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TMI Blog2015 (11) TMI 1839X X X X Extracts X X X X X X X X Extracts X X X X ..... other three trustees. As regards Clause 12, in the view that we have taken about the office of the treasurer and having regard to the representations that have been made regarding the funds of the Devasthanam we are of opinion that instead of a treasurer, the trustees should be directed to appoint a cashier on a salary of ₹ 75-0-0 per mensem. As was done with reference to the Conjeevaram scheme we think liberty should be given to any of the trustees or any member of the Committee or to the 1st plaintiff in this case to move the Court for such alterations in the scheme as seem desirable in the light of the experience that may have been gained of its working. Appeal disposed off. - - - - - Dated:- 19-11-2015 - John Wallis, C.J. 1. These are appeals from a, decree of the Subordinate Judge of Trichinopoly framing a scheme for the management of the temples at Srirangam. The case is one of great importance because this is admittedly the first time a scheme has been framed under what is now Section 92 of the Civil Procedure Code for a temple subject to a Temple Committee under Act XX of 1863, In the Lower Court all parties appear to have been willing that a scheme sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to strong objections Which were taken to this course by certain persons in England, the Board were ordered to withdraw as far as possible from the active management of Hindu Temples. No alteration however was made at the time in their statutory powers and duties under the Regulation and it was not until the passing of Act XX of 1863 that the situation was regularised and the powers exercised by the Board under the Regulation were transferred to Temple Committees constituted under that Act in the case of temples in which the nomination of the trustee, manager or superintendent thereof at the time of the passing of this Act (1863) was vested in or subject to the confirmation of Government. This is the effect of Section 3 and Sections 7 to 12 of the Act, Sections 4 to 6 dealing with cases in which the right of appointment was not vested in Government. Section 13 imposes upon all trustees, managers and superintendents the duty of keeping accounts and empowers and requires the Temple Committees to require the production of such accounts at least once a year. Lastly Sections 14 and 18 provide for the institution with the preliminary leave of the Court of suits by persons interested again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to fetter the Committee unduly, and I think that the able judgment of Davies, J. in Seshadri Ayyangar v. Nataraja Ayyar (1898) I.L.R. 21 M. 179, with which Collins, C.J. agreed in the main and the recent decisions in Venkatachala Pillai v. The Taluq Board, Saidapet (1910) I.L.R. 34 M. 375, and Thiruvengadatha Aiyangar v. Ponnappa Aiyangar (1915) 28 M.L.J. 209, are more in conformity with the terms of the Act and the intention of the legislature. 4. It is necessary to consider One of these decisions more particularly, as the contention has been raised for the 1st plaintiff that the Temple Committee has no power over the Srirangam Devasthanam, because at the coming into force of the Act of 1863 one of the trustees under an arrangement made by the Board of Revenue had become hereditary as heldHn Ganapathi Ayyar v. Sri Vedavyasa Alasinga Bhattar (1906) I.L.R. 29 M. 534. That one trusteeship is hereditary is no doubt res judicata as between the Committee and the hereditary trustee by reason of that decision. Mr. T.V. Venkatrama Aiyar who appeared for the Committee stated that there is evidence to show that the Board never appointed any hereditary trustee, and alleged that they had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further was disapproved in Attorney-General v. Payne 27 Beav. 168. In my opinion the most helpful authority cited before us was the Judgment of Chitty, J. in Attorney-General v. Governors of Christ's Hospital (1896) 1 Ch. 879 at p. 888. The learned Judge observed I prefer to state my own opinion broadly. I hold that it is beyond the jurisdiction of the Court to sanction the Attorney-General's scheme in the, face of the opposition of the existing governing body. Their, title is founded on Royal Charter, and is established by, Act of Parliament. To whatever lengths the Court may have gone, it has never assumed legislative authority; it has never by a stroke of the pen at one and the same time revoked a Royal Charter and repealed an Act of Parliament. It has never ousted from its, rights of administering the charitable trusts such a body as the present governors against their will, and that, too, in a case where no breach of trust is charged. There is no, authority in the books for any such proposition. Yet such is the proposition which underlies the Attorney-General's scheme. I consider that I am not at liberty to deprive the existing governing body of their right of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer of the trustees should be appointed to perform duties similar to those assigned to the treasurer but under the trustees. As regards finance we think it should, be the duty of the trustees to prepare a budget annually and submit it to the Committee under whose superintendence they are. We also think an audit should be insisted on. It has been arranged that the 1st plaintiff should submit a revised scheme or schemes on these lines in one month. There will be no order as to costs in this Court. Seshagiri Aiyar, J. 8. I agree with my Lord. If I travel over the same ground in my judgment, it is because the points raised in appeal are of far reaching consequences. 