Veruareddi Ramaraghava Reddy & Ors
Vs. Konduru Seshu Reddy & Ors  INSC 113 (26 April 1966)
26/04/1966 RAMASWAMI, V.
CITATION: 1967 AIR 436 1966 SCR 270
R 1975 SC1810 (14)
Specific Relief Act (1 of 1877),s. 42-Suit
by. worshipper for declaration that compromise decree is not binding on.
temple-Suit, is barred.
Madras Hindu Religious Endowments Act (2) of
1927), s. 84(2)Petition for declaration that properties belonged to;
petitioner am not to temple-If maintainable.
The appellants filed an original petition in
the District Court under s. 84(2) of the Madras Hindu Religious Endowments Act,
1927 for setting aside an order of the Endowments Board that a temple was a
public temple and for a declaration that it was a private temple. The
Commissioner of the Endowments 'Board and: a worship pewere the contesting
respondents to the petition. Pending its disposal the 1927 Act was repealed by
the Hindu Religious and Charles ble Endowments Act of 1951. After the passing
of the new Act the petition was amended by the addition of a prayer for a
further declaration that the properties in dispute were the personal property
of the appellants' family. Thereafter, a compromise decree between the appellants
and the Commissioner wag passed. by which it was declared that the temple was a
public temple, that the properties were the personal properties of the
appellants but that the appeal ants were liable to make annual payments in cash
and kind to the temple for its maintenance. 'The worshipper, who was not a
part, to the compromise decree, filed the present suit for a declaration that
the Compromise decree was not binding on the temple.
On the questions whether: (i) the suit was
not barred by the provisions of s. 42 of the Specific Relief Act, 1877, and
(ii) the compromise decree was invalid.
HELD: (i) Section 42 of the Specific Relief
Act is not exhaustive of the cases in which a declaratory decree may be made an
courts have power to grant such a decree independently of the requirements of
the section. The relief sought for in the present case ,was for a declaration
that the compromise decree was null and voice Such a declaration is in itself a
substantial relief and has immediate coercive effect and the deity would be
restored to its right in the trust properties. The suit fell outside the
purview of s. 4 and would be governed by the general provisions of the Civil
Procedure Code and was therefore maintainable even though the worshiper was not
suing as a person entitled to any legal character or the any, right as to any
property as required by s. 42 of the Specific Relief Act. [276 E; 277 F-G] Case
law referred to.
(ii) The compromise decree was not valid and
binding on the, temple, because, the deity was not a party to it through any
271 Though under s. 20 of the 1927 Act the
Commissioner was vested with the power of superintendence and control over the
temple, it does not mean that he has authority to represent the deity in
proceedings before the District Judge under s. 84(2) of the Act. Further, the
compromise decree was beyond the scope of the proceedings, because, a
declaration that the properties in dispute were the 'Personal. properties of
the appellants' family and not of the temple, was outside the purview of s.
84(2). [278 A-B, F, H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 265 of 1964.
Appeal from the judgment and order dated
August 7, 1962 of the Andhra Pradesh High Court in Appeal Suit No. 312 of 57.
F. Babula Reddy, K. Rajendra Chaudhuri and K.
R. Chaudhuri, for the appellants.
P. Rama Reddy and A. V. V. Nair, for
respondent No. 1.
T.V. R. Tatachari, for respondent No. 2.
The Judgment of the Court was delivered by
Ramaswami, J This appeal is brought by certificate on behalf of the defendants
against the judgment of the High Court of Andhra pradesh dated August 7, 1962
in Appeal Suit No. 312 of 1957.
In the village of Varagali, in the district
of Nellore, there is a temple in which is enshrined the idol of Sri
Kodandaramaswami. The temple was built in the middle of the last century by one
Burla Rangareddi who managed the affairs of the temple and its properties
during his lifetime.
After his death his son, Venkata Subbareddi
is in management. By a deed dated August 19 1898 Venkata Subbareddi
relinquished his interest in' the properties in favour of one Vemareddi
Rangareddy whose family members are defendants 1 to 5. The plaintiff filed a
petition before 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 should 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 1st defendant filed O.P. no. 3 of 1950 on the file of the District
Nellore (1) for setting aside the order of
the Board 'dated 272 October 5, 1949 declaring the temple of Sri
Kodandaramaswamiwari as a temple defined in s. 6, cl. 17 of the Act, (2) for a
declaration that the temple was a private temple and (3) for a declaration that
the properties set out in the schedule annexed to the petition were the
personal properties of his family and they did not constitute the temple
properties. Originally the Commissioner. Hindu Religious Endowment Board,
Madras was impleaded as the sole respondent in the petition. The present
plaintiff later on got himself impleaded as the 2nd respondent therein. Both
the respondent$ contested the petition on the ground that the temple was a
public temple and that the properties mentioned in the schedule were the
properties of the temple and not the personal properties of the 1st defendant.
