The main legal point established in the judgment is the interpretation and application of Section 73 of the Madras Hindu Religious Endowments Act in determining the maintainability of a suit involving a charitable and religious trust.

Curgenven, J.

1. Two trustees of a certain charitable and religious trust sued their co-trustee for removal and for accounts in the District Court of Madura, The learned District Judge framed two preliminary issues with the first of which only we are here concerned. It runs thus: "Whether the suit is maintainable under Section 92, C.P. Code or under Section 73 of Madras Act II of 1927." This Civil Revision Petition has been preferred by the defendant against an affirmative finding upon this issue.

2. It is objected that a decision upon a preliminary issue relating to jurisdiction is not open to revision under Section 115 of the Code of Civil Procedure. The familiar argument in favour of revision is that if the petitioner is successful the trial of the rest of the suit would be saved, and the special objection to it is that, if the petitioner waits until the suit has been disposed of, he will have a right of appeal. The subject has come up most frequently in connection with court-fees and a question of this kind was dealt with by a Bench of this Court in Kulandaivelu Naichair v. Ramaswami Pandia Thalavan (1927) I.L.R. 51 M. 664 : 55 M.L.J. 345. The argument based on the eventual alternative of an appeal was considered but was not deemed of sufficient weight to preclude revision. Two other reported cases relate to a preliminary issue of jurisdiction, one decided by Krishnan J., in Janardhanan v. Vergheese (1924) 48 M.L.J. 451, and the other the Full Bench case in Atchayya v. Sri Seetharamachandra Rao (1912) I.L.R. 39 M. 195 : 24 M.L.J. 112 (F.B.), where an appellate judgment which decided such an issue came up for revision. I think it must be said that there is now a course of decisions in favour of interference sufficiently marked to render it undesirable that a single Judge should take the opposite view.

3. Turning to the merits, the trust "was created for a number of specified purposes, some secular and some religious, and the question which first arises is whether Sub-section (2) of Section 73 of the Madras Hindu Religious Endowments Act takes the suit out of the scope of Section 92 of the Code of Civil Procedure and, if so, whether power to institute such a suit is derivable from Sub-section (1) of the same section. The learned District Judge holds that Section 73 (2) is a bar to the application of Section 92, but he finds himself able to bring the suit within the scope of Section 73 (1).

4. Assuming the trust to be a "religious endowment" as defined in the Act this view of the effect of Section 73 (2) is clearly right and accordingly, in the words of the sub-section, "no suit in respect of such administration or management shall be instituted except as provided by this Act." Admittedly Section 73 (1) is the only provision of the Act which can authorise such a suit. Under it "The Board or Committee having jurisdiction over any math or temple or any person having interest and having obtained the consent of the Board may institute a suit ...", and the first question is whether the plaintiffs in the present suit satisfy this description. To satisfy it, it must be held that they are "persons having interest". This phrase is defined in clause 9 of Section 9 as follows:

(a) in the case of a math, a disciple of the math or a person of the religious persuasion to which the math belongs, and

(b) in the case of a temple, a person who is entitled to attend at the performance of worship or service in the temple or who is in the habit of attending such performance or of partaking-in the benefit of the distribution of gifts thereat.

5. Accordingly the subject-matter of the interest is confined to a math or a temple. The trust we have to deal with is certainly neither of these things, though it may be a religious endowment as defined in clause 11 of Section 9. Only by extending the meaning of Section 75, therefore, and concluding that where it speaks of a math or a temple it may be taken also to mean a religious endowment can this obstac