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CASE NO.: Appeal (civil)  4467 of 2005

PETITIONER: R. Murali & Ors.                                                         

RESPONDENT: Kanyaka P.  Devasthanam & Charities & Ors.               

DATE OF JUDGMENT: 25/07/2005

BENCH: D. M. Dharmadhikari & Arun Kumar

JUDGMENT: J U D G M E N T (Arising out of  SLP (C) No. 6846 of 2004)

Dharmadhikari J.

       Leave to file appeal is granted.          Counsel for the parties are heard on the merits of the appeal.          The appellants are aggrieved by the impugned order of the  Division Bench of the High Court of Madras whereby leave granted  under Section 92 of the Code of Civil Procedure to file suit for  reframing scheme of administration of Sri Kanyaka Parameshwari  Devasthanam and Charities by the learned single judge has been  revoked.          The aforesaid religious endowment and charitable trust  admittedly is carrying on various activities which include running of  high schools for girls and boys, maintaining three choultries, hostel for  college students, Annachatram for feeding poor students and pilgrims,  cremation ground, gardens and maintaining market in the vicinity of  the temple.  

Respondent Nos. 2 to 7 as members of the Board of Trustees of  the religious and charitable institution named above, had instituted a  suit  No. OS 7453 of 1972  in the City Civil Court at Madras seeking a  decree of declaration and injunction against the Commissioner and  Deputy Commissioner restraing them from exercising powers under  the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959  [hereinafter referred to as ’Tamil Nadu Act’].  In the suit, it was  pleaded that Kanyaka Parameswari temple is a denominational temple  with guaranteed fundamental freedom under Article 26 of the  Constitution of India from interference of the Commissioner and  Deputy Commissioner under the Tamil Nadu Act in the administration  of the institution. The city civil court by judgment dated 13.12.1976  granted a decree of declaration in favour of the trust and its trustees  that the temple is a religious denomination of Arya Vysya community.   A decree of permanent injunction was also granted restraining  Commissioner and Deputy Commissioner under the Tamil Nadu Act  from interfering, in any manner, with the management and  administration of the properties of the institution or taking any  proceedings or modifying the schemes framed for governing the  institution.  

       It is in the above background of the grant of decree of  declaration and injunction in the civil suit OS No.7453 of 1972 of the  city civil court restraining interference of Commissioner and the  Deputy Commissioner under the Tamil Nadu Act in the affairs of the  religious and charitable institution that the present appellants had  sought leave under section 92 of the Code of Civil Procedure [for short  ’CPC’] from the learned single judge of the High Court for instituting a  suit for seeking relief of modifying/re-framing a scheme for

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administration of the institution. In the petition seeking leave to file  suit, various acts of mismanagement by the present members of the  Board of Trustees were alleged.  

       The application for leave sought under section 92 of the Code to  institute suit was opposed by respondent Nos. 2 to 7  as members of  the Board of Trustees, on the ground that institution is governed by  the Tamil Nadu Act  and under section 5(e) thereof, the provisions of  sections  92 & 93 of the CPC are inapplicable to the institution. It was  submitted that the jurisdiction to settle or modify a scheme of  administration of the religious and charitable institution vests in the  Joint Commissioner or Deputy Commissioner, as the case may be,  under section 64 of the Tamil Nadu Act.                                                                           The learned single judge by order passed on 2.9.2003 granted  leave under section 92 of the CPC to the present appellants and  rejected the objection raised by the respondent trustees.  It is held  that the respondents in earlier suit (supra) having sought and obtained  a decree of declaration and injunction on their claim of protection  under Article 26 of the Constitution of India, the appellants cannot be  compelled to approach the authorities under the Act for obtaining   relief which is sought in the suit.  The learned single judge has also  held that the institution having been declared to be of  a religious  denomination in accordance with section 107 of the Tamil Nadu Act,  the autonomy guaranteed to it under Article 26 of the Constitution of  India is recognized and protected.   

       In the appeal preferred by the respondents 2 to 7 as members of  the Board of Trustees, the Division Bench by the impugned order  reversed the judgment of the learned single judge and revoked the  leave to file suit granted under section 92 of the CPC. In construing  the judgment and decree of declaration and injunction granted by the  city civil court in OS No. 7453 of 1972 decided on 13.12.1976, the  Division Bench has held that the decree, to the extent  it restrains the  authorities under the Tamil Nadu Act from modifying the scheme of  administration or management of the Trust, is  contrary to section 64  of the Act. The Division Bench described a part of the decree as  ’incidental’, ’not part of the ratio decidendi, ’obiter dicta’ and ’not  authoritative.’  