For reasons which are not apparent on the record the petition was not disposed
of for a number of years. In the meantime Madras Act II of 1927 was repealed and
the Hindu Religious and Charitable Endowments Act of 1951 was enacted. Then
came the formation of the State of Andhra Pradesh. By reason of these changes
the Commissioner of Hindu Religious Endowments in the State of Andhra Pradesh
was impleaded as the 1st respondent to the petition. Thereafter, there was a
compromise between the petitioners 1 to 5 on the one, hand and the
Commissioner, the 1st respondent on the other. The District Judge, Nellore
recorded the compromise and passed a decree in terms thereof by his order dated
October 28, 1954, The material clauses of the compromise decree, Ex. B-11 are
as follows'.That Sri kodandaramaswami temple, Varagali, be and hereby is
declared as a temple as defined in section 6. clause 17 of the Hindu Religious
and Charitable Endowments Act;
2. That petitioners 1 to 4 be and hereby are,
declared as the present hereditary trustees of the said temple.
3. That the properties set out in schedule A
filed herewith be and hereby are, declared as the person properties of the
family of the petitioners subject to a charge as slow below;
4. That petitioners 1 to 4 their heirs,
successors administrators and assignees do pay to the said temple for its
maintenance 12-1/2 putties of good Mologolukulu paddy 6001every year by the
31st of March;
5. That the said 121 putties of good
Mologolukulu paddy and Rs. 600/due every year be a charge on the lands
mentioned in Schedule A given hereunder;
6. That the petitioners 1 to 4 and their
heirs and assignees be liable to pay 12-1/2 putties of Molo273 golukulu paddy
and Rs. 600 every year whether the lands yield any income or not.
10. That the H. R. & C. E. Commissioner
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
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 Rs. 600/cash every year. The Present
suit was instituted on October 3 1. 1955 for a declaration that the provision
in the compromise..decree that the lands mentioned in the schedule were the
personal properties of defendants 1 to 5 and not the absolute properties of the
temple, was not valid and binding on the temple. Defendants 1 to 5 objected, to
the suit on the ground that it was not open to the plaintiff to seek a
declaration that a Part of the decree was not binding but the plaintiff should
have directed his attack against the ,entirety of the decree.
The trial court dismissed the suit on the
ground that the suit was defective and that s. 93 of. the Hindu Religious and,
Charitable Endowments Act of 1951 was a bar to the institution of the suit.
Against the decree of the trial court the plaintiff preferred an appeal--A S,
312 of 1957 to the High Court of Andhra Pradesh. The. plaintiff also filed
C.M.P. no; 6422 of 1962 praying for amendment of the plaint the effect that the
compromise decree in O. P. no. 3 of 1950 was not valid and binding on the
temple. After hearing defendants 1 to.5 the High Court allowed the amendment
sought for: by the plaintiff and-held that the amendment cured the defect with
regard to the prayer for a declaration to have the compromise decree set aside
partially. The High Court further held that s. 93 of the Hindu. Religious and
Charitable Endowments Act was not a bar to the suit and' s.. 42 of the Specific
Relief Act'-was not-exhaustive and the suit was therefore maintainable. In the
result, the High Court "owed the appeal and remanded the suit to the trial
court for disposing the same on the remaining issues.
274 It was contended, in the first place, on
behalf of the appellants that declaratory suits are governed exclusively by S.
