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Judgment
Panchapakesa Ayyar, J.—This is a petition filed by one Ramaswami Ambalam, the first plaintiff in O.S. No. 18 of 1950, on the file of the
District Judge of Ramanathapuram, to withdraw that suit to the file of this Court under Article 228 of the Constitution of India, and either dispose
of the suit here itself or determine the question of law covered by the additional issue framed in the suit by the District Judge, Mr. P. N.
Ramaswami, as he then was, on 4th April 1951 in LA. No. 86 of 1951, an application for amendment of the plaint filed by the plaintiffs, adding a
contention that the scheme framed by the Hindu Religious Endowments Board, Madras (1st defendant), u/s 57 of the Hindu Religious
Endowments Act, regarding the suit temple (Sri Koppudanayagi Amman temple of Karaikudi, with an income of thirty thousand rupees a year),
under the orders of the Federal Court in App. Suit No. 7 of 1948, was null and void as the entire Hindu Religious Endowments Act, and especially
Section 57 thereof, was ''ultra vires'' of the powers of the Legislature, as it offended Articles 15 and 26 and other provisions of the Constitution of
India, regarding Fundamental Rights, by discrimination against Hindus alone by subjecting their endowments alone to regulation and control by
Government officers and Corporations, leaving Muslims, Christian, Parsi, Jewish and other endowments unaffected, and by interfering with the
freedom of the Hindus to manage their own religious institutions in their own way without interference by politicians and legislators and officials not
so well acquainted with Hindu beliefs and usages.
This petition is vigorously opposed by the Hindu Religious Endowments Board and two out of the three trustees, representing the two warring
groups of Nagarathars and Natters, on various grounds, like the scheme not haying been framed u/s 57 of the Hindu Religious Endowments Act
but only under the orders of the Federal Court in Appellate Suit No. 7 of 1948; Article 228 not applying, as there is no substantial question of law
involved, as contemplated by it; such question, even if it is involved, not being necessary to be decided for disposing of this suit; the motive of the
plaintiffs being only mercenary, and not religious or pious; the appellate side having no jurisdiction to entertain the petition, as it involves the trial of
a suit here and can be filed only on the original side; and the need to set aside the direction of Satyanarayana Rao and Raghava Rao, JJ., regarding
the non-functioning of the Board of Trustees till the suit is disposed of, in then order dated the 12th February 1951, as the basis of that order was
the consent of the parties'' in the belief that the orders of the learned Judges to the District Judge, Ramanathapuram, to dispose of the suit before
the summer recess, would be carried out and not frustrated by the selfish and mischievous and dilatory tactics of the plaintiffs, in case Article 228 is
held to be applicable and the suit is withdrawn to this Court.
I have perused the entire records, and heard the learned counsel on all sides. The Federal Court directed the Hindu Religious Endowments
Board to frame a scheme giving equal representation to the ARA family of ''Nagarathars'' (claiming to be the hereditary trustees) and the ''Nattars''
of Karaikudi, held to be vitally interested in the management of this temple, in the Board of management with ''an independent Chairman.'' The
Hindu Religious Endowments Board framed the scheme, u/s 57 of the Hindu Religious Endowments Act, with a Board of management of three
trustees, and an Executive officer to replace the existing receiver. One of the trustees (respondent 4) represented the ARA family, another
(respondent 3) represented the Nattars of Karaikudi (though he is alleged by the plaintiffs to be a stooge of the ''Nagarathars'', and only nominally
a ''Nattar'' and to be always sailing with the ''Nagarathars'' in this dispute and litigation), and the Chairman was one perianan Chettiar (respondent
2) appointed as an independent chairman (but alleged by the plaintiffs to be a ''Nagarathar'' and a relative of the ARA family, and not an
independent chairman'' by any means. The scheme was attacked in the suit as liable to be set aside as the ''Nattars'' and ''Nagarathars'' were really
''not given equal representation'', as all the three trustees were really the ''Nagarathar'' nominees, that the ''Nagarathar'' and ''Nattar'' trustees
should have been ''elected or selected'' by the ''Nagarathars'' of ARA family and the Karaikudi ''Nattars,'' at their meetings, and ''not selected by
the Court, that the independent Chairman should have been a man ''not belonging to the Nagarathar or Nattar communities'', which were fighting
over this temple, and commanding the confidence of both these communities, that the safe-keys and control over the income and expenditure
should have been given to the trustees, and not to the executive officer, and other grounds.
