Disposal of pending matter during vacation by the subordinate judge.

This Civil Miscellaneous Appeal has been filed by the contesting defendants 1 and 2 in O.S. No. 15 of 1967 on the file of the Subordinate Judge of Kumbakonam, against the order of the learned Judge appointing a Receiver of the properties of which the defendants claim to be in possession.

The dispute between the parties is over the right of succession to the office of Makkandhar or the Manager of the Thaikkal concerned in the suit. The Thaikkal was founded over a century back by a Hindu who came under the benign influence of a Muslim saint. He endowed some properties for the Thaikkal. The Makkandhar, by birth a Hindu had to embrace Islam before becoming Makkandhar. The last Makkandhar was one such person named Balasubramania Rahim Bakish Pakkir Sahib. He died on 23rd February, 1967. The first defendant claimed to be the lawful successor on the ground of a nomination by the last Makkandhar in a registered will dated 13th December, 1964 (Exhibit B-l). The first defendant is the sister’s son of the last Makkandhar and also his son-in-law. The will recites that the first defendant was also adopted as son by the last Makkandhar. The first defendant further alleges that he embraced Islam and took possession of the Thaikkal and properties immediately.

The contention of the plaintiff Sadasiva Idangapirandhar is that the succession, to the office is by election by the members of the Hindu family, that normally the seniormost male member is so elected and that in fact he was so elected in this case on 23rd February, 1967 itself by resolution Exhibit A-l. He alleges that the first defendant was able to forestall the plaintiff by getting into, possession because of the help of some police officer who was related to the first defendant: The suit was filed on 1st March, 1967 itself and the plaintiff filed the application for the appointment of a Receiver.

The matter was keenly contested before the learned Subordinate Judge Sri G.S. Krishnamurthi. But the learned Judge felt it was undesirable to pronounce any opinion even tenatatively on the conflicting titles to the properties. He thought that there was a scramble for possession and that that would suffice for the appointment of a Receiver.

The first point taken by Sri R. Gopalaswami Ayyangar, learned Counsel for the appellants, is that the order was pronounced on 19th April, 1967 during the summer recess of the Subordinate Judge’s Court and it is void under the provisions of section 30 of the Madras Civil Courts Act (III of 1873) as amended by Madras Act XVII of 1959. The amendment provides for the appointment of a Subordinate Judge to be designated as the Vcation Civil Judge for each District Court during the summer recess and he will have jurisdiction co-extensive with the jurisdiction of all the Courts in the district during the vacation. Section 30 (3) (b) which is relevant, runs thus:

“The jurisdiction of the Vacation Civil Judge shall extend to all suits, ‘appeals and other proceedings pending in, or cognizable by, any civil Court (whether a District Court, a Subordinate Judge’s Court or a District Munsif’s Court) in the district concerned when such Court is adjourned for summer vacation.”

The contention of Sri Gcpalaswami Ayyangar is that during the vacation, it is only the Vacation Civil Judge who will have jurisdiction and that Sri G.S.Krishnamurthi not being a Vacation Civil Judge had no jurisdiction to pass the order in question. It is stated that the application for the appointment of Receiver was heard on 15th April, 1967, the last working day that the learned Judge said that he was going to adjourn the application beyond the vacation unless the parties came to some agreement in the meantime and that they could report on 19th April, 1967, on which day he would be attending Court for pronouncing some other judgments, as to whether they had arrived at any agreement. On 19th April, 1967, however, when the parties reported that they failed to reach at any agreement, the learned Ju