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Judgment
Thangamani, J.—Sri Thiyagarajaswami Temple of Tiruvarur is a very ancient one in Southern India. In the temple Pooja or worship has to
be done almost throughout the day. There are daily services, the extraordinary services prescribed for a particular week and a particular month
and the celebration of the annual festivals. The daily services are 6 in number spread over the day from morning to midnight. There are forms and
rituals to be observed with regard to the several services of the day, the weekly, the monthly and extraordinary services and celebration of
festivals. The peculiar features of the temple is that apart from an allowance called ''the Mohini allowance,'' there is no other property which can
now be said to be devoted for its general purpose. There are, however, a number of specific endowments or Katalais relating to the various
services in the temple, its festivals and for conducting several charities in glorification of the pagoda of Sri Thiyagarajaswami. The main object of
the several Kattalis seems to be to keep the services and the festivals going and to have everything tidy and orderly within the precincts of the
temple and to enable the various duties within the temple to be performed regularly and punctually. Each Kattalai has its own Trustee and separate
properties are endowed in connection with each Kattalai. There are thirteen of Such Kattalais. The most important of them are four viz., Ulthurai
Kattalai, Abhisheka Kattalai, Annadhaha Kattalai and Rajan Kattalai. It is not known when and by whom properties have been endowed for these
Kattalais. It is claimed that the endowments were made by the Native Rulers who reigned Thahjavur before the advent of British Rule. The
management of each of these Kattalais is vested in a certain Trustee or Trustees hereditarily. The trusteeship of Rajan Kattalai vests in the Head of
the Dharmapuram Mutt who is the appellant in A.S. Nos. 647 and 648 of 1993 herein. The trusteeship of the Abhisheka. Kattalai and Annadhana
Kattalai is vested in the Head of the Velukurichi Mutt in Tirunelveli District, the present appellant in A.S. No. 176 of 1984 before us. With regard
to the services connected with Rajan Kattalai; the Head of Dharmapuram Mutt generally functions througha deputy known as, Kattalai Thambiran.
Though technically speaking the temple has no income of its own and has to depend for all its services on the proper performance of the trusts
connected with the Kattalais, still for all practical purposes the Ulthurai Kattalai represents the temple proper-its object being the internal
management of the temple. Mohini allowance is the only source of income for this Kattalai. The other Kattalais contribute their share of services or
things in the various, stages of the daily worship and in the various festivals of the temple. The extent of their liability is determined by usage and is
ascertained from the dhittam prepared by each Kattalai, in connection with the daily worship and festivals. Admittedly the several Kattalais came
into existence at different times and have been managed separately for a long time, probably for centuries. Certain copper plate grants by which
some of the lands of the Rajan Kattalai were endowed are available. The trustees of some Kattalais have added to be originally endowed lands by
further purchases, out of the savings from their income.
It was not possible to trace the history of the temple beyond the year 1800. It was probably then under the control of the Raja of Thanjavur.
From 1800 to 1847 the temple seems to have been under the control of the Government, the properties having been managed by the Government
itself. In the year 1817 Kattalai administration was taken over by the British Government along with administration of all temples. In 1847, when
the Government withdrew themselves from the management of religious institutions of the Hindus, the institution, including the several Kattalais,
seems to have been handed over to the Kattalaidars or managers of the respective Kattalais, muchilikas or agreements having been taken from
every one of them describing the terms under which they were to hold the trust properties and utilise the income from those properties. During the
time of the Government Management the officers of the Government seem to have superintended the affairs of all the then katalais. The accounts of
the different Kattalais were submitted to the Collector every year and in each of these accounts the Panchayatdars who were evidently then
appointed by the Government signed in token of their exercise of Supervision over the affairs of the Kattalais. After the withdrawal of the
Government, the Kattalaidars in pursuance of terms of the muchilikas executed by them, managed these kattalais for the common benefit of the
main temple of Sri Thiyagarajaswami.
Ordinarily speaking a Kattalai is a special or specific endowment for certain specific services or religious charity to be performed. The property
endowed for the performance of the Kattalai vests in the deity itself. The position of a Kattalai trustee therefore would be nothing more than that of
a manager of a Hindu religious endowment. But Kattalais which are attached to Sri Thiyagarajaswami temple at Tiruvaur are, however, of a slightly
different variety. In the words of Muthuswamy Aiyer, J. in Vythilinga Pandara Sannadhi v. Somasundara Mudaliar ILR 17 Mad. 199, relating to
this very temple, it is a distinct endowment under a separate trustee to which specific items of expenditure are assigned as legitimate charges to be
paid therefrom. The eminent Judge was of the view that the Kattalais merely formed a classification of the sources of income rather than separate
endowments designed for specific services.
Whatever may be the origin and nature of these Kattalais, there can be no doubt that all the Kattalais are integrally connected with the worship
in the temple and a coordination of the duties by the various trustee would be absolutely necessary for the maintenance of proper worship in the
temple. In course of time however emphasis appears to have been laid on the individuality of the Kattalais. This led to unseemly fights between
trustees of the various Kattalais. There was gross mismanagement of the affairs of the temple and some scheme for the co-ordination of the various
Kattalais arid for some control over the various Kattalais insofar as it may ensure the harmonious, working of the Kattalais, wherever they have to
co-operate, was felt necessary. As early as 1910 a suit was filed u/s 92 of the CPC for settlement of a scheme to manage the affairs of the temple
in the Sub Court at Thanjavur. A scheme was settled and there was an appeal to this Court from that decree in Gnanasambanda v. Vaithilinga
Mudaliar 18 L.W. 247. There the Division Bench pointed out that the history of the temple from 1870 to 1882 that the Kattalais were independent
institutions and that the trustee of one such Kattalai was not subordinate to another namely, the ulthurai trustee. In that view the scheme of the
lower court was modified in such a manner as would have the effect of maintaining the individuality of the several Kattalais, without interfering with
the essential character of the independent trusts while at the same time securing a machinery for the proper management of the temples.
In the meantime the Madras Legislature passed the Madras Hindu Religious Endowments Act, 1927, with a view to provide for the proper
administration and governance of certain Hindu religious endowments. The Act provided for the supervision of the Hindu Religious Endowments
through a statutory body known as the Madras Hindu Religious Endowments Board. Provisions were made for the control of religious
endowments as well as specific endowments, in relation to temples. It divided the temples into ""excepted and non-excepted temples"". It also
provided for the framing of a scheme for the management of the temples.
This Act was amended by Madras Act IX of 1937 by introducing a new Chapter IV-A. That provided that notwithstanding that a temple or
specific endowment attached to a temple was governed by a scheme previously framed by the Board or settled by a Court the Board if it were
satisfied that the temple or endowment was being mismanaged and that in the interests of the administration of the temple or endowment, it was
necessary to take proceedings under this chapter, might ""notify"" the temple or endowment. And on the publication of such notification the
administration of the temple or endowment would go under the control of the Board notwithstanding the scheme which might have been framed
already. On taking management of a notified temple or endowment the Board was authorised to appoint an Executive Officer would virtually
displace the trustee and would function under the control of the Endowment Board. The result of the notification in substance would be that the
previously existing scheme would be suspended and the management would vest in the Board. Shortly after the passing of Act IX of 1937
proceedings were initiated by the Hindu Religious Endowments Board for the purpose of notifying Sri Thyagarajaswami Temple of Thiruvarur and
the Kattalais attached there to. The trustees of the various Kattalais opposed this step: but their objections proved fruitless. By Notification No.
