff was entitled to the relief of injunction. The suit in so far as it related to the relief under Act XIX of 1951 failed only because specific provision had been made in the statute for the purpose of resolving the contraversies of the nature put forward in that case.
15. The later decision of the Supreme Court in V.L.N.S. Temple v. I. Pattabhirami : 1SCR280 dealt with a wholly different situation, namely, a dispute inter se between the trustees in the matter of accounting. It was held that in the absence of any specific provision having been made in the Act for such accounting, there was no question of the exclusion of the remedy before the civil Court. If I may say, so, with respect, there is no inconsistency and the two decisions are on two different aspects or operate on two different fields as brought out above.
16. The decision in Thiruvengadu Varadachariar v. Srinivasa Iyengar : AIR1973Mad281 , has been doubted as if it was inconsistent with the Kunnakudi case : AIR1965SC1570 . That was a case where there was an assertion of title to an office on the hereditary principle. There was no inter se dispute. The defendant denied that the office was hereditary, and he claimed the source of his title to the office by an appointment by the Endowments Board. It was held that the civil Court did not have jurisdiction in such a matter because there was a specific provision made in Section 63 of Tamil Nadu Act XXII of 1959 for that purpose. So long as there is a specific provision, in the light of the decision of the Supreme Court, there can be no exception to the application of the principle that the suit would be barred in a civil Court.
17. In the present case, at the time when the suit was filed in 1935, the Act which held the field was Madras Act II of 1927. In that Act, no specific provision had been made for the determination of disputes by a trustee against his co-trustees, by the Board or any other authority. Specific provisions were subsequently made in the later enactments of 1951 and 1959. In these circumstances, there can be no objection to resort to the civil Court in that case. Further, what was urged in the particular case was the attack on the personal right of the plaintiff as regards his right to be the hereditary trustee in a temple by the other persons. It was an individual right which was being agitated and, therefore, on the principle of the decisions already adverted to, this suit could only have been filed in the civil Court and the matter could not have been taken up 'before any other authorities constituted under that Act. The determination of the question whether the trusteeship was hereditary was incidental and was within jurisdiction.
18. The learned Counsel for the 1st respondent then contended that the said decision could not be binding on him as he was not a party thereto. It is true that he was not a party to such a suit. It has been held by a Bench of this Court in T.P. Attimuthu Gounder v. A.K. Parvathammal (197 ) 87 L W. 562, that the non-joinder of the Commissioner in a case like this would not entail the dismissal of the suit filed under Section 70 of the Act for setting aside the order of the Commissioner. That was a case in which rival claims were being agitated before the Court and the Commissioner had not been impleaded as a party. If he was not a necessary party, his absence cannot invalidate the decree. Further, there was no office of Commissioner available at the time when the said decision was rendered by the civil Court in 1935. The Commissioner could not have therefore, been impleaded in the said suit. Even independently of the above, the judgment would be in relation to a fact in issue and as such would be relevant for consideration in the light of Section 43 of the Indian Evidence Act. Therefore, even if the judgment is not binding on the Commissioner, still the existence of the judgment need not be ignored for our present purpose. After all, two Courts have examined the question in the light of the available evidence, and the adjudication would be a relevant fact.
19. The learned Counsel then contended that there was no usage in the present case which would qualify the plaintiffs for being hereditary trustees. It was pointed out that merely because the plaintiffs' father was a hereditary trustee, it did not follow that there was a hereditary principle applicable to the trusteeship to the particular Temple. The question of usage in similar context has been considered by this Court in Deputy Commissioner of Hindu Religious and Charitable Endowments Board v. Sidhdhivinayaga Mudaliar (1970) 83 L.W. 720. In that case, there was an appointment of trustees under a trust deed, dated 14th May, 1900 in respect of the management of the suit Temple. Bava Krishnaswami had described in the document as to how he got the trusteeship. He had been appointed by two persons who were the nattamaikaras of the Sengundar Community of that particular village in which the Temples were situate. The subsequent trusteeship continued in accordance with the provisions made in the trust deed of 14th May, 1900. This Court took the view that at any rate from 1900, there was evidence of usage of the trusteeship going to the nattamaikars of the particular community and that, therefore, the plaintiff in that suit could be declared to be the hereditary trustee. There also an order had been passed by the Commissioner, Hindu Religious and Charitable Endowments Board, and the said order was set aside and the plaintiff's right was recognised. In the present case, taking into account the evidence discussed in Exhibit A-1 and the appellate judgment, it is found that the trusteeship had devolved on hereditary principle for a period of 40 years prior to that judgment. This takes us to 1895 or earlier. Having regard to the long and continued observance of the usage for more than half a century, it is clear that the plaintiffs could very well support their claim to be hereditary trustees. In these circumstances, the suit filed by the plaintiffs will have to be decreed as prayed for and it is ordered accordingly. The appeal is allowed. There will be no order as to costs.