       It is necessary at this stage to examine the relevant provisions  of the Tamil Nadu Act and the relevant portion of the judgment and  decree of the city civil court of the year 1976, the judgment of the  learned single judge and of the Division Bench of the High Court.  Section 5(e) makes inapplicable provisions of section 92 & 93 of CPC  to ’Hindu religious institutions and endowments’. Section 5 with  its opening part and clause (e) reads thus:-  "5. Certain Acts not to apply to Hindu Religious Institutions and  Endowments.- The following enactments shall cease to apply to Hindu  religious institutions and endowments, namely :-  

(a)  to (d) ................  (e)     Section 92 & 93 of the Code of Civil Procedure, 1908 (Central Act  V of 1908).  [Emphasis added by Court]

       Section 107 of the Tamil Nadu Act recognizes and protects  religious freedom in matters of managing religious affairs by religious  denominations guaranteed as fundamental right under Article 26 of the  Constitution of India. Section 107 reads thus :-  "107. Act not to affect rights under Article 26 of the  Constitution.- Nothing contained in this Act shall, save as otherwise  provided in section 106 and in clause (2) of Article 25 of the  Constitution, be deemed to confer any power or impose any duty in  contravention of the rights conferred on any religious denomination

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or any section thereof by Article 26 of the Constitution."           The operative part of decree of declaration and injunction  obtained against the authorities  under the Tamil Nadu Act by the  respondents as members of the Board of Trustees in the year 1976  reads thus:- "In the result, it is declared that the plaintiff temple called as Sri  Kanyaka Parameswari temple is a religious denomination of the Arya  Vysya Community and that a permanent injunction is also issued  against the defendants restraining them from interfering with the  management or administration of the properties of the plaintiff,  institution or taking any proceedings or modifying the scheme  governing the institution. But the injunction issued in favour of the  plaintiff shall not prevent the department from exercising such of  the powers which are conferred on them by law in regard to the  administration of institution."  

       Learned single judge in construing the above decree obtained by  respondents themselves in the year 1976 from the city civil court,  came to the conclusion that as a result of the decree of injunction,  authorities under the Tamil Nadu Act could not be approached for  seeking change or modification in the scheme of administration and  management of the institution. It is only the civil court, on grant of  leave under section 92 of the Code, which  could grant relief to the  plaintiffs, if they are found entitled to the same. The conclusion of  learned single judge reads thus :-  "The respondents herein had sought for and obtained the protection  of Article 26 of the Constitution of India in the civil suit already  referred to and therefore, the applicants cannot go before the  authorities for obtaining the relief that is sought for in this suit. The  correctness of the allegations made against the respondents of  mismanagement, dissipation of property and unbridled exercise of  power will also be dealt with at the time of trial.  

The requirements of section 92 of the Code of Civil Procedure have  been satisfied so the maintainability of the application must be  answered in favour of the applicant."  

       The Division Bench by the impugned order reversed the  judgment of the learned single judge. It came to the conclusion that  certain observation in that decree granted by city civil court in the year  1976 is ’incidental’. It is ’not part of the ratio-decidendi’. It is ’obiter  dicta’ and ’not authoritative.’ The said part of the decree is held to be  contrary to section 64 of the Tamil Nadu Act which confers power on  the prescribed authorities under the said Act of framing or modifying a  scheme of administration or management of the religious institutions.  The concluding portion of the judgment of the Division Bench, which is  assailed  before us by the learned counsel,  reads as under :-  "In this case, one another strange circumstance pointed out by the  learned senior counsel for the respondents is that the decree passed  by the Civil Court in O.S. No. 7453 of 1972 has restrained the  authorities  from interfering with the management or administration  of the properties of the institution or from taking any proceedings or  modifying the scheme governing the institution. It is further argued  by the learned senior counsel that clause (3) of the decree, though  saves the rights of the authorities from exercising such powers  vested on them by law in regard to the administration of the  institution, the second clause of the decree restrained them from  doing so.  

The suit O.S. No. 7453 of 1972 was filed for a declaration to declare  that the first appellant is a denominational temple belonging to  religious denomination of the Arya Vysya Community of Madras and  for permanent injunction. While passing the decree, the city civil

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court, though saved the powers of the authorities of HR & CE  conferred under the Act has stated that the scheme could not be  modified by the authorities. Indeed, the said observation is made  contrary to section 64 of the Act and it is an ’incidental’ which  are not part of ratio decidendi, which is classified as obiter dicta  and not authoritative. The learned single judge granted leave on the  face of the expression of the decree indicated above in O.S. No.  7453 of 1972 that the authorities are restrained from modifying the  scheme settled.  