An injunction petition (LA. No. 151 of 1950) was filed by the plaintiffs for restraining the three trustees from taking charge under the scheme
and for restraining the old Receiver from handing over charge to the executive officer appointed under the scheme. The learned District Judge
dismissed this petition on 6th January 1951 and dissolved the interim injunction he had granted. Eventually, on the 12th February 1951, in L.P.A.
No. 7 of 1951 and C.M.A. No. 21 of 1951, Satyanarayana Rao and Raghava Rao, JJ., on the consent of parties, allowed the executive officer
appointed under the scheme to function as a Receiver of Court, subject to the directions of the District Court, and directed the Board of Trustees,
''in a later paragraph'', not to function till the disposal of the suit, and directed the District Judge, Ramanathapuram, to dispose of the suit before the
summer recess.
But, after the suit went back to the District Court, and after the case was opened and some documents marked, the plaintiffs put in petitions to
amend the suit by adding the above constitutional issue and requesting the District Judge to move this Court for withdrawing the suit to its file,
under Article 228. The learned District Judge passed orders on 4th April 1951 in both the petitions. In the amendment petition (LA. No. 86 of
1951), the order was, ""Heard. Amendment petition allowed."" In the other petition (LA. No. 87 of 1951), the order was, ""Heard. Rejected
''without any reasons given for rejecting it.'' Hence this petition. I may add that the learned District Judge framed a wide and comprehensive issue
about the validity of the Hindu Religious Endowments Act, and especially Section 67 thereof, after the amendment, without the slightest opposition
by the respondents. (6) The law on the point is clear. For Article 228 to apply, three main conditions must exist. They are:
A suit or case must be ''actually pending'' in Court subordinate to the High Court. No one can move this Court under Article 228 stating that
such a suit or case is ''intended to be flied.'' It must be actually ''filed'' and must be ''pending.'' If it has been dismissed or disposed of already.
Article 228 will not apply.
The High Court must be satisfied that it involves ''a substantial question of law as to the interpretation of the Constitution.'' It should ''really
involve'' such a question. A mere frivolous allegation that such a question is involved will not do.
The High Court must be satisfied that ''the determination of that question is necessary for the disposal of the case. If the suit can be disposed on
the other questions raised (like limitation, non-maintainability by a single person when a representative suit has to be filed under the law, etc),
Article 223 will not apply. Usually, the High Court will not act till this point is clear, and will wait for the other issues to be decided. Of course,
where it is clear, as in this case, it will act at once.
Here, the suit is pending in the District Court, Ramanathapuram, a Court subordinate to this Court, whatever the reason be for its pendency,
whether mischievous and selfish petitions by the plaintiffs, or petitions filed by them ''bona fide'' in the ends of justice. I must add that the
amendment petition was not opposed as frivolous and mischievous and that the District Judge''s order allowing it was not even challenged in
revision. So, the first condition is satisfied.
I hold also that ''the appellate side'' has jurisdiction, especially when the matter arises from the mofussil courts and is an offshoot of orders in
C.M.A. No. 21 of 1951 and L.P.A No 7 of 1951, all the more so as I propose only to act under Article 228(b), and not to try and dispose of the
suit ''here itself under Article 228(a), and, so, no trial on the original side, is involved.
I reject also the contention that Article 228 will not apply as the scheme was not framed u/s 57 of the Hindu Religious Endowments Act but
under the directions of the Federal Court, as the scheme itself was ''admittedly framed u/s 57 of the Hindu Religious Endowments Act'', and it does
not matter that the scheme was framed under the directions of the Federal Court in App. Case No. 7 of 1948.
