Nagalla Satyanarayana vs Tummala Nagaiah and Another

Viswanatha Sastri, J.—The Plaintiff whose suit has been dismissed by the learned District Judge of Guntur is the Appellant in this appeal. . He sued as managing trustee of Ramalingeswara swami at K.avur, Remalle taluk, Guntur District, for the removal of the IOT Defendant from the management of the for vesting the management of the temple properties in the Plaintiff for directing the .nt to render an account of his management and pay over to the trust the sums in respect of which he is found accountable and for a direction that the Plaintiff should be put in possession of the temple properties and record after removing the 1st Defendant from possession.

In the plaint it was alleged that the Plaintiff was the managing trustee of the temple and that the 1st Defendant was the previous managing trustee and he was continuing to function as the de-facto trustee of the temple. The Teamed District-Judge held that the suit had. not been instituted with the previous sanction of the Hindu Religious Endowments Board required u/s 73 (1) of the Hindu Religious Endowments Act. Exhibit A-l is a telegram, dated. 30th December, 1948, purporting to have been sent by the Hindi Religious Endowments Board to the Plaintiff and it runs in these terms:

Permission receiver application filing accord.

There is no reference in this telegram to-suit claiming the reliefs specified in Section 73 (1)(a), (b), (d) and (e) of the Act. Section 73, Clauses (1) to (4), have been substituted for Section 92 of the CPC of 1908. The suits previously filed with the consent of the Collector or the Advocate-General u/s 92 of the CPC have to be filed u/s 73 of the Hindu Religious Endowments Act when they relate to religious endowments governed by the Act. The object of Section 73 in requiring the previous sanction of the Board for the suit is to restrict individuals from free access to Courts in order to ventilate their private grievances and to prevent unnecessary harassment of trustees of religious endowments. It has been held, under the corresponding provisions of Section 92, CPC Code, that the consent of the Advocate-General or the Collector was a condition precedent to the institution of the suit to which such consent related. If, therefore, no consent had been given before the institution of the suit, the suit must be dismissed or them.

Plaintiff may withdraw the suit with liberty to bring a ''fresh suit, The defect of want of sanction cannot be rectified after the institution of the suit - vide Go-pal Dei v. Kanno Dei, ILR 2G All 102 (A) and Tricumdas Mulji v. Khimji Vallabhdass, ILR 16 Bom 626 (33). The same principle should govern the interpretation of Section 73 (1) of the Madras Hindu Religious Endowments Act. The language of that section-is that "any person having interest and having 1 obtained, the consent of the Board" may institute a suit to obtain any of the reliefs specified in Clauses (a) to (e) of S. 73 (1). The consent of the Board is therefore a pre-requisite to the maintainability of a suit claiming any of the reliefs specified in Section 73 (1) Clauses (a) to (e). The point is further emphasised by Section 73 (4) which provides that no such or other legal proceeding claiming any relief provided in this Act in respect of such administration or'' management shall be instituted except under and in conformity with the provisions of this Act. We are therefore unable to accept the contention of the learned advocate for the Appellant that even though the consent of -the-Board has not been obtained before the suit was instituted, it is open to the Plaintiff to obtain such consent at this stage, if an adjournment of the hearing of the appeal is granted to him.

The next contention of the learned advocate for the Appellant is that Section 73 (1) has no application to suits instituted by trustees for the removal of other trustees who are impleaded as Defendants to the suit and for an account of their management. In our opinion, there is no authority for this proposition and the expression "any person having an interest" in Section 73 (1) is wide enough to include trustees of the institution. It has been so interpreted under the corresponding provisions of the CPC in ILR 16 Bom 626 (B) and T.A. Balakrishna Odayar and Another Vs. Chakravarthy V. Jagannada Chariar and Others, (C).

It was further argued that since the contesting Defendant was only a de facto trustee 0; the temple according to the allegations in the plaint the case did not fall within Section 73 (1). This argument is untenable in view ex the definition of trustee in Section 9 (13) of the Act as including a person who is liable as if he were a trustee. Therefore a de facto trustee is aI a trustee; within the meaning of the definition in Section 9 (13).

The learned advocate for the Appellant has drawn our attention to the decision in Rendall v. Blair, (1890) 45 Ch D 139 (D). in support of his contention'' that the consent of the Hindu ReligiouS Endowments Board is not a pre-requisite, to the maintainability of a suit u/s 73 Sections 10 and 17 of 17, Victoria, Chapter 137, which had be interpreted by the Court of Appeal in the decision cited above were couched in terms widely, different from those of Section 73 (1) of the Act. ere. was nothing in B. 17 of that Act requiring, consent of the Charity Commissioners before infringing the action and its language was wide tough to admit of a procurement of the consent ending the action. Lastly, it was contended by learned advocate for the Appellant that falls within Section 73 (5) of the Madras Hindu, Religious Endowments Act and therefore no sanction u/s 73 (1) was required. This is a falla jd as argument. " If any of the reliefs specified in Section 73 (1) is liked for against the trustee or a de facto trustee the religious endowment, then the sanction of the Board is essential. If, however, a trustee of temple or of a Kattalai sues to recover a property belonging to the temple or money payable to the temple by strangers, then consent" of the Board is not required u/s 73 (1). Such a suit should be maintained in the ordinary Civil Courts and the jurisdiction of the Courts to entertain such suits would be governed by the provisions of the Code of Civil Procedure. This suit is not a case contemplated by Section 73 (5) of the Act.

For these reasons, we are of opinion that the decision of the Court below is correct and that this appeal