TMI Blog1966 (4) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Assistant Commissioner , for Hindu Religious Endowments, Nellore, alleging mismanagement of the temple and its properties by the first defendant.Notice was issued to the 1st defendant to show cause why the temple properties ghould not be leased out in public auction and the first, defendant contested the application alleging that the properties were not the properties of the temple but they belonged to his family. After enquiry, the Assistant Commissioner submitted a report to the Hindu Religious Endowments Board, Madras, recommending that a scheme of Management may be framed for the administration of the. temple and its properties. The Board thereafter commenced I proceedings for settling a scheme and issued notice to the 1st defendant to state his objections. The 1st defendant reiterated his plea that the temple was not a public temple. The Board held an enquiry and by its order dated October S. 1949 held that the temple was a public one. On January 18, 1950 the 1 st defendant filed O.P. no. 3 of 1950 on the file of the District Judge; Nellore (1) for setting aside the order of the Board dated October 5, 1949 declaring the temple of Sri Kodandaramaswamiwari as a temple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d assignees be liable to pay 12-1/2 putties of Molo golukulu paddy and ₹ 600 every year whether the lands yield any income or not. 10. That the H. R. C. E. Commissioner be. entitled to associate non hereditary trustees not exceeding two. .whenever they consider that such appointment is necessary and in the interests of the management. 11. That the Managing trustee shall be one of the four hereditary trustees or their successors in title only and not the non hereditary trustees; 15. That the right of the 2nd respondent to agitate the matter by separate proceedings will be unaffected by the terms of this compromise to which he is not a party. It is apparent from the terms of the compromise decree that the temple was declared to be a public temple as defined in s. 6, cl,. 17 of the Hindu Religious and Charitable Endowments Act and that the properties set out in Sch. A annexed to the compromise petition were declared, to, be the personal properties of defendants 1 to. S. The, decree created a liability on their part to deliver to the temple for its maintenance 121 putties of paddy and pay- ₹ 600/- cash every year. The Present suit was instituted on October 3 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the setting aside of the compromise decree in O. P. no. 3 of 1950 with regard to the nature of the temple properties. It was contended that in a suit of this description the conditions of s. 42 of the Specific Relief Act are not satisfied and the suit is, therefore, not maintainable. The first question to be considered in this appeal is whether the suit is barred by the provisions of s. 42 of the Specific Relief Act which states: 42. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation-A trustee of property is a person interested to deny a title adverse to the title of some one who is not in-existence, and for whom, if in existence, he would be a trustee. The legal development of the declaratory actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Specific Relief Act. In Fischer v. Secretary of State for India in Council, (26 I.A. 16.) Lord Macnaghten said of this section: Now, in the first place it is at least open to doubt whether the present suit is within the purview of s. 42 of the Specific Relief Act. There can be no doubt as to the origin and purpose of that section. It was intended to introduce the provisions of s. 50 of the Chancery Procedure Act of 1852 (15 16 Vict. c. 86) as interpreted by judicial decision. Before the Act of 1852 it was not the practice of the Court in ordinary suits to make a declaration of right except as introductory to relief which it proceeded to administer. But the present suit is one to which no objection could have been taken before the Act of 1852. It is in substance a suit to have the true construction of a statute declared and to have an act done in contravention of the statute rightly understood pronounced void and of no effect. That is not the sort of declaratory decree which the framers of the Act had in their mind. In Pratab Singh v. Bhabuti Singh,(40 I.A. 182.) the appellants sued for a declaration that a compromise of certain preemption suits and dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On behalf of the respondents reliance was placed on the decision of the Judicial Committee in Sheoparsan Singh v. Ramnandan Prasad Singh( I.L.R. 43 Cal. 694 (P.C.)). In that case, the plaintiffs had prayed for a declaration that a will, probate of which had been granted was not genuine and the Judicial Committee pointed, out that under s. 42 a plaintiff has to be entitled to a legal character or to a rig It, as to property and that the plaintiffs could not predicate this of themselves as they described themselves in the plaint as entitled to the estate in case of an intestacy, whereas, as things stood, there was no intestacy, since the will had been affirmed by a Court exercising appropriate jurisdiction. The suit was, indeed, nothing more than an attempt to evade or annul the adjudication in the testamentary suit. The suit was held to fail at the very outset because the plaintiffs were not clothed with a legal character or title which would authorise them to ask for the declaratory decree sought by their plaint. There is no reference in this case to the previous decision of the Judicial Committee in Fischer v. Secretary of State for India in Council(55 I.A. 96.). In our opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntainable as falling outside the purview of s. 42 of the Specific Relief Act. (1) (6) The next question presented for determination in this case is whether the compromise decree is invalid for the- reason that the Commissioner did not represent the deity. The. High Court has taken the view that the Commissioner could not represent the deity because S. 20 of the Hindu Religious Charitable Endowments Act provided only that the administration of all the endowments shall be under the superintendence and control of the Commissioner. Mr. Babula Reddy took us through all the provisions of the Act but he was not able to satisfy us that the Commissioner had authority to represent the deity in the judicial proceedings. It is true that under s. 20 of the Act the Commissioner is vested with the power of superintendence and control over the temple but that does not mean that he has authority to represent the deity.-;in proceedings before the District Judge under s. 84(2) of the Act. As a matter of law the only person who can represent the deity or who can bring a suit on behalf of the deity is the Shebait, and although a deity is a juridical person capable of holding property, it is only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n dispute are the personal properties of the petitioner s family and not the properties of the temple. Such a declaration was outside the purview of s. 84(2) of Madras Act 11 of 1927 and could not have been granted. We are, therefore, of the opinion that the contention of respondent no. is correct and that he is entitled to a declaratory decree that the compromise decree in O.P. no. 3 of 1950 was not valid and was not binding upon Sri Kodandaramaswami temple. We have gone into the question of the validity of the compromise decree because both the parties to the appeal invited us to decide the question and said that there was no use in court remanding the matter to the trial court on this question and the matter will be unduly protracted. For the reasons expressed, we hold that the decree passed by the trial court should be set aside and the plaintiffrespondent no. I should be granted a declaratory decree that the compromise decree in O.P. no. 3 of 1950 on the file of the District Court Nellore is not valid and binding on Sri Kodandaramaswami temple. Subject to this modification, we dismiss this appeal. The parties will bear their own costs throughout. Appeal dismiss ..... 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