Alienation by trustee of Temple properties endowed for kattalai.

The legal representatives of the deceased first defendant in O.S. No. 456 of 1960 on the file of the Court of the District Munsif of Kancheepuram are now the appellants before this Court. The suit properties were endowed for the purpose of performing the Uchikala Kattalai and general pooja in the Sri Katchapeswaraswamy temple. One Pandaram family was the kattalai trustees in respect of the suit properties, and Ekambaram Pandaram who was the kattalai trustee at the relevant time, mortgaged the suit properties in favour of the father of the first defendant in the suit, on 9th September, 1919 under Exhibit B.-I. The trustees of the temple filed O.S. No. 224 of 1937 on the file of the Court of the District Munsif of Kancheepuram for a declaration that the alienations effected in respect of the temple properties and Kattalai properties were not binding on the temple, and for recovery of possession of the same. One such alienation covered in that suit was Exhibit B-1, dated 9th September, 1919. The Court in O.S. No. 224 of 1937 came to the conclusion that the properties were kattalai properties, that the alienations were not valid and binding; but the temple as such was not entitled to recover possession of the property, and it was only the kattalai trustees who were entitled to be in possession of the properties. So far as Exhibit B-1 was concerned, the Court expressly pointed out that, being a mortgage unaccompanied by possession, no finding was necessary with regard to delivery of possession. Thereafter, O.S. No. 5 of 1943 on he file of the Court of the District Judge, Chingleput, was filed under section 73 of the Madras Hindu Religious Endowments Act ("Madras Act II of 1927), and in that a scheme was framed, and a trustee called Sri Katchapeswara Uchikala and General pooja kattalai trustee was appointed and he was authorised to have possession of all the kattalai properties. The decree in that suit is marked as Exhibit A-1 in this case. The third defendant in the suit (O.S. No. 456 of 1960) was appointed as the kattalai trustee under the scheme on 26th June, 1947 by virtue of the final decree proceedings in the said suit which was marked as Exhibit A-3 in the present suit. Subsequent to these proceedings, the first defendant who is the son of the mortgagee under Exhibit B-1, filed O.S. No. 40 of 1942 on the file of the Court of the Subordinate Judge, Chingleput on the basis of Exhibit B-1 and brought the property to sale and purchased it himself. After the first defendant purchased the property and took delivery of the same, the third defendant herein filed an application under Order 21, rule 100 of the Code of Civil Procedure, for redelivery of the property contending that neither the mortgage nor the sale was binding on the Kattalai. However, that application was filed three days after the period of limitation expired for the same, and therefore he filed an application to excuse the delay. However, the Court declined to excuse the delay, and the application for redelivery of possession was also dismissed. It is after all these events, the present suit was instituted by the Executive Officer of the temple for recovery of possession of the suit properties putting forward the contention that the mortgage and the sale were not binding on the temple and the kattalai, and the temple is entitled to recover possession of the properties. The learned District Munsif by his judgment and decree, dated 30th October, 1962, decreed the suit, and the same was confirmed by the learned District Judge of Chingleput, on appeal on 14th December, 1964, in A.S. No. 108 of 1963. Hence the present Second Appeal.

The principal question that is argued before me is that in the light of the judgment in O.S. No. 224 of 1937 as well as in the light of the appointment of a special trustee in O.S. No. 5 of 1943, the temple trustee has no right to sue for recovery of possession of the property and the only person entitled to recover the same was the