1. The petitioners are the hereditary trustees of the Kurumali Temple in the Thachanattukara Amsom of the Valluvanad Taluk. They question the validity of a scheme settled under S.63 of the Madras Hindu Religious Endowments Act, 192

6. According to them the scheme is ultra vires of the provisions of the Constitution and has to be struck down on that account.



2. It is common ground that the petitioners are entitled to succeed if they have the right to have the validity of the scheme tested in the light of the provisions of the Constitution. The contention of the Board is that no such right is available to them as the scheme was settled not after but before the Constitution came into force.



3. The Madras Hindu Religious Endowments Act, 1926, has since been replaced by the Madras Hindu Religious and Charitable Endowments Act, 1951, and the answer to the controversy indicated in the last paragraph will depend on the true construction to be placed on S.103 (a) of the latter enactment. The relevant portion of S.103 of the Madras Hindu Religious and Charitable Endowments Act, 1951, reads as follows:

"Notwithstanding the repeal of the Madras Hindu Religious Endowments Act, 1926 (hereinafter in this section referred to as the said Act)

(a) all rules made, notifications or certificates issued, orders passed, decisions made, proceedings or action taken, schemes settled and things done by the Government, the Board or its President or by an Assistant Commissioner under the said Act, shall, in so far as they are not inconsistent, with this Act, be deemed to have been made, issued, passed, taken, settled or done by the appropriate authority under the corresponding provisions of this Act and shall, subject to the provisions of clause (b), have effect accordingly."

The provisions of clause (b) are not material to this case and need not be considered.



4. The direction in sub-section (a) in so far as it is material to this case is that all schemes settled under the earlier Act shall be "deemed" to have been settled under the provisions of the later Act. The contention of the petitioners is that the words create a legal fiction which entitled them to have the provisions of the scheme tested and evaluated as if it were a post Constitution scheme settled under the Madras Hindu Religious and Charitable Endowments Act, 1951.



5. We are inclined to accept this contention. As stated by Lord Asquith in (1951) 2 All E. R.587;

" If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must Inevitably have followed from or accompanied it ... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."

This passage has been cited with approval in A.I.R. 1953 S. C. 244, A.I.R. 1958 S.C. 875 and A.I.R. 1959 S.C. 35

2. In the last of the three cases the Supreme Court added:

"It is a rule of interpretation well settled that in construing the scope of a legal fiction it would be proper and even necessary to assume all those facts on which alone the fiction can operate."



6. In the light of what is stated above we must hold that the petitioners are entitled to challenge the validity of the scheme in the light of the provisions of the Constitution and that the petition has to be allowed. Judgment accordingly, though in the circumstances of the case without any order as to, costs.



7. In the view we have taken it is unnecessary to consider the other contentions raised by the petitioners and they are not considered in this judgment.

Allowed.