638, dated 25th May, 1937, the Government declared that Sri Thyagarajaswami Temple at Thiruvarur and the specific endowments attached
thereto would be subject to the provisions of Chapter VI-A of the Act. An Executive Officer was appointed by the Board on 12th July, 1937, for
the temple as well as for the specific endowments attached thereto. On 30th July, 1937, the Board defined the powers of the Executive Officer
and directed him to take charge and be in possession of the properties of the temple and the various Kattalais attached thereto and subject to the
provisions made in its order, the Executive Officer was authorised to exercise all powers and perform all duties of a trustee of a non-execepted
temple. This left the trustees of the various Kattalais with very little powers. Beyond a right to be consulted and to offer suggestions for
modification of budgets and to receive honours and perquisites no other powers were given to them.
The Pandarasannadhi of Dharmapuram Mutt the appellant in A.S. Nos. 647 and 648 of 1983 herein instituted C.S. No. 20 of 1938 on the file
of this Court for a declaration that the notification by the Government of the Rajan Kattalai as coming under the provisions of Chapter VI-A of the
Act and the consequent order of the Board appointing the Executive Officer and defining his powers were illegal, for setting aside those orders and
for restraining the Executive Officer from taking possession of the Kattalai properties. The suit did not however proceed to trial as the parties
thereto entered into a compromise. Briefly stated, as a result of the compromise. Briefly stated as a result of the compromise, the notification was
maintained but the possession of the Kattalai properties was restored to the Kattalai Trustee who was to manage, the same by a staff under his
control he was to keep accounts, etc. There was provision therein for the auditing of the accounts and the preparation of the budget was entrusted
to the Kattalaidar. Leases of trust lands were to be by public auction and the Kattalaidar was responsible for the collection of the income. The
income realised should be remitted to the Executive Officer, The expenses in connection with the staff employed by the Kattalaidar were to paid
by the Executive Officer who alone was entitled to have the services performed in the temple. There was provision for the maintenance of accounts
by the trustee as well as by the Executive Officer.
After the advent of the Constitution of India on 26th January, 1950 the Hindu Religious Endowments Act of 1927 was repealed and in its place
Act XIX of 1951 was substituted. The chapter relating to notification of temples and endowments was numbered as Chapter VI. Section 64 of this
Act provided for the notification of the temple or a religious institution of the temple or a religious institution and Sub-section (4) laid down that
every notification published under this section shall remain in force for a period of five years from the date of its publication; but the Government
may at any time on an application made to them cancel the notification. The Notification No. 638, dated 25th May, 1937, as modified by the
compromise decree subsisted till 30th September, 1951, the date of coming into force of Act XIX of 1951. On the date the notification would by
reason of Section 103(c) in its original form ensure for a period of five years from 30th September, 1951, that is till 3.0th September, 1956. By
that time the amendment introduced by Act IX of 1956 had come into force. By virtue of that amendment the Government have a right to renew
the notification and this is what they did in regard to Sri Thyagarajaswami temple and the endowment attached there to. By G.O. No. 3069,
(Revenue), dated 4th August, 1956, the Government issued the following order:
In exercise of the powers conferred by Sub-section (4)(a) Section 64 of the Madras Hindu Religious and Charitable Endowment Act, 1951,
(Madras Act XIX of 1951) the Governor of Madras hereby directs that Notification No. 638, dated 25th May, 1937, relating to Sri
Thyagarajaswami temple, Tiruvarur, Nagapattinafn Taluk, Thanjavur District published at page 305 of Part I-A of the Fort St. George Gazette,
dated 1st June, 1937, be continued for a period of five years from the 30th September, 1956.
The validity of this G.O. No. 3039, (Revenue), dated 4th August, 1956 was challenged in Sri La Sri Subramania Desika Gnanasambanda
Pandara Sannathi, Hereditary trustee of the Rajan Kattalai Sri Thyagarajaswami Koil Vs. The State of Madras and Another, It was argued on
behalf of the present appellants in that case that the trusteeship of Rajan Kattalai being hereditary in the Head of Dharamapuram Mutt, is a right of
property under Article 19(1)(f) of the Constitution, and since Section 64 of the Act empowers the Government to takeaway that right of property
in an arbitrary and capricious manner, that provision is constitutionally invalid. The second ground which was urged by the appellant was that the
notification was issued without giving an opportunity to the appellant to show cause why the earlier notification should not be extended, and that
made the notification invalid. The Division Bench rejected the first contention. In regard to the second contention it held that the proceedings
authorised to be taken u/s 64(4) are in the nature of quasi judicial proceedings and so before making an order, the appellant should have been
given an opportunity to be heard, for that was the requirement of natural justice. However, since the Division Bench though that the impugned
order could last only till 30th September, 1961 a short period after the delivery of the judgment on 11th August, 1961, it would serve no purpose
to issue a writ quashing the said order on the ground that the principles of natural justice had not been complied with before passing it. Accordingly
it, dismissed the writ petition.
The Division Bench while holding that the renewal of the 1937 notification was done without any regard to principles of natural justice, it
expressed : ""The Government will then have to consider whether the notification now subsisting should be renewed or not. We have no reason to
think that the Government will after this judgment proceed to direct a renewal of the notification without being satisfied as to its necessity or without
giving facilities to the petitioner to show cause why it should not be renewed. However, the Commissioner, H.R. and C.E. issued directions to the
Executive Officer of Sri Thiyagarajaswami Devasthanam in his R.C. No. 12718/58/14, dated 29.9.1981 that the notification already issued shall
be deemed to be in force even after the said period of five years by virtue of Section 118(2)(a) of Madras H.R. & C.E. Act 22 of 1959 and
therefore the Executive Officer appointed in consequence of the above notification shall continue to administer the institution and their properties as
they have been doing so far.
12 In the meanwhile, Dharmapuram Mutt preferred an appeal to the Supreme Court in S.D.G. Pandara Sannadhi v. State of Madras (1965) 2
M.L.J. 167, against the dismissal of W.P. No. 295 of 1958. The Supreme Court pointed out that in assuming that the impugned order would come
to an end on 30th September, 1961, the High Court appears to have ignored the fact that before it delivered its judgment, a new Act come into
operation on 1st January, 1960. Section 72(7) of this act provides that any notification published under Sub-section (1) or Sub-section (3) of
Section 64 of Act XIX of 1951 before the commencement of this Act shall be as valid as if such notification had been published under this Act.
