The order under Section 44 of the Madras Hindu Religious Endowments Act does not operate as res judicata, and the remedy provided by Section 44 is not the only remedy open.

Alfred Henry Lionel Leach, C.J.

1. The appellants are the trustees of the Viswanathaswami Koil at Puliyangudi in the Chidambaram taluk. The mentality which their case discloses is surprising in persons holding their position.

2. By a will dated the 12th April, 1901, one Muruga Padayachi directed that the income of certain immovable properties should be dedicated to the temple. The testator died shortly after the execution of the will Twelve months before the will was made he adopted as his son the respondent. The properties which Muruga Padayachi purported to settle belonged to the joint family and therefore his testamentary directions in this respect were entirely invalid. The respondent was a minor when his father died, but after he came of age, he fulfilled for a time his fathers directions, by paying over to the trustees the income of the properties set aside for this, temple. Later, he decided that he would not recognise the settlement as a valid one and consequently refused to pay over the income of the propertied to the trustees. In 1927 the first appellant, as the trustee of the temple filed a suit to recover from the respondent the income of the properties for three years. The respondent pleaded that a suit did not lie and that the trustees remedy, if he had any, was under Section 44 of the Madras Hindu Religious Endowments Act of 1926. Thereupon the first appellant filed an application under Section 44 and obtained an order for payment from the District Judge. In those proceedings the respondent contended that the will was invalid and consequently the District Judge had no power to direct him to pay over the income. The District Judge wrongly decided that the will was valid and made the order asked for. The respondent then filed in the Court of the District Munsiff of Chidambaram the suit which has given rise to this appeal. He asked for a declaration that the income from the properties was not payable to the trustees for temple purposes and sought a permanent injunction restraining them from proceeding against him under Section 44. The appellants maintained that the will was valid and averred that the order of the District Judge under Section 44 operated as res judicata. The District Munsiff held that the will was invalid and that the order under Section 44 did not operate as res judicata. On appeal his findings were concurred in by the Subordinate Judge of Cuddalore. The appeal now before us is from the decree of the Subordinate Judge granting the respondent the reliefs asked for by him.

3. As we have indicated, the will is invalid and the only real question is whether the order of the District Judge under Section 44 of the Madras Hindu Religious Endowments Act operated as res judicata. We agree with the Courts below that it does not. The judgment of the Privy Council in Ramachandra Rao v. Ramachandra Rao (1922) 43 M.L.J. 78 : L.R. 49 IndAp 129 : I.L.R. 45 Mad. 320 has no application here. The case is governed by the judgment of their Lordships in Bhagwan Din v. Gir Harsarop and Same v. Kundan Gir (1940) 1 M.L.J. 1 : L.R. 67 IndAp 1 : I.L.R. 15 Luck. 1 There the Judicial Committee said :

The decision of the District Judge under the Act of 1920--a decision from which by Section 12 there is no appeal--is a decision in a summary proceeding which is not a suit nor of the same character as a suit; that it has not been made final by any provision in the Act; and that the doctrine of res iudicata does not apply so as to bar a regular suit even in the case of a person who was a party to the proceedings under the Act.

The position under the Madras Hindu Religious Endowments Act is exactly the same. There is no appeal from an order under Section 44, but the Act does not say that the order is final this Court held in Sri Kothanduramaswami Temple at Adambar, represented by its trustee, S. Vaidyanatha Iyer v. Veezhinatha Iyer (1945)1MLJ63 , that Section 44 does not preclude the trustees from filing a suit in the ordinary Ci