Then it was urged that the contention regarding the validity of the Hindu Religious Endowments Act ''was frivolous'' and not seriously meant,
and that it is ''not necessary to decide this question for disposing of his suit.'' I cannot agree. This objection was never raised in the District Court
before the amendment was allowed, or before ''the wide issue was framed by the learned District Judge. Nor can I hold that the contention is
obviously ''frivolous'', as several eminent Advocates have raised the same contention in ''Writs'' and ''appeals'' now pending in this Court (like the
''Guruvayoor Devaswom case -- ''writ'' -- several other ''Devaswom'' and Mutt cases -- Appeals), and ''Benches of this Court have admitted the
petitions for those writs and the appeals'' on the strength of such contentions. Every contention has to be considered on its own merits. Thus, a man
convicted for adultery and sent to jail, leaving the woman with whom he committed it, and without whose co-operation he could never have
committed it, scot-free, contended before me that Section 497, Indian P.C., was illegal as it amounted to discrimination rendered illegal by the
Constitution, and this matter has been referred by me to a Bench for decision as Involving a real and substantial question of law as to the
interpretation of the Constitution the determination of which will be necessary for the disposal of the appeal against the conviction of the men for
adultery. So too, Section 494, Indian P.C., has been attacked before me as discriminating against Christians, and now against Hindus also, under
the Madras Hindu Bigamy Prevention Act, while leaving the Muslims free to marry four wives, persons convicted under the Madras Hindu Bigamy
Prevention Act have raised this point in their appeals. This matter also has been referred by me to a Bench on the appellate side for decision. Both
the Benches referred to above are being constituted by the Honourable the Chief Justice. The right of wives to claim maintenance from husbands,
while denying maintenance to husbands from wives -- to even poor husbands from rich wives -- has been attacked as discriminatory before me, by
husbands in appeals and revisions against orders of maintenance passed against them. I have refused to entertain it as a question of substance and
have refused to refer it to a Bench for decision, since I am of opinion that Article 15(3) of the Constitution to the effect that ""Nothing in this article
shall prevent the State from making any special provision for women and children"" will entitle the award of maintenance to a wife from a husband
even though the husband may never recover maintenance from the wife. I did not apply Article 15(3) to the case of adultery and bigamy, referred
to above, as freedom from punishment for adultery or freedom to share a husband, along with other wives, did not strike me as amounting to
making special provision for women under Article 15(3). This is not the first time that the validity of the Hindu Religious Endowments Act and
particularly Section 57 thereof, has been attacked before me in cases, though this is the first time when a suit pending in the lower Court, with a
broad issue on the point, is prayed to be withdrawn to this Court under Article 228. In my opinion, it is most desirable that this question should be
decided one way or the other by this Court as soon as possible. This Slate is said to have no less than four million acres of land covered by
religious and charitable endowments, all of which may come under the jurisdiction of the Hindu Religious Endowments Board in one context or
other, and, in almost every case hereafter, I am satisfied, any man affected by a scheme framed by the Hindu Religious Endowments Board, under
the Hindu Religious Endowments Act, whether his right is good or bad, will raise this constitutional point which will have to be held to be a
substantial question of law the determination of which will be necessary for the disposal of the suit, whatever the decision may be on merits.'' But I
see no reason to dispose of the suit itself in this Court, as there are several other issues in it, and it will undoubtedly be far more convenient for the
lower Court to hear witnesses and decide those issues, and it will be a waste of high judicial power to bring all these petty cases, with their many
issues, important and unimportant, different and indifferent, to this Court, and waste its time. This Court should not be made the forum for
discussing academic issues, whether of law or of fact, or the forum for deciding common and ordinary issues of fact and law. So I withdraw O.S.
No. 18 of 1950 on the file of the District Court, Ramnad to the file of this Court simply for the purpose of determining the said question of law and
returning the case to the District Court, Ramanathapuram, under Article 228(b) of the Constitution. Mr. R. Gopalaswami Aiyangar, for the
petitioner, says that he wants nothing more than that, and that he never wanted this Court to try the whole suit her itself. It is obvious that the
question of law can be, and should be, settled by a Bench on the appellate side, and that the original side need not be asked to do it as urged by
respondents 2 to 4. The case will be returned to the District Court, Ramnad, as soon as the question of law is decided here, with a copy of the
judgment on the question.
Now certain incidental provisions have to be made regarding the management of the temple etc. as this suit is likely to be prolonged for ''a year
or two'' before it is disposed of finally, in this Court and the Court below. Such suits have a way of sticking on for a long time, and cannot be
expected to be disposed of in a month or two, as hoped for by Mr. Gopalaswami Aiyangar, for the petitioner. Indeed, in this very suit,
satyanarayana Rao and Raghava Rao JJ., by their order dated 12th February 1951, were glad at some arrangement come to between all the
parties on their suggestion; and directed the lower Court to dispose of the suit expeditiously before the closing of the Court for summer recess in
April 1951. But, soon after that order was passed, with the consent of all the parties and to the apparent satisfaction of all the plaintiff filed a
petition (I. A. No. 86 of 1951 in O.S. No. 18 of 1950) not only to amend the plaint by adding this attack on the validity of the Hindu Religious
Endowments Act and Section 57 in particular, but also filed another petition (I. A. No. 87 of 1951) requesting the District Judge to refer the case
to this Court for withdrawing the suit to this Court''s file under Article 228 of the Constitution of India. That shows that whatever the apparent
agreement or consent expressed in Courts, a party will surely, by himself or on advice by counsel, exercise every possible right given to him under
the law even if it means prolonging the suit for months or years or decades, and the ''use'' of law can never be held to be an ''abuse'' of law. Here
the control over valuable properties was involved, with all the power and influence it connotes. Hence the epic struggle. Of course, Satyanarayana
Rao and Raghava Rao JJ. never ordered that the suit should be disposed of before the summer recess ignoring the rights of the parties to get
suitable amendments made, where necessary, examining witnesses even if that caused delay, adding legal representatives wherever needed, getting
documents, and getting the ruling of this Court on a vital question of Jaw involved in the suit and requiring action under Article 228. The contention
that the plaintiffs are moved only by property considerations, and not by moral or religious or pious considerations, in bringing this suit and the
amendment petition and this petition does not impress me. Nobody in this country, whether Hindu or Muslim, Nagarathar or Nattar, seems to fight
over a religious institution without property.