This provision has again been subsequently amended by Act XL of 1961, and the amended provision is retrospectively brought into operation
from 1st January, 1960. And as a result of the subsequent Act which had already come into force on the date when the High Court delivered its
judgment, it is obvious that the impugned notification would not automatically come to an end on 30th September, 1961. And the said notification
would continue in operation without the appellant getting an opportunity to show cause why it should not continue to be in operation. The main
reason which weighed with the High Court in not issuing a writ in favour of the appellant that the impugned notification would remain in operation
for a very short period after it delivered its judgment, is found to be erroneous. Held that the High Court should have granted the prayer made by
the appellant for the issue of an appropriate writ cancelling the impugned notification. Though the impugned notification has been issued in 1956 for
five years, its life gets statutorily extended and the only way in which the appellant would be able to show cause why the said notification should not
be extended in respect of his Kattalai is to quash the said notification. Ultimately, the Supreme Court quashed the impugned notification G.O. No.
3069, (Revenue), dated 4th August, 1956.
After the Supreme Court quashed the notification aforesaid on 10.2.1965, Madras Ordinance 1 of 1965 was promulgated by the Governor of
Madras on 16.7.1965. Subsequently Act XVI of 1965 was passed on the lines of the above ordinance. Thereunder, Section 75 of H.R. & C.E.
Act was amended by introducing Sections 75(A), 75(B) and 75(C) of the Act. The relevant parts of these provisions run as under:
75-A. Notwithstanding any judgment, decree or order of any court and notwithstanding anything contained in the Madras Hindu Religious
Endowments Act, 1926 (Madras Act II of 1927 or in the Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of
1961) or in this Act, but subject to the provisions of Section 75-C all notifications issued under Chapter VI-A of the Madras Hindu Religious
Endowments Act, 1926, (Madras Act II of 1927) and in force immediately before the 30th September 1956 and which have not been
subsequently cancelled by the Government, shall continue, and shall be deemed always to have continued, in force up to and inclusive of the 16th
July, 1965 and for a period of one year thereafter and accordingly all acts, proceedings or things done or taken under the said Acts or this Act by
the Government or by any officer of the Government or by any other authority in pursuance of the said notifications shall, for all purposes, be
deemed to be, and to have always been, done or taken in accordance with law.
75-B. (1) Where after the expiry of a period of six months from the 16th July, 1965, the Commissioner is satisfied (hat in the interests of the
administration of any religious institution governed by any of the notification referred to in Section 75-A. It is necessary to continue the notification
(hereinafter in this section referred to as the said notification) beyond the date of the expiry of the period of one year from the 16th July, 1965, he
may by notice, published in the prescribed manner, call upon the trustee and all other persons having interest to show cause why the said
notification should not be so continued.
(2) Such notice shall state the reasons for the action proposed, and specify a reasonable time, not being less than one month from the date of the
issue of such notice, for showing such cause.
(3) The trustee or any person having interest may thereupon prefer any objection he may wish to make against the action proposed.
(4) Such objection shall be in writing and shall reach the Commissioner before the expiry of the time specified in the notice aforesaid, for within
such further time as may be granted by the Commissioner.
(5) Whereon such objection has been received within the time so specified or granted the Government may, on receipt of a report from the
Commissioner to that effect,...by notification declare that the said notification shall continue in force beyond the date of the expiry of the period of
one year from the 16th July, 1965.
(6) Where any such objections have been received within the time so specified or granted the Commissioner shall hold an enquiry into the
objections in the manner prescribed and decide whether or not the said notification should be continued as aforesaid.
(7) If the Commissioner decides that the said notification should be continued as aforesaid, he shall make a report to the effect to the Government,
who may thereupon by notification, declare that the said notification shall continue in force beyond the date of the expiry of the period of one year
from the 16th July, 1965.
75-C (1) Any trustee or any person having an interest, who is aggrieved by the continunance of a notification u/s 75-Aor u/s 75-Bmay,
(i) in the case of the continuance of the notification u/s 75-A within sixty days from the 16th July, 1965: and
(ii) in the case of the continuance the notification u/s 75-B within sixty days from the date of the declaration under Sub-section (5) or Sub-section
(7) of the said Section 75-B;
institute a suit in the court for the cancellation of such notification and the Government shall cancel the notification if the court so directs:
Provided that the court shall have no power to suspend the operation of the notification pending the disposal of the suit.
(2) Any party aggrieved by a decree of the court under Sub-section (1) may, within ninety days from the date of the decree, appeal to the High
(3) Notwithstanding anything contained in Section 75-A or Section 75-B if the Government, after taking into consideration such matter relating to
the management and administration of the religious institution as may be prescribed are satisfied that it is no longer necessary to continue a
notification continued in force u/s 75-A or u/s 75-B they may cancel the notification.
In view of the enactment of Section 75-A, G.O.Ms. No. 3069, dated 4.8.1956 whose validity was negatived by the Supreme Court was
given a fresh lease of life for one year from 16.7.1965. This is turn extended the life of G.O.Ms. No. 638, dated 25.5.1937 till that date. Besides,
in exercise of the powers conferred by Sub-section (7) of Section 75-B of Madras Act 22 of 1959 the Government issued G.O. No. 2347,
(Revenue), dated 13.7.1966 directing the continuance of notification No. 638 dated 25.5.1937 beyond 15th July, 1966. The Commissioner of
Hindu Religious and Charitable Endowments also issued notification No. 7120/66 dated 17.5.1966 for the continuance of the earlier notification
and called upon the trustees of all the Kattalais to show cause VI-A of Act II of 1927 and which continues to be in force till 17.6.1966 should not
be further continued.
Thereafter u/s 75-C of the Act three suits came to be filed. While the Adheenakarthar of Dharmapuram Mutt has instituted O.S. No. 1l of
1968 and O.S. No. 15 of 1968 on the file of Subordinate Judge of Nagapattinam O.S. No. 12of 1968 of the same court is by the
Adheenakarthar of Valakurichi Mutt. In O.S. No. 1l of 1968 plaintiff seeks cancellation of G.O. No. 3069, dated 4.8.1956. Whereas the prayer
in O.S. Nos. 12 and 15 of 1968 is for cancellation of G.O. No. 2347 (Revenue), dated 13.7.1966 declaring that notification No. 638, dated
25.5.1937 relating to Sri Thiyagarajaswami Devasthanam and the Kattalais attached thereto at Thiruvarur shall continue to be in force beyond 15th
July, 1956. Evidently after the institution of O.S. No. 15 of 1968, the earlier action O.S. No. 11 of 1968 has become infructuous.
