Competency of order on set petition.

Satyanarayana Rao, J.-This is an appeal under section 84(3) of the Madras Hindu Religious Endowments Act (II of 1927), as amended by Madras Act X of 1946, against the order of the learned District Judge dismissing the appellants’ petition under section 84)2)of the Act.

The facts relating to this matter have been fully set out in the judgment of my learned brother which he is about to deliver and which I had the advantage of perusing, and therefore, need not be set out in great detail. One Venkataswami Servai executed on 18th March, 1920, a deed of gift (Exhibit R-2) declaring that he had already endowed nineteen acres, ninety-eight cents of nanja land to Alagarswami temple devasthanam and that the temple was already under construction.

He also expressed in that document his intention to have the deity Alagarswami installed in the building which was then under construction and to have kumbabhi-skekam performed after completion of the building. Under this deed he appointed two trustees, besides himself, Kamakshi Servai and Algar Servai, and laid down the duties to be discharged by the trustees. He, being the founder of the charity, laid down the rules for the devolution of the trusteeship and provided that, if no male issue were born to him, the trusteeship should devolve on the two trustees appointed by him under the deed and their heirs in perpetuity. The founder Venkataswami Servai died in 1925 leaving no male issue. Kamakshi Servai died some time in 1931 and was succeeded to the trusteeship by Ramaswami Servai (the first appellant). Alagarsami also died later and was succeeded by the second appellant, Subbiah Servai.

In the year 1937, the Hindu Religious Endowments Board demanded contribution from the trustees on the assumption that the temple of Sri Alagarswami was completed and came into existence. The claim was for eight faslis, 1339 to 1346, amounting to Rs. 600. When this demand was made, Ramaswami Servai filed a petition before the Board alleging that the order of the Board demanding contribution proceeded under a mistake that the family temple came into existence and that as the temple was not completed and the idol was not installed and consecrated, the endowment was entirely outside the scope of the Hindu Religious Endowments Act. In the petition, it was claimed that there should be a declaration by the Board that the trust created by Venkataswami was outside the scope of the Act and that the Board should refund the sum of Rs. 600 collected from the trustees as contribution. This application was considered by the Board under section 84 of the Act and the Board passed an order on the 27th September, 1938, in these terms:-

“Sri Alagar temple, Thevaram, Periyakulam taluk, Mathurai district, is a temple as defined in the Madras Hindu Religious Endowments Act, 1926, and is also an excepted temple.”

The annexure to this order containing the reasons for the above decision was not filed by the Board in these proceedings and it is not known whether the Board after enquiry came to the conclusion on the evidence placed before it that the conditions of the definition of a “temple”, as contained in the Act, were satisfied or not. From a later order of the Board it is gathered, however, that at the time of the passing of the above order, both sides agreed to have the temple declared to be an excepted temple and that the deed of foundation supported that view. It is not clear from the evidence now adduced who the other side to the petition, Exhibit R-1, was. In the cause title of the petition itself there is no name of any respondent and it appears from the preamble to the order that Sri N. Sivaraj, Advocate for the appellant alone, appeared at the time of the final hearing of the petition. As there is no legal evidence such as the annexure containing the grounds of the decision, it is difficult to know what exactly were the reasons that influenced the decision of the Board and who the other party to the proceedings was. The s