9. Two questions have been raised affecting, to a great extent, the jurisdiction of the Civil Courts. Mr. Venkatrama Aiyar on behalf of the Committee broadly contended at the outset that the scheme sanctioned by the Subordinate Judge was within the powers of the Trichinopoly Temple Committee and that consequently it is ultra vires of the Civil Courts to frame a scheme. A somewhat modified contention was advanced at a later stage that all the provisions in the scheme which interfered with the statutory powers o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence might have been forthcoming to show that the term hereditary has been loosely applied in this case. I agree with the learned Chief Justice that this temple comes under Section 3 of Act XX of 1863 and that the Committee has jurisdiction over it. 11. The question whether the aid of the Civil Courts can be invoked to frame a scheme when a statutory body like the Temple Committee has the right of superintendence is a far more difficult one. 12. There are no reliable data regarding the exercise of supervision by the ancient kings of the land over temples. The text of Narada which says ^^jkK ,ofg nkl% L;kr~ izozT;koflrks uj%** that a king can reduce to slavery a sanyasin who is guilty of incontinence, seems to suggest that over religious bodies and institutions, the king had a general power of supervision. Beyond this cryptical saying, there seems to be no authority regarding the jurisdiction of the ancient sovereigns over Hindu temples. When and at what stage the ancient sovereigns exercised superintendence over religious institutions, it is not necessary to consider. In Rajah Muttu Ramalinga Setupati v. Perianayagam Pillai (1874) 1 I.A. 209, the Judicial Committee say that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Courts of both law and equity and that they exercised jurisdiction over religious and charitable institutions in the same way as Courts of Chancery did in England. 13. I shall next consider whether the Court of Chancery in England would have had jurisdiction to frame a scheme like the one we are now considering, with special reference to the fact that the Temple Committees as statutory bodies had certain powers delegated to them. It was pointed out in 1 I.A. 209 that the powers delegated to the Board were analogous to the powers conferred on visitors in England. The nature of the powers possessed by visitors is not easily ascertainable. In Phillips v. Bury (1788) 2 T.R. 346 at p. 352, Holt, C.J., thus describes the functions of a visitor : an authority to inspect the actions and regulate the behaviour of the members that partake of the charity,...to prevent all perverting of the charity, or to compose differences. In Tudor on Charities, the visitatorial tribunal is described as a domestic forum, the court of the founder. It was pointed out in Green v. Rutherforth (1750) 1 Ves. Sen. 462 Eng. Rep. 1144 that the visitor's powers are circumscribed by those given him by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lassification of liabilities relating to trust : There is that class where there is a liability existing at common law, and which is only re-enacted by the statute with a special form of remedy; there, unless the statute contains words necessarily excluding the common law remedy, the plaintiff has his election of proceeding either under the statute or at common law. Then there is a second class, which consists of those cases in which a statute has created a liability, but has given no special remedy for it; there the party may adopt an action of debt or other remedy at common law to enforce it. The third class is where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it. In my opinion, the Temple Committees come under the first of these classes. I have already referred to the right possessed by the Crown over all religious institutions. The general right possessed by the subject to ask the Courts' assistance to set right abuses and to have a scheme framed independent of the statute has been recognised in numerous decisions. See Karuppa v. Arumuga (1882) I.L.R. 5 M. 383. Giyana Sambandha Pandara Sannadhi v. Kandasami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en away by reason of the visitorship of the Bishop of Winchester. If this were the law, it would be very unfortunate, for it does not require the history of this case to teach us that the visitorship, vested in any one, whether a corporation sole or aggregate, or the heir of the founder, is a mere nominal office, the duties and functions of which are rarely, if ever, spontaneously performed. But the law is not so. Where there is a clear and distinct trust, this Court administers and enforces it as much where there is a visitor as where there is none. This is clear, both on principle and authority. The visitor has a common law office and common law duties to perform, and does not superintend the performance of the trust which belong to the1 various officers, which he may take care to see are properly kept up and appointed. Green v. Rutherforth (1750) 1 Ves. Sen. 462, 27 Eng. Rep. 1144, Ex-parte Berkhampstead Free School (1913) 2 Ves. Beames. 