The two plaintiffs alleged in their respective plaints that the continuance of G.O. No. 3069, (Revenue), dated 4.8.1956 till 15.7.1966 by
enacting Section 75-A is invalid both under Article 14 and Article 19 of the Constitution. It is not valid also for the reason that it has been issued
without giving an opportunity to the plaintiffs to state their objections. Since the said notification has been declared invalid by the Supreme Court,
neither the first defendant nor the second defendant Commissioner of Hindu Religious and Charitable Endowments has any right to continue the
same. The show cause notice of the second defendant dated 17.5.1966 purported to have been issued u/s 75-B of the Act is defective for the
reason that it did not indicate that the second defendant was satisfied as to the necessity for the continuance of the earlier notification beyond
15.7.1966. As a result of the prolonging of the impugned G.O. the Executive Officer continues to have control over Rajan Kattalai and its
properties inspite of the decision of the Supreme Court in S.D.G. Pandara Sannadhi v. State of Madras (1965) 2 M.L.J. 167. This in effect is an
encroachment on the rights of the plaintiff as the hereditary trustee of the Kattalai. The Executive Officer of the temple had acted prejudicial to the
welfare of the Kattalai all along by granting permanent leases of the properties of the Trust and diverting the funds of the Trust to other Kattalais.
The various services of the Kattalai were not carried out by the Executive Officer in the proper manner. Though all the rights of the plaintiffs as the
hereditary trustees of the Kattalais were restored in view of the judgment of the Supreme Court, the fruits of the decree have been taken away by
the enactment of the impugned provisions. The welfare of the temple would be best served by the Commissioner initiating proceedings for the
settlement of a scheme with sufficient provisions to bring about co-operation and co-ordination among the various Kattalais in case it is found
wanting. The provisions of Section 75-A enabling the continuance of the notification not merely for a period of five years from 30.9.1956 but also
up to the date of the publication of the Act, and Ordinance namely 16.7.1965 and for a period of one year thereafter reverse the verdict of the
Supreme Court in an arbitrary manner. The notification and extension thereof even without any time limit amounts in effect to take over of the
administration by the first defendant through the second defendant Commissioner of Hindu Religious and Charitable Endowments.
The defendants resisted the suits by pleading in the written statement that the temple has no income of its own and has to depend for all its
services on the proper performance of the trust connected with the Kattalais. The court''s scheme was not conducive to the proper administration
of the Kattalais or the supervision thereof. The major Kattalais attached to the temple were mismanaged. There was no cooperation among the
trustees of Ulthurai Kattalai the trustees of the present plaintiff Kattalai did not keep the various services attached to them. The entire income of
Kattalais was not brought into account. For these reasons steps were taken to notify the temple and various kattalais attached thereto as early on
25.5.1937 in G.O. No. 638. After the judgment of the Supreme Court in S.D.G. Pandara Sannadhi v. State of Madras (1965) 2 M.L.J. 167,
invalidating the notification dated 4.8.1956 the Government felt doubt as to the validity of all the actions taken in pursuance of the said notification
not only in respect of Sri Thiyagarajaswami Temple, Thiruvarur but also in respect of certain other temples covered by the said notification. So in
the interests of proper administration of all the religious institutions in question the Government of Madras promulgated Ordinance No. 1 of 1965
as Legislature of the State was not then in session. The said Amendment Act and consequential notification became imperative in order to secure a
co-ordinating agency for the proper and efficient functioning of the several kattalais and the Devasthanam as a whole.
After trial, learned Subordinate Judge while holding that G.O. No. 3069 dated 4.8.1956 has become invalid in view of the decision of the
Supreme Court in S.D.G. Pandara Sannadhi v. State of Madras (1965) 2 M.L.J. 167, however, found that in view of Amendment Act 16 of 1965
it continued to be in force. Even though it is clear that in order to take away the effect of the judgment of the Apex Court, Ordinance 1 of 1965
and Amendment Act 16of 1965 had been passed, their validity could be decided only by the High Court and Supreme Court. He further held that
the Executive Officer appointed under the notification acted to the detriment of the interests of the kattalais. There is force in the claim of the
present appellants that the Executive Officer was not acting in the best interests of the kattalais. However, he felt that there was necessity for
central agency for the co-ordination of the functions of various kattalais and for rendering proper and efficient service to Lord Thiyagaraja. The due
and regular performance of the services and festivals required the centralised and coordinating Executive Authority. The Executive Officer
appointed under the notification was able to regulate the maintenance of the services in the temple by the various kattalais and to administer the
temple smoothly all these years. There was evidence establishing that for a long time there were misunderstanding between the various kattalais
trustees as a result of which the services to the temple suffered. In that view of the matter he dismissed all the three suits with one set cost of
defendants 1 and 2. The said judgment and decree are challenged in these appeals.
On the various contentions made by both sides these questions arise for our consideration:
Whether Section 75-A of the Act is valid insofar as the Notification in G.O. No. 3069, dated 4.8.1956 is concerned?
Whether the Notification in G.O. No. 2347, dated 13.7.1966 passed u/s 75-B of the Act is valid?
If the Notifications are valid, are they liable to be cancelled in view of the merits of the case?
Whether the appeals A.S. Nos. 647 and 648 of 1983 are maintainable in view of the death of the person who originally filed the suit in the trial
court? Whether the application for amendment of cause title can be ordered?
Thiru B. Kumar, learned Counsel for the appellants submits that the avowed object of the impugned notification under Sections 76-A and 76-
B of the Act is to get over the effect of the judgment of the Supreme Court in S.D.G. Pandara Sannadhi v. State of Madras (1965) 2 M.L.J. 167.
There is no method by which the decision of the Supreme Court could have been avoided, Section 75-A directly interferes with the abovesaid
judgment of the Apex Court. The ordinance and Act cannot have overriding effect on the review power of courts. There can be no valid
notification which provides for continuation of an order quashed by the highest court of the land. So Section 75-A which enables the continuance
of an earlier notification held invalid by the court is void. Section 75-B seeks to continue the notification which was non est or no longer existed.
Ordinance 1 of 1965 and Act 16 of 1965 are colourable legislations to override the effect of the judgment of the Supreme Court. Besides,
contrary to the provisions of the scheme decree and inspite of objections by the trustee of the Rajan Kattalai, funds of that Kattalai have been
diverted for various other purposes not connected with the duties of Rajan kattalai and that the appointment of the Executive Officer to manage the
properties of Rajan Kattalai as per the notification will wreck the trust beyond recognition. The impugned notifications will destroy the
independence of the Kattalai and the remedy is worse than the disease itself. The theory of learned Subordinate Judge that renovation and other
work of the temple require the administration of all the kattalais under one authority has no basis. The renovation work requires primarily
contribution from various kattalais and where it is given no further general control is necessary.
Section 75-A extracted above enables the continuance of all prior notifications including G.O. No. 3069 (Revenue), dated 4.8.1956 for a
period of one year from 16th July, 1965. However the Supreme Court has quashed the said notification on 10.2.1965 in its decision reported in
S.D.G. Pandara Sannadhi v. State of Madras (1965) 2 M.L.J. 167. Thereafter, on 16.7.1965 Madras Ordinance 1 of 1965 was promulgated.