42 of the Specific Relief Act and if the requirements of that section are not
fulfilled no relief can be granted in a suit for a mere declaration. It was
submitted that the plaintiff must satisfy the court, in such a suit, that he is
entitled either to any legal character or to any right in any property. It was
argued for the appellants that the plaintiff has brought the suit as a mere
worshiper of the temple and that he has no legal or equitable right to the
properties of the temple which constitute the subject-matter of the suit. It
was pointed out that the plaintiff has not asked for a declaration of his legal
character as a worshiper of the temple but he has asked 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 someone who is not
in-existence, and for whom, if in existence, he would be a trustee." The
legal development of the declaratory action is important. Formerly it was the
practice in the Court of Chancery not to make declaratory orders unaccompanied
by any other relief. But in exceptional cases the Court of Chancery allowed the
subject to sue the Crown through the Attorney-General and gave declaratory
judgments in favour of the subject even in cases where it could not give full
effect to its declaration. In 1852 the Court of Chancery Procedure Act was
enacted and it was provided by S. 50 of that Act that no suit should be open to
objection on the ground that a merely declaratory decree or order was sought
thereby, and it would be lawful for the court to make binding declarations of
right without granting consequential relief. By s. 19 of Act VI of 1854, s. 50
of the Chancery Procedure Act was transplanted to India and made applicable to
the Supreme Courts. With regard to courts other than the courts established by
Charters the procedure was codified in India for the first time by the Civil
Procedure Code, 275 1859, where the form of remedy under s. 19 of Act VI of
1854 was incorporated as s. 15 of that Act which stood as follows:
"No suit shall be open to objection on
the ground that a merely declaratory decree or order is sought thereby, and it
shall be lawful for the civil Courts to make binding declarations of right
without granting consequential relief." In 1862 the provisions of the
Civil Procedure Code of 1859 were extended to the courts established by
Charters when the Supreme Courts were abolished and the present High Courts
were established. In 1877 the Civil Procedure Code, 1859 was repealed and the
Civil Procedure Code of 1877 was enacted. The provision regarding declaratory
relief was transferred to s. 42 of the Specific Relief Act which was passed in
the same year. This section which is said to be a reproduction of the Scottish
action of declaratory, has altered and to some extent widened the provisions of
s. 15 of the old Code of 1859.
It was argued on behalf of the appellants
that, in the present case, the plaintiff was suing as a worshiper of the temple
and that he was not suing as a person entitled to any legal character, or to
any right as to any property and so the suit was barred by the provisions of s.
42 of the Specific Relief Act.
Upon this argument we think that there is
both principle and authority for holding that the present suit is not governed
by s. 42 of the Specific Relief Act. In Fischer v. Secretary of State for India
in Council, (1) 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,(1) the appellants sued for a
declaration that a compromise of certain preemption suits and decrees passed
there under made on their behalf when they were (1) 26 I.A. 16. (2) 40 I.A.
276 minors were not binding on them, having
been obtained by fraud and in proceedings in which they were practically
unrepresented. The Subordinate Judge having decreed the suit on appeal the members
of the Court of the Judicial Commissioner differed upon the question whether
the declaration sought should be refused as a matter of discretion under S. 42
of the Specific Relief Act. Before the Judicial Committee it was contended for
the, respondent that the suit having been filed for the purpose of obtaining a
declaratory decree only was bad in form inasmuch as it did not pray that the
decree should be set aside; but that, assuming that it was rightly framed in
asking only for a declaratory decree, the Court had a discretion as to the
granting or refusing such a declaration. The Judicial Committee observed that
S. 42 of the Specific Relief Act did not apply to the case and that it was not
a question of exercising a discretion under that section; and they gave to the
appellant a decree setting aside the decree complained of and declaring that
the agreement of compromise and the decree complained of were not binding upon
the appellants or either of them and that they were entitled to such rights as
they had before the suit was dismissed on December 15, 1899.
It appears to us that a decree of the
character which has been sought by the plaintiff in this case is not one as to
which the additional powers conferred by the Act of 1852 were required I by the
Court of Chancery. The injury complained of was that the Court has, by
recording the compromise in O.P. no. 3 of 1950, deprived the deity of its
present title to certain trust properties. The relieve which the plaintiff
seeks is for a declaration that the compromise decree was null and void and if
such a declaration is granted the deity will be restored to its present rights
in the trust properties. A declaration of this character, namely, that the
compromise decree is not binding upon the deity is in itself a substantial
relief and has immediate coercive effect. A declaration of this kind was the
subject matter of appeal in Fischer v. Secretary of State for India in commercial
(1) and falls outside the purview of s. 42 of the Specific Relief Act and will
be governed by the general provisions of the Civil Procedure Code like S. 9 or
0. 7, r. 7.
On behalf of the respondents reliance was
placed on the decision of the Judicial Committee in Sheoparsan Singh v. Ramnandan
Prasad Singh(1). 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 26
I.A. 16. (2) I.L.R. 43 Cal. 694 (P.C.) 277 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(1). In our opinion, the
decision of the Judicial Committee in Sheoparsan Singh v. Ramnandan Prasad
Singh(1) should be explained on the ground that they will which was sought to
be avoided had been affirmed by a Court exercising appropriate jurisdiction and
as the propriety of that decision could not be impeached in subsequent
proceedings, the plaintiffs could not sue, not being reversions.
