(Appeal (disposed of on 21-2-1945) against the decree of the Court of the Subordinate Judge, Cuddalore in A.S. No. 125 of 1941 preferred against the decree of the Court of the District Munsif, Chidambaram in O.S. No. 469 of 1939.)

Leach, CJ.

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.

By a will dated the 12th April 1901, one Muruga Padayachi directed that the income of certain immoveable 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 properties 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 S. 44 of the Madras Hindu Religious Endowments Act of 1926. Thereupon the first appellant filed an application under S. 44 and obtained an order for the 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 Munsif 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 S. 4

4. The appellants maintained that the will was valid and averred that the order of the District Judge under S. 44 operated as res judicata. The District Munsif held that the will was invalid and that the order under S. 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.

As we have indicated, the will is invalid and the only real question is whether the order of the District Judge under S. 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 (45 Mad. 320 = 16 L.W. 1 (P.C.) has no application here. The case is governed by the judgment of their Lordships in Bhagwan Din v. Gir Harsaroop and Same v. Kundan Gir (15 Luck. 1 = 51 L.W. 4 (P.C.). There the Judicial Committee said,

the decision of the District Judge under the Act of 1920a decision from which by S. 12 there is no appealis 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 judicata 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 S. 44, but the Act does not say that the order is final. This Court held in Sri Kothandaramaswami Temple at Adambar, represented by its Trustees S. Vaidhinatha Ayyar and another v. Veezhinatha Ayyar (1945) 1 M.L.J. 63 = 57 L.W. 12) that S. 44 does not preclude the trustees from filing a suit in the ordinary Civil Court having jurisdiction. Therefore the remedy provided by S. 44 is not the only remedy open.

For these reasons we hold that the doctrine of res judicata does not operate and dismiss the appeal with costs.