The explanatory statement for the introduction of this Ordinance assumes importance of this case. The statement runs as under:
In Sri Sri-la-Sri Subramania Desika Gnanasambanda Pandarasannadhi v. State of Madras Civil Appeal No. 560 of 1964, the Supreme Court has
held as invalid the Government Notification, dated 4th August, 1956, issued u/s 64(4) of the Madras Hindu Religious and Charitable Endowments
Act, 1951 (Madras Act XIX of 1951) continuing for a period of five years from 30th September, 1956 the notification No. 638 dated 25th May,
1937 declaring that the Sri Thiagarajaswami Temple, Tiruvarur and the specific endowments attached thereto shall be subject to the provisions of
Chapter VI-A of the Madras Hindu Religious Endowments Act, 1926 (Madras Act II of 1927). The grounds on which the Supreme Court struck
down the notification was the failure to comply with the principles of natural justice before issuing the notification. As a result of the above judgment
of the Supreme Court the notification dated the 4th August, 1956 has become unenforceable and as such the Thiagarajaswami Temple, will not be
subject to the provisions of Chapter VI-A of the Madras Hindu Religious and Charitable Endowments Act, 1959 (Madras Act 22 of 1959). The
judgment has given room for doubts as to the validity of all actions taken in pursuance of the notification not only in respect of the temple aforesaid
but also in respect of certain other temples covered by the said notification. The Government have carefully examined the judgment of the Supreme
Court and consider that in the interests of the administration of the religious institutions in question, the above state of affairs cannot be allowed to
continue. Accordingly, the Government propose to validate all such notifications and also all acts and proceedings etc. Taken in pursuance of the
said notification. It is proposed to continue the said notifications for a period up to the date of publication of the ordinance and for a period of one
year thereafter. The ordinance provides for the further continuance of the notifications, after issuing show cause notice to the trustees and other
persons having interest. The Ordinance also confers a right of suit to the parties aggrieved by the continuance of a notification. The draft ordinance
seeks to achieve the above objects.
From this it is evident that the purpose of passing this Ordinance is only to get over the effect of the courts decision which invalidated G.O. No.
3069, dated 4.8.1956.
Learned Counsel for the appellants argues that Government has no power to issue an Ordinance to take away the effect of the judgment of the
Supreme Court. If it chooses to do so, it is violative of the basic structure of the Constitution. In the case of a Validating Act, besides the legislature
possessing competence over the subject-matter by validation legislature must remove the defect which the courts had found in the previous law.
But in this case there was no endeavour to remedy the defect in the impugned notification as pointed out by the Supreme Court in S.D.G. Pandara
Sannadhi v. State of Madras (1965) 2 M.L.J. 167. In support of his contention he cited the decision in I.N. Saxena v. The State of Madhya
Pradesh AIR 1976 S.C. 2250. There the State Government raised the age of compulsory retirement for Government servants to 58 years by a
memorandum. While framing the rules under the proviso to Article 309 of the Constitution, the clause empowering the Government to retire a
Government servant on the attainment of the age of 55 years was not incorporated therein. The appellant, a District and Sessions Judge was
retired from service after he completed 55 years and before he completed 58 years. He successfully challenged tire said order of compulsory
retirement in the Supreme Court. Thereafter, an Ordinance was promulgated which later on became an Act of the Madhya Pradesh Legislature.
The said Act validated the retirement of certain Government servants including the appellant, despite the judgment of the Apex Court. The
appellant again filed a writ petition in the High Court which was dismissed. An appeal to the Supreme Court was also dismissed holding that the
impugned Act cured the defects from which the Memorandum and the orders of retirement made thereunder were suffering. The Supreme Court
has observed as under:
The distinction between a ""Legislative"" act and a ""judicial"" act is well known, though in some specific instances the line which separates one
category from the other may not be easily discernible. Adjudication of the rights of the parties according to law enacted by the legislature is a
judicial function. In the performance of this function, the court interprets and gives effect to the intent and mandate of the legislature as embodied in
the statute. On the other hand, it is for legislature to lay down the law, prescribing norms of conduct which will govern parties and transactions and
to require the court to give effect to that law. While, in view of this distinction between legislative and judicial functions, the legislature cannot by a
bare declaration without more, directly over-rule reverse or override a judicial decision; it may, at any time in exercise of the plenary powers
conferred on it by Articles 245 and 246 of the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its
legislative field fundamentally altering or changing with retrospective, curative or neutralising effect the conditions on which such decision is based.
As pointed out by Ray, C.J. in Smt. Indira Nehru Gandhi Vs. Shri Raj Narain and Another, , the rendering ineffective of judgments or orders of
competent courts and tribunals by changing their basis by legislative enactment is a well-known pattern of all validating Acts. Such validating
legislation which removes the causes for ineffectivesness or invalidity of actions or proceedings is not an encroachment on judicial power.
As stated earlier the impugned G.O. was held invalid for the reason that it was issued without giving an opportunity to the appellant to show cause
why the earlier notification should not be extended. Evidently there has been no endeavour in the present enactment to rectify this defect before
validating the notification for one year. Instead the only purpose of Section 75-A appears to be to keep the earlier notification alive with all its
infirmities pointed out by the courts.
In the matter of : In the matter of : CAUVERY WATER DISPUTES TRIBUNAL, , the next decision cited by learned Counsel for the
appellants, the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 was held unconstitutional for the reason that the Ordinance directly
nullified the decision of the Tribunal dated 25th June, 1991. While doing so, the Supreme Court pointed out that the legislature can change the
basis on which a decision is given by the Court and thus change the law in general, which will affect a class of persons and events at large. It
cannot, however, set aside an individual decision inter-parties and affect their rights and liabilities alone. Such an act on the part of the legislature
amounts to exercising the judicial power of the State and to functioning as an appellate court or tribunal.
In Madan Mohan Pathak and Another Vs. Union of India (UOI) and Others, , a settlement was arrived at between the Life Insurance
Corporation of India and its employees relating to the terms and conditions of service of Class III and Class IV employees including bonus payable
to them. The Payment of Bonus (Amendment) Act, 1976 considerably curtailed the rights of the employees to bonus in industrial establishments.
But by reason of Section 52 of the Payment of Bonus Act, the L.I.C. was outside the purview of its operation. The Central Government decided
that the employees of establishments which were not covered by the Bonus Act would not be eligible for payment of bonus. Thereupon L.I.C. was
advised by the Ministry of Finance, Government of India, that no further payment of bonus should be made to its employees without getting the
same cleared by the Government. The Corporation accordingly issue instructions not to pay bonus to its employees until further instructions.
