Interference by Area Committee with management.

The plaintiffs in O.S. No. 373 of 1969 on the file of the District Munsif, Nagercoil, are the appellants herein. They filed a suit for a declaration that plaintiff. 2 to 8 are the legally constituted trustees of one Nagercoil East Street, Asarimar Samudayam Mutharamman and Natesaswamy Trust and that in such capacity they are entitled to manage the affairs of certain temples and for an injunction restraining the defendants 1 to 5, the trustees appointed by the area committee, Hindu Religious and Charitable Endowment Department, Suchindram, the sixth defendant from interfering with such management of the temples. Their case was that the temples in question belonged to the Asarimar community and that the trustees for the management of the temples are elected only by the mebers of the community and that the area committee constituted under the Hindu Religious and Charitable Endowments Act, 1959 had no right to interfere with the management of the temples by appointing trustees of its choice. In effect they sought a declaration that the order of the area committee appointing the defendants 1 to 5 as trustees of the temples in question was without jurisdiction.

2. The suit was resisted by the sixth defendant, the area committee, and defendants 1 to 5, the trustees appointed by the 6th defendant. Their contention was that the temples are public religious institutions that, therefore, the area committee has got powers for appointment of trustees under section 49 of the" Act, and that the order appointing the trustees by the area committee will not fall within the expression matters of religion mentioned in Article 26 of the Constitution. The 6th defendant further contended that the suit is not maintainable (1) for lack of notice under section 80 of the Code of Civil Procedure, and (2) in view of the bar contained in section 108 of the said Act.

3. The trial Court found that the three temples in question are denominational in character, the worship therein being confined as of right to the Asarimar community alone and that, therefore, the Hindu Religious and Charitable Endowments Department will have no power to take away the right of management of the temples and its properties by plaintiffs 2 to 8 the trustees appointed by the community. It, therefore, held that the order passed by the 6th defendant Was void under Article 26 of the Constitution. On the question of maintainability of the suit without exhausting the remedies provided under the provisions of Madras Act (XXII of 1959) hereinafter called the Act, the trial Court, following the decision in Rao Sahib Dr. Ananda Baliga v. Srimad Ananteswar Temple Nanjeswear by its Execuive Officer, Sri K.P. Kaurathan and others1 held that the suit is maintainable. On the question of lack of notice under section 80 of the Code of Civil Procedure, it found that the suit was not against the State Government but it is only against the area committee and hence it is maintainable. Ultimately the trial Court decreed the suit as prayed for.

4. On appeal, the lower appellate Court has agreed with the view of the trial Court that the temples are denominational in character and that the order taking away the right of management of the denomination passed by the sixth defendant has to be held to be void in view of Article 26 of the Constitution. It, however, held that the plaintiffs’ remedy is to go before the Deputy Commissioner, Hindu Religious and Charitable Endowments, for the necessary reliefs and not to file a suit before the civil Court, and that the suit in barred under section 108 of the Act in view of the decision of the Supreme Court in State of Madras v. Kunnakudi Melamatam alias Annathana Matam and another1, and of this Court in Santhanagopala Chettiar v. Seetharama Chettiar2. In that view the lower appellate Court allowed the appeal and dismissed the suit.

5. In this Second Appeal the only question that arises is as to whether the suit is barred under section 108 of the Act. In State