134 and several other cases, expressly establish the authority of this Court in cases of trusts, and the duty of this Court to see that they are properly performed, notwithstanding that there may be a special or a general visitor. I have made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter v. Vangala Shangaranat Josser (1858) S.D.A. p. 39. I do not think that the view to the contrary held in Bhima Rout v. Dasarathi Dans (1912) I.L.R. 40 C. 323, is consistent with the history of the temple legislation in this country. I shall now deal with the other Sections of the Regulation. Section 2 is the most important of them. The right of general superintendence is wide enough to include the power to appoint additional trustees. I am in agreement with the decision in Thiruvengadatha Aiyangar v. Ponnappa Aiyangar (1914) 28 M.L.J. 209. Even in Ganapathi Aiyar v. Sri Vedavyasa Alasinga Bhattar (1906) I.L.R. 29 M. 534 S.C. 16 M.L.J. 435,. Sir S. Subramania Aiyar, J. says that such appointments can be made for good and sufficient cause. I infer the power to appoint additional trustees from Sections 12 and 13 read with. Section 2. It is not necessary in this case to consider the exact nature of the rights conferred on the Committees by Section 2 : whatever may be involved in the term superintendence, I am of opinion that some of the decisions of this Court to which I shall refer later on have not been shown to be wrong in placing a limit on its import. Further the right of supe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hettiar v. Swaminatha Aiyar (1912) 23 M.L.J. 278. It has also been held that the Committee should not concern itself with the internal. management of the institution. Mayandi Chetti v. Oliver (1898) I.L.R. 22 M. 261 S.C. 8 M.L.J. 196, and Subba Naidu v. Gopalaswanhi Naidu (1905) 15 M.L.J. 185. It stands to reason that when there is a trustee who is responsible for the management of the properties and for their application, his control over the servants of the establishment should not be interfered with by the Committee. The very limited power as to accounts given by the second clause of Section 13 to the Committee bears out; this position. It is doubtful whether the decisions which lay down that no accounts should be called for from hereditary trustees are right. See K. Venkatabalakrishna Chettiar v. Kaliyanaramaiyangar (1868) 5 M.H.C.R. 18, and Fakurudin Sahib v. Ackeni Sahib (1880) I.L.R. 2 M. 197. Section 13 Clause 2 refers to all trustees whether hereditary or otherwise. Section 14 has been much debated during the argument. It is a limited remedy that is given by this section to the public, it only empowers the Court to direct the specific performance of duties which have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trustees subject to the control of the Committee. Clauses 4 to 7 should be omitted in this view. A great deal of discussion centred on the question whether there should be a Vadagalai trustee for this temple. It is true as pointed out by Mr. Rangachariar that the Vadagalai trustee whenever he had an opportunity endeavoured to subvert the uses of the institution by showing his partiality towards the usages of his own sect. But ever since 1893 when the present Vadagalai trustee was appointed, no serious complaints of such a nature have been made against him. Moreover although the temple is mainly Theugalai, the archakar, and pariaharakas are Vadagalais and there are a large number of Vadagalai mirasi offices in this Temple. In order that their interests might be safeguarded there should be a Vadagalai trustee. We see no reason for disagreeing with the Subordinate Judge in regard to this matter. 23. As a counterblast to the argument of Mr. Rangachariar Mr. Narasimha Aiyangar contended that as there is a hereditary Thengalai trustee there was no necessity for the appointment of another Thengalai trustee. The history of this institution shows that the hereditary Thengalai trustee i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am and the minor temples and shrines attached thereto (inclusive of the temple of Sri Pundarikaksha Perumal at Tiruvallarai) and constituting with the said temple the Srirangam Devasthanam and all the properties, movable and immovable which have been or may hereafter be dedicated to the said deity are and shall be vested in the Sri Kanganadhaswami deity. 2 (a). The word Court in this scheme and in the rules that may be framed under this scheme shall mean the Subordinate Judge's Court at Trichmopoly or such other Court of Original Civil Jurisdiction of the lowest grade as may have jurisdiction under Section 92 of Act V. of 1908. 2 (b). The word ''Committee shall mean Trichinopoly Taluq Devasthanam Committee formed under Act XX of 1863. 2 (c). The expression Sri Ranganadhaswami Devasthanam hereinafter referred as the Devasthanam shall mean and include the shrine of Sri Ranganadhaswami at Srirangam and all the Subordinate shrines attached thereto both in Srirangam and outside (inclusive of Sri Pundarikaksha Perumal Temple at Tiruvallai). 3. The administration of the Devasthanarn shall vest in a Board of Trustees subject to the 'control and superinten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation as it may deem necessary, pass the Budget and send it back to the Board of Trustees at least a month before the beginning of the Fasli. (c) If the Budget be not sent by the Board of Trustees as aforesaid, the Committee may, after giving 14 days notice to the Board of Trustees, themselves frame and prepare the Budget and send it to the Board of Trustees. (d) If the Committee fail to send the Budget within the time fixed above, it shall be competent to the Board of Trustees to act upon the Budget sent by them until the Committee send the same approved. (e) The Board of Trustees shall have a permanent advance for urgent expenses of such amount as may be fixed in the rules to be framed in this scheme. But the expenditure which may be incurred by them shall not exceed the provision of the Budget nor shall any extraordinary expenditure be incurred without the special sanction of the Committee. Account and Audits. 11 (a) The accounts shall be audited by an auditor appointed by the Committee upon such remuneration as may be fixed by the Committee, to be paid from the Devasthanani funds. An abstract of the said accounts prepared and certified together with his report sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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