Thereupon, the Employees Association moved the High Court for issue of a writ directing the Life Insurance Corporation to act in accordance with
the terms of an earlier settlement. A single Judge of the High Court allowed the writ petition. While the Letters Patent Appeal was pending
Parliament passed the Life Insurance Corporation (Modification of Settlement) Act, 1976. So there was no necessity for proceeding with the
Letters Patent Appeal. And the Division Bench made no order therein. Then two of the Employees'' Associations filed writ petitions in the
Supreme Court challenging the constitutional validity of the Payment of Bonus Amendment Act, 1976. Held that it would be unfair to adopt the
legislative procedure to undo a settlement which had become the basis of the decision of a High Court. Even if legislation can remove the basis of a
decision it has to do it by an alteration of general rights of a class but not by simply excluding two specific settlements between the Corporation and
its employees from the purview of Section 18 of the Industrial Disputes Act. Since the object of the impugned Act was in effect to takeaway the
force of the judgment of the High Court, it would be invalid for trenching upon the judicial power. Even if an impugned legislation seeks to take
away the basis of the judgment without mentioning it, yet where the rights of the citizens against the State are concerned the court should adopt an
interpretation which upholds those rights. Therefore, the rights which had passed into those embodied in a judgment and become the basis of a
mandamus from the High Court, could not be taken away in an indirect fashion.
Let another decision relied on by learned Counsel for the appellants is P. Sambamurthy v. State of Andhra Pradesh AIR 1987 S.C. 663.
There the Apex Court held that it is a basic principle of the rule of law that the exercise of power by the executive or any other authority must not
only be conditioned by the Constitution, but must also be in accordance with law and the power of judicial review is conferred by the Constitution
with a view to ensuring that the law is observed and there is compliance with the requirement of law on the part of the executive and other
authorities, It is through the power of judicial review conferred on an independent institutional authority such as the High Court that the rule of law
is maintained and every organ of the State is kept within the limits of the law. Now if the exercise of the power of judicial review can be set at
naught by the State Government by overriding the decision given against it, it would sound the death knell of the rule of law. The rule of law would
cease to have any meaning, because then it would be open to the State Government to defy the law and yet to get away with it.
On the ratio laid down in the decisions referred to above, the enactment of Section 75-A cannot stand the test of Judicial scrutiny. In the
present case, by introducing Section 75-A the Legislature has simply directed the Commissioner of Hindu Religious and Charitable Endowments
and Executive Officer of Sri Thiyagarajaswami Temple to disobey or disregard the decision of the highest court of the land in S.D.G. Pandara
Sannadhi v. State of Madras (1965) 2 M.L.J. 167. The obvious purpose of Section 75-A extending the impugned notification is to nullify the effect
of this decision of the Supreme Court. The object in the explanatory note Ex. B-33 makes no secret of the said fact and in fact the written
statements filed on behalf of the Department and the Government aver that the courts scheme was not conducive to the proper administration of
the Kattalais or the supervision thereof. The steps were taken to notify. The temple and the various Kattalais attached thereto. After the judgment
of the Supreme Court in (1965) 2 M.L.J. 167, the Government felt that the existing state of affairs cannot be allowed to continue and so in the
interest of proper administration of all the religious institutions including that of Sri Thiyagarajaswami temple it was imperative to continue the earlier
notifications beyond 15.7.1966. No doubt the Legislatures under the Constitution have, within the prescribed limits, power to make laws
prospectively as well as retrospectively. By exercise of those powers a legislature can remove the basis of the decision rendered by a competent
court thereby rendering the decision ineffective. But no Legislature in the country has power to set aside an individual decision inter-parties and
affect their rights and liabilities alone. In the words of their Lordships of the Supreme Court in In the matter of : CAUVERY WATER DISPUTES
TRIBUNAL, , such an act on the part of the Legislature amounts to exercising the Judicial power of the State and to functioning as an appellate
Court or Tribunal. Since notification in G.O. No. 3069, dated 4.8.1956 is simply declared to be valid u/s 75-A this section makes a direct inroad
into the judicial powers of the State, and so it has necessarily to be struck down so far as the notification is concerned.
Section 75-B of the Act enables the Commissioner to continue any notification which was validated by virtue of Section 75-A beyond 16th
July, 1966 after calling upon the trustee concerned to show cause why it should not be so continued. Notification No. 638, dated 25.5.1937 is
statutorily extended till 16.7.1965 and for a period of one year later in view of Section 75-A of the Act read with G.O. No. 3069 (Revenue),
dated 13.7.1956. Notification No. 2347 (Revenue), dated 13.7.1966 was issued declaring that the Notification No. 638 would continue beyond
15.7.1966. We have already seen that there could be no valid extension of the notification u/s 75-A. Learned Counsel for the appellants next
contends that where a notification is quashed its existence ceases. There can be no order continuing that which does not exist. In other words,
there can be no law which seeks to extend the provisions of a rule which is non-est. By the time G.O. No. 2347 (Revenue), dated 13.7.1966 was
published, Notification No. 638, dated 25.5.1937, was no longer in existence by virtue of the decision of the Supreme Court. So there is
substance in the claim of learned Counsel for the appellants that the G.O. No. 2347 passed u/s 75-B of the Act is not valid.
Thiru M.N. Padmanabhan, learned Counsel for the respondents submitted that Sri Thiyagarajaswami Temple has no property of its own. For
its daily pooja expenses it depends on the various kattalais attached to it. The bickerings and quarrels among the trustee or Kattalaidars even in
small matters made the temple to suffer for its requirements. This is sufficient to show that even for daily pooja co-ordination among various
kattalaidars is necessary. And so the trial court was justified in dismissing the suit for the reason that there is imperative necessity for the central
agency for co-ordination of the functions of the various kattalais. The kattalais cannot serve the purpose without the temple. The properties of the
temple are distributed among the kattalais which are under separate trustees and the maintenance of the temple, its services and festivals depend
upon the kattalais being administered in proper co-ordination. The Executive Officer appointed under the notification has been able to regulate the
maintenance of the services in the temple by the various kattalais and to administer the temple smoothly all these years. And a Central agency
under the control of H.R. and C.E. Board is essential to maintain the services of various kattalais. Evidently this cannot be a ground for validating
the impugned notifications. In fact, learned Subordinate Judge himself has found that the Executive Officer was not acting in the best interests of the
kattalai. The Department can always regulate the services of the temple by ensuring that the various kattalaidars make their contributions properly.
And in view of our decision that the notifications are not valid, it is not necessary to go into the merits of the case.