It is essential, as this suit is likely to take a year or two before it is finished finally, that I should continue the executive officer appointed by the
Board to function as a receiver appointed by the Court and subject to the directions of the District Court and the Hindu Religious Endowments
Board till the suit is disposed of, as directed by Satyanarayana Rao and Raghava Rao JJ. in their order dated 12th February 1951 with the consent
of all the parties. Mr. E. Gopalaswami Aiyangar, for the petitioner, has no objection whatever to this; nor have any of the rest. So, I pass orders
accordingly. Messrs. T. R. Srinivasan and D. Ramswami Aiyangar, appearing for the A. R. A. family and Nattar trustees appointed under the
scheme, prayed that the order passed by Satyanarayana Rao and Raghava Rao JJ. on 12th February 1951 to the effect that ""the Board of
Trustees will not function until the suit is disposed of and the rights of parties are established should be deleted now, and these trustees allowed to
function, as otherwise, they may never function as trustees at all in spite of the order appointing them, as they were appointed in October 1950 and
the suit may not be finished by October 1953, and their appointment will be nullified and will only remain as a standing joke all over the country
side. They urged before me that they agreed to the above order of Satyanarayana Rao and Raghava Rao JJ. only thinking that the suit would be
finished by April 1951, as directed by the learned Judges, and not dreaming of such dilatory tactics and mischievous activities by the plaintiffs, like
putting in petitions for amending the plaint, raising a vital constitutional issue and asking for referring the matter to this Court, etc. But ''Court cannot
disallow'' what the ''law allows''. I have to deal with the matter not on the basis of any agreement between the parties, but independently, as a
Judge dealing with a matter now in controversy between the parties. The plaintiffs are attacking the right of any of the trustees to function under the
scheme, and Satyanarayana Rao and Raghava Rao JJ. have definitely remarked, ""It should not be understood that by this order we have
expressed any opinion regarding the merits of the suit"", and have further said that their order is ''without prejudice to the contentions and the rights
of the parties which should undoubtedly be decided in the suit.'' Besides, their order directing the Board of trustees not to function until the suit is
disposed of is in a ''separate paragraph'' from the paragraph reciting the agreement between the parties, of which the learned Judges were glad. It
is clear to me that these trustees should not, in the circumstances, be allowed to function ''till the suit is disposed of, however long a time it takes,
as, otherwise, it will be prejudicing the contentions and rights of the plaintiffs and expressing an opinion about the merits of the suit before it is
disposed of under the law, and allowing respondents 2 to 4, if they are ultimately declared to be not entitled to be appointed as trustees, to pass
orders or express opinions or influence decisions regarding temple properties, as if they are legally appointed and valid trustees. In this view,
though I am sorry for these trustees, who were glad at their appointment and are chagrined at this terrible check, the proverb ""many a slip exists
between the cup and the lip"" applies to them, and hardships which ''cannot be remedied by law'' have to be ''tolerated by law'', however
regretfully, and I cannot grant this request. . In the circumstances I direct all the parties to this petition to bear their own costs. The counsel
appearing for the Hindu Religious Endowments Board will be allowed to take the costs of the Board from the temple properties.
The executive officer, put in charge as Receiver and continued now, will, of course, be free to file suits, take proceedings and institute petitions
under the orders of the District Court, Ramnad, on instructions from the Hindu Religious Endowments Board, Madras, or on his own motion as
officer of Court, regarding such matters concerning the temple properties or affairs as are necessary, and to spend such amounts as are necessary
from the temple funds for those purposes, after obtaining the Court''s sanction, general or particular.
The suit, O.S. No. 18 of 1950, is withdrawn to this Court, under Article 228(b) of the Constitution, and will be posted before a Bench on the
Appellate Side after obtaining the orders of the Honourable the Chief Justice.