The decree passed in O.S. No. 7453 of 1972 to that extent   indicated above is an obiter dicta and not part of ratio decidendi  hence not binding since section 64 confers powers on the  authorities. Section 92 & 93 of CPC cease to apply to the first  appellant endowment by virtue of section 5 of the Act. The  appellants have filed a suit C.S. No. 383 of 1998 against the  defendants therein only for bare injunction and not for any other  relief under section 92 or 93 of CPC.  

In view of the same, the order passed by the learned single judge is  set aside. The appeal is allowed. No costs. Consequently, connected  CMP is closed. It is made clear that the respondents are at liberty to  move the authorities under the Act for the grievances, if any, if they  are so advised."                                                  [ Emphasis added by this Court]                  After hearing learned senior counsel Shri K. Parasaran on behalf  of the Appellants and Shri A. K. Ganguly for the respondents, we have  formed an opinion that the Division Bench has grossly erred in  reversing the judgment of the learned single judge of the High Court  and revoking the leave to file the suit granted in favour of the  appellants under section 92 of CPC.  

       We have extracted above the relevant portions of the decree  granted by the city civil court in the year 1976. The respondents  themselves obtained a decree of declaration that the institution  belongs to a religious denomination and the authorities under Tamil  Nadu Act, have no powers of framing or modifying any scheme of  administration of the institution under the Tamil Nadu Act. We fail to  understand how an executable part of decree granted by the city civil  court which clearly restrains the authorities under the Tamil Nadu Act  from modifying or framing the scheme of administration of the  institution and declares the institution to be of a religious  denomination, can be described as merely ’incidental observation’,  ’obiter dicta’, ’not part of ratio decidendi’ and ’not authoritative.’  

The operative part of the judgment containing the decree,   rightly or erroneously granted, having not been appealed against, has  attained finality and  cannot be described as an ’incidental  observation’, ’not a part of ratio decidendi’, ’obiter dicta’ and ’not  authoritative’ as has been done by the Division Bench in its impugned  judgment.  The conclusion of the city civil court on which decree is  based is the main and operative part of the decision.  The Division  Bench has committed a gross error of law in ignoring a vital part of the  judgment and decree dated 13.12.1976 of the City Civil Court, Madras  which was obtained by the respondents themselves as the members of  the Board of Trustee in their own suit instituted and numbered as  O.S.No.7453 of 1972.  Such a judgment and decree is valid and  binding on the respondents. By their own conduct of obtaining a  decree of declaration and injunction against the authorities, under the  Tamil Nadu Act, they are estopped from raising a contrary plea in the  subsequent suit instituted against them and oppose grant of leave of   the Court sought by the present appellants under Section 92 of the  Code of Civil Procedure.  The respondents cannot be allowed to  approbate and reprobate in the two suits in which the subject matter

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and issue of jurisdiction of civil court involved are the same.

The Division Bench of the High Court also went wrong in holding  that the decree granted by the city civil court in the year 1976 in  favour of respondents is contrary to section 64 of the Tamil Nadu Act.  We have examined the relevant provisions of the Tamil Nadu Act.  The  institution under consideration is carrying on multifarious activities of  religious and charitable nature.  It is not purely a ’Hindu Religious  Institution or Endowment’. It is also a ’charitable endowment’ as  defined in clause (5) and ’religious charity’ under definition clause (16)  of section 6 of the Tamil Nadu Act.  

       As a result of decree of declaration that the institution is of   religious denomination of Arya Vysya community, it had protection  under Article 26 of the Constitution of India from interference in its  administration by the authorities under the Tamil Nadu Act.  This right  guaranteed under Article 26 of the Constitution has been expressly  protected under section 107 of the Tamil Nadu Act by making  inapplicable the other provisions of the Act including section 64 to  institutions of religious and charitable nature of religious  denominations.  

       Our conclusion is that on grounds both of existence of a decree  of declaration and injunction granted by the city civil court in the year  1976 in the suit instituted by the respondents themselves and the  mixed character of the institution of the ’religious denomination’ as  religious and charitable with protection of Article 26 and section 107 of  the Tamil Nadu Act, it is not open to the present appellants to  approach the authorities under section 64 of the Tamil Nadu Act for  modification or reframing the scheme of the administration of the  trust. As decree of declaration and injunction is operative against the  authorities under Tamil Nadu Act, civil court alone could have been  approached by obtaining leave under section 92 of CPC for seeking  modification or reframing of scheme of administration of the trust.  

       For the aforesaid reasons, the impugned order of the Division  Bench of the High Court deserves to be set aside and that of the  learned single judge restored. In the result, this appeal succeeds and  is allowed. The impugned order of the Division Bench dated  23.12.2003 is set aside. The order of the learned single judge dated  02.9.2003 is restored. The respondents 2 to 7  shall individually and  collectively, without using funds of the institution, pay full costs  incurred in this appeal to the appellants.