O.S. No. 11 of 1968 as well as O.S. No. 15 of 1968 were instituted by Sri-la-Sri Kailai Subramania Desika Gnanasambanda Pandara
Sannadhi, sole and hereditary trustee of Rajan Kattalai attached to Thiyagarajaswami Devasthanam at Tiruvarur, residing at Dharmapuram Mutt,
Mayuram Taluk and Munsif. During the pendency of the suits, on 10.11.1971 the said Subramania Desika Gnanasambanda Pandara Sannadhi
Avergal attained Paripoornam. Then Sri-la-Sri Shanmuga Desika Gnanasambands Pandara Sannadhi was installed as the Adheenakarthar and
Pandara Sannadhi of Dharmapuram Mutt. By virtue of his office he became the hereditary trustee of Rajan Kattalai also. In I.A. No. 128 of 1972
in O.S. No. 15 of 1968 the said Shanmuga Desika Gnanasambanda Pandara Sannadhi got him substituted as the plaintiff in the place of Sri
Subramania Desika in his capacity as the sole and hereditary trustee of Rajan Kattalai. This order of substitution was passed by learned
Subordinate Judge in an application by Shanmuga Desika under Order 22, Rule 10 and Section 151, C.P.C. However, there was neitheran
application for the consequential amendment of the plaint for the substitution was carried out in the original plaint in O.S. No. 15 of 1968. It does
not appear that there was any application for substitution of the new incumbent of the office in O.S. No. 11 of 1968. When the judgment and
decrees were passed on 17.5.1980 in the two suits O.S. Nos. 11 and 15 of 1968 the name of Subramania Desika alone was on record. The
present appeals A.S. Nos. 647 and 648 of 1983 on the file of this Court were also instituted only in the name of Sri Subramania Desika though
thevakalath in favour of the appellant''s counsel was signed by Shanmugha Desika Sri. M.N. Padmanabhan learned Senior Counsel for the
respondents argued that the appeals having been filed in the name of a dead person, they are not valid. In support of his contention he places
reliance on Khetramohan Baral and Others Vs. Moni Behera and Others, . There one of the plaintiffs was reported to be dead during the
pendency of the suit in the Court of the District Munsif. His daughter applied for being substituted in place of her father and for amending the plaint
accordingly. This was allowed. But due to some negligence in the Munsifs office this order was not implemented and the plaint was not corrected.
The parties also omitted to remind the court about the matter, with the result that when the judgment was pronounced in favour of the plaintiffs and
when the decree was drawn up the name of the father continued to be shown as one of the plaintiffs in the decree. In the decree of the lower
appellate court also, the same error continued. But during the pendency of the second appeal the defendants appellants discovered the mistake and
they applied to the High Court to allow the substitution of the name of the daughter in place of the father, in case the court did not hold the decree
of the lower appellate court a nullity. The Division Bench of the Orissa High Court held that once petition for substitution by the legal representative
was allowed she was entitled to assume that the court would implement its own order in due course. As the daughter was not made a party either
in the lower appellate court, or in the High Court, the appeal must abate so far as her interest in the suit property was concerned. As her interests
were joint with those of the other plaintiffs and not severable, the consequence must necessarily be the abatement of the entire appeal as a whole.
Otherwise there will be a conflict between the decision of two courts in respect of the same property which must be avoided. The ruling in that
case is only against the respondents and not in their favour.
As we have already stated, in I.A. No. 128 of 1972 in O.S. No. 15 of 1968 the trial court had permitted the present Pandara Sannadhi to
come on record in the place of the former Adheenakarthar who attained Paripporanam on 10.11.1971. It is true that there is no subsequent
application by the plaintiff seeking permission of the court to amend the cause title of the plaint consequent to the order in I.A. No. 128 of 1972.
Thiru M.N. Padmanabhan, learned senior counsel for the respondents pleaded that it was incumbent on the part of the plaintiffs to come forward
with an application for the consequential amendment and to carry out the same in the original plaint. On his failure to do so, it is as if that the decree
of the trial court had been passed against a dead person and the present appeals have also been instituted by a person who was not in existence at
that time and as a result of the same these appeals are non-est. But he is unable to point out any provision either in the CPC of Civil Rules of
Practice or the Appellate Side Rules of the High Court for such a proposition. From the scheme of CPC we find that Order 22 deals with death,
marriage and insolvency of parties. The procedure to be followed in case of death of one of several plaintiffs or of sole plaintiff is stated in Rule 3
of Order 22. The relevant part of this rule reads that where one of two or more plaintiffs dies or a sole plaintiff dies and the right to sue survives the
court on an application made in that behalf shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with
the suit. As per Sub-rule (2) of Rule 3, where within the time limited by law no such application is made the suit shall abate so far as the deceased
plaintiff is concerned. And this Order 22 nowhere states that besides taking steps to come on record as the legal representative of the deceased
plaintiff, the said legal representative is enjoined to do anything else. It was represented during arguments by learned Counsel for the respondents
that all the subordinate courts insists filing an application for consequential amendment of plaint whenever a legal representative of either plaintiff or
defendant is ordered to be impleaded. However, we do not think that such a procedure is warranted either by the CPC or the Civil Rules of
Practice. So the failure on the part of the appellant to get the plaint amended and to carry out the amendment in the original plaint consequent to the
order passed in I.A. No. 128 of 1972 in O.S. No. 15 of 1968 cannot be fatal to the appeal as claimed by the respondents. In all cases where a
new party is impleaded in a suit as a legal representative or otherwise, the original plaint must be suitably amended by the office of the court and
attested in red ink by the Presiding Officer. A reference to the number of the petition and the date of order must be made in red ink as usually
done. The plaintiff must file a true copy of the plaint carrying out the amendment along with a memo referring to the particulars of the order of the
court.
It is also significant to note that I.A. No. 128 of 1972 is not an application under Order 22, Rule 3. Instead, it is one under Order 22, Rule 10,
C.P.C. for the substitution of the new Pandara Sannadhi and Hereditary Trustee in the place of the deceased Pandara Sannadhi and Hereditary
Trustee. The new trustee has to come on record not as the legal representative of the deceased plaintiff but for the reason that there has been a
devolution of interest during the pendency of the suit on account of the passing away of the previous trustee. In Thirumalai v. Arunachella AIR
1926 Mad. 540, a single Judge of this Court has held that the trustees are not legal representatives within the meaning of the expression in Section
2(ii), C.P.C. of their predecessors-in-office. Where some of the trustees die or retire during the pendency of a suit and new persons are elected to
fill their place: it is a case of devolution of interest during the pendency of a suit and the elected persons can be added as parties under Order 22,
Rule 10, C.P.C notwithstanding the question of limitation.