The legal position is also well-established
that the worshipper of a Hindu temple is entitled, in certain circumstances, to
bring a suit for declaration that the alienation of the temple properties by
the de jure Shebait is invalid and not binding upon the temple. if a Shebait
has improperly alienated trust property a suit can be brought by any person
interested for a declaration that such alienation is not binding upon the deity
but no decree for recovery of possession can be made in such a suit unless the
plaintiff in the suit has the present right to the possession.
Worshippers of temples are in the position of
cestuui que trustent or beneficiaries in a spiritual sense (See Vidhyapurna
Thirthaswami v. Vidhyanidhi Thirthanswami (3).
Since the worshippers do. not exercise the
deity's power of suing to protect its own interests, they are not entitled to
recover possession of the property improperly alienated by the Shebait, but
they can be granted a declaratory decree that the alienation is not binding on
the deity (See for example, Kalyana Venkataramana Ayyangar v. Kasturiranga
Ayyangar(4) and Chidambaranatha Thambiran v. Nallasiva Mudaliar)(5). It has
also been decided by the Judicial Committee in Abdur Rahim v. Mahomed Barkat Ali(3)
that a suit for a declaration that property belongs to a wakf can be maintained
by Mahomedans interested in the wakf without the sanction of the
Advocate-General, and a declaration can be given in such a suit that the
plaintiff is not bound by the compromise decree relating to wakf properties.
In our opinion, s. 42 of the Specific Relief
Act is not exhaustive of the cases in which a declaratory decree may be made
and the courts have power to grant such a decree independently of the
requirements of the section. It follows, therefore, in the present case that
the suit of the plaintiff for a declaration that the compromise decree is not
binding on the deity is maintainable as falling outside the purview of s. 42 of
the Specific Relief Act.
(1) 20 I.A. 16. (2) I.L.R.43 Cal. 694 (P.C)
(3) I.L.R.27Mad.435,451. (4) I.L.R. 40 Mad. 212.
(5) I.L.R. 41 Mad. 124. (6) 55 I.A. 96.
278 The next question presented for
determination in this case is whether the compromise decree is invalid for there
as on 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 in an ideal
sense that property is so held. The possession, and management of the property
with the right to sue in respect thereof are, in the normal course, vested in
the Shebait, but where, however, the Shebait is negligent or where the Shebait
himself is the guilty party against whom the deity needs relief it is open to
the worshippers or other persons interested in the religious endowment to file
suits for the protection of the trust properties. It is open. in such a case,
to the deity to file a suit through some person as next, friend for recovery of
possession of the property improperly alienated or for other relief. Such a
next friend may be a person who is a worshipper of the deity or as a
prospective Shebait is legally interested in the endowment. In a case where the
Shebait has denied: the right of the deity to the dedicated properties, it is
obviously desirable that the deity should file the suit through a disinterested
next friend, nominated by the court. The principle is clearly stated in Pramath
Nath v. Pradymna Kumar.(1) That was a suit between contending shebaits about
the location of the deity, and the Judicial Committee held that the will of the
idol on that question must be respected, and inasmuch as the idol was not
represented otherwise than by shebaits, it ought to appear through a
disinterested next friend appointed by the Court.
In-, the present case no such action was
taken by the District Court in O. P. no. 3 of 1950 and as there was no
representation of the deity in that judicial proceeding it is manifest that the
compromise decree cannot be binding upon the deity. It was also contended by
Mr. P. Rama Reddy on behalf of respondent no.: I that the compromise decree was
beyond the, scope of the proceedings in O.P. no. 3 of 1950 and was, therefore,
in. valid. In our opinion, this argument is well-founded and must prevail. The
proceeding was brought under s. 84(2) of the old Act (Act II of 1927) for
setting aside the order of the Board dated October 5, 1949 declaring the temple
of Sri Kodandaramaswami as a temple (1) I.L.R. 52 Cal. 809, (P. C.) 279 defined
in s. 6. cl. 17 of the Act and for a declaration that the temple was a private
temple. After the passing of the new Act, namely Madras Act 19 of 1951, there
was an amendment of the original petition and the amended petition included a
prayer for a further declaration that the properties in dispute are the
personal properties of the petitioner's family and not the properties of the
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
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
For the reasons expressed, we hold that the
decree passed by the trial court should be set aside and the plaintiff respondent
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.