A Division Bench of this Court has held in Viswanathaswami Devasthanam v. Koodalinga AIR 1928 Mad. 246, that the mere fact of the
appointment of new trustees by the temple committee even though the new trustees did not take over charge of the office of trusteeship does not
render a nullity the decree and judgment passed by the court of competent jurisdiction against the Devasthanam. The mere resignation by a trustee
being accepted does not tend the whole proceeding to the same position as in the case of the death of a party. There is no provision in the Civil
Procedure Code, with regard to new trustees being brought on record. In the absence of any such provision the dismissal or resignation of one
trustee and the appointment of another can only be regarded in the light of what is called in Rule 10, Order 22, Civil Procedure Code, a devolution
of interest. If, pending the proceeding there is a devolution interest, that is the right or interest by virtue of which the proceedings was originally
instituted comes to be transferred to or to be vested in some third party, the CPC allows such a new person to come in and implead himself or to
be brought on the record, otherwise. It was argued on behalf of the appellants in that case that the idol no doubt is a juristic person but there must
be other persons who must sue or be sued in respect of the rights vested in the idol and if a trustee sues as a person entitled to do so on behalf of
an idol he ceases to be a person competent to represent the idol the moment he ceased to be a trustee either by death or resignation. The Division
Bench found that there was no doubt some force in the argument so advanced. However, it pointed out that it has often been held that the
judgments in respect of temples and idols obtained by or against de facto trustees thereof are binding if otherwise unassailable in the same manner
and the same extent as if they had been obtained by or against trustee de jure. If the true theory is that it is only persons who as the trustees or
otherwise competent to enforce the rights of temples or idols that should as parties to the suit sue or be sued, then as the suit or appeal in this case
has been properly instituted, there must be some provision of law which makes such a proceeding incompetent before it can be argued that a
judgment or decree passed therein is a nullity. There is a provision in the CPC to the effect that on the death of a party a legal representative should
be brought on the record within a particular time limited and in default the proceeding abates subject of course to other remedical measures. There
is no such provision with regard to trustees. In the absence of any such provision it seems to them that the dismissal or resignation of one trustee
and the appointment of another can only be regarded in light of what is called in the CPC in Rule 10, Order 22, ""devolution of any interest."" It is
significant that the legislature in that rule uses the words ""any interest"" and a right to maintain a suit must certainly be regarded as an interest within
the meaning of that rule. If therefore, pending the proceeding there is a devolution of interest, that is, the right or interest by virtue of which the
proceeding was originally instituted comes to be transferred to or to be vested in some third party, the CPC allows such a new person to come in
and implead himself or to be brought on the record otherwise. But the whole policy of the Code is that if the proceeding originally instituted is
proper and right any decision obtained therein is binding on all persons on whom the interest or right may devolve pending the disposal of the
proceeding. If that is the true theory of the CPC then it seems to them that there is really no difficulty at all in that case. It was no doubt open to the
new trustees if an when appointed to apply to the court to be brought on the record and make, themselves parties to the appeal. That they did not
do, and there being no specific or positive provision by which the appeal or proceeding can be said to have abated on the resignation or dismissal
even of a person holding the representative character, it is difficult to agree with the contention put forward on behalf of the appellants, and hold
that on the mere resignation by a trustee being accepted the whole proceeding tends to the same position as in the case of the death of a party. If
the legislature had intended any such result surely it would have provided for it.
In Sri Pushpagiri Mutt, by its Peedathipathi Sri Vidya Nrusimha Bharathy Swamy Varu Vs. Ramalinga Sastri and Others, , an Executive
Officer was appointed for the plaintiff-Mutt by the Commissioner of Hindu Religious and Charitable Endowments Andhra Pradesh, in pursuance of
a scheme framed therefor. The plaintiff-Mutt filed the suit for a declaration and possession regarding some house in Park Town, Madras. The
plaintiff Mutt was described in the pleading as the Executive Officer of Sri Pushpagiri Mutt, Cuddappah, Cuddappah District. While the suit was
part-heard it was dismissed for default. The application for restoration was also dismissed. Thereupon, the Mutt filed a civil miscellaneous appeal
with the same cause title. During the pendency of C.M.A. an application was filed for permission for amend the cause title by substituting a new
one in the name of the Peedathipathy of the Mutt represented by its Manager. That petition was dismissed by the trial court and the revision
preferred to this Court against that order was also dismissed for default. Thereafter, the trial court dismissed the C.M.A. on the reasoning that the
Executive Officer of the Mutt was not competent to maintain the appeal in view of the order of dismissal passed in the C.M.P. Thereafter, there
was a revision to this Court and Nainar Sundaram, J. (as he then was) has held:
Any change in the representation of the plaintiff-Mutt due to change of circumstances or subsequent events can be taken note of, and the plaintiff-
Mutt must be allowed to bring in the proper representative on record in the lis. Proper representation of the party is a question of description of the
party, and not one of addition of new parties. Neither the description of the plaintiff-Mutt in the appeal Memorandum in C.M.A. No. 65 of 1972,
which has merely carried over and adopted the description in the suit, nor the description that was sought to be introduced in the application,
C.M.P. No. 1013, is a proper one; and it does not bring to the forefront the patent fact that it is really ""Sri Pushpagiri Mutt, Cuddappah"" who is
the plaintiff in the suit and the appellant in the appeal. Viewed in the above light, and taking into consideration the features of the case, as disclosed
above there was no warrant in law for the court below, to dismiss the appeal.
In Gopala Krishnayya v. Lakshmana Rao 49 M.L.J. 590, the sole respondent was alive when the lower appellate court passed its decree but
he was dead within the second appeal was filed in the High Court. In an application to direct the amendment of cause title in the second appeal by
substituting the name of the legal representative in the place of the deceased respondent the Full Bench has held that if an appeal is presented
against a person who was dead at the date of presentation, the court, may u/s 153, Civil Procedure Code, permit the cause title to be amended or
may return the appeal memorandum for amendment and representation. But the court will, if the appeal is out of time against the legal
representative, have to excuse the delay in presentation before it can proceed to hear the appeal. Although the appeal may be incompetent owing
to the wrong person being named as respondent, the court which deals with it is acting in a proceeding in a suit and as such has full power u/s 153
to direct an amendment of the appeal memorandum. The court has power to amend the cause title but that it is a matter for its discretion whether it
should excuse the delay in presentation.
Though the ratio laid down in the last two decisions cited by learned Counsel may not be of much assistance in the present proceedings, the
principle enunciated in the Sivakasi Viswanathaswami Devasthanam and Others Vs. Koodalinga Nadan and Others, , governs the controversy
herein. As pointed out in that case succession of one trustee by another is only a case of devolution of interest as contemplated under Order 22,
Rule 10, C.P.C. Abatement of suit comes in under Order 22, Rule 3(2) or Order 22, Rule 4(3) only on the failure to bring on record the legal
representative of the concerned plaintiff or defendant as the ease may be. But these provisions do not apply in the case of death of a trustee. There
is no provision in the CPC with regard to new trustee being brought on record. In the absence of any provision analogous to Order 22, Rule 3(2)
we are not inclined to accept the contention of learned Counsel for the respondents that either the appeals had abated on the omission to enter the
name of ""Shanmugha Desika"" on record after the demise of the previous Adheenakarathar or the appeals were not properly instituted on behalf of
Rajan Kattalai this is only a case of proper description of the appellant and not one of addition of new party. And we are of the view that, C.M.P.
Nos. 13481 and 13483 of 1993 to amend the cause title and to substitute the present hereditary trustee in the place of the deceased
Adhennakarthar have to be allowed.
C.M.P. No. 13482 of 1993 by the appellant in A.S. No. 648 of 1983 is to admit the special audit report of the H.R. & C. E. Department
relating to Fasli years 1393 to 1397 as additional documents in that appeal. Since we have found that there is no necessity to go into the merits of
the case, this petition has to be dismissed as unnecessary.
In the result, the appeals are allowed and the judgment and decrees of the trial court are set aside and the suits are decreed as prayed for.
Parties are directed to bear their respective costs throughout. C.M.P. Nos. 13481 and 13483 of 1993 are allowed arid C.M.P. No. 13482 of
1993 is dismissed. No cost.