These are appeals from the decree of the Temporary Subordinate Judge of Palghat at Calicut by which he ordered the removal of defendants 1, 2, 4, to 7 and 25 from the trusteeship of the Parakkat Baghavathi Devaswam and directed a scheme to be framed for the management of the Devaswam. The suit was instituted by the President of the Dharma Rakshana Sabha and another under Sect. 92 of the Code of Civil Procedure after obtaining the sanction of the Advocate-General. Their case is that the Devaswam is an ancient public religious institution, that defendants Nos. 1 to 7 who were in management of the temple and its properties at the time of the institution of the suit and their predecessors were guilty of gross breaches of trustthey are specified in paragraph No. 8 of the plaint, and they concluded their plaint with prayers for reliefs specified in Sect. 92 of the Code. Defendants Nos. 8 to 11 are members of the trustee family and claimed a share in the management of the Devaswam with defendants Nos. 1 to 7, which claim however the latter denied. Defendants Nos. 12 to 23 have obtained mortgages of the Devaswam properties from the trustee defendants in the years 1904, 1905, 1906 and 1908. These transactions are challenged as fraudulent by the plaintiffs, who say they are not binding on the Devaswam and pray for a declaration to that effect.

The main defence of all the defendants was that the plaint Devaswam was not a public temple at all, but was a private temple belonging to the trustee family; the alienee defendants also pleaded that no relief could be given against them in a suit under Sect. 92 and that they should be struck out of the record.

The trial Judge having held that the burden of proving that the Devaswam was a private one was on the defendants in consequence of a statement made by the predecessor of the trustee defendants as to the origin of the temple came to the conclusion that they had not discharged that burden and therefore held that the temple was a public religious institution. He also held that defendants Nos. 1, 2 and 4 to 7the 3rd defendant had died before the trial,were guilty of gross mis management and removed them from the trusteeship and directed a scheme. He dismissed the suit against the alienee defendants on the ground that the suit was bad as against them for misjoinder of parties. The several parties have preferred appeals against the portions of the decree which are against them.

The main appeal (Appeal No. 389 of 1914) is that of the trustee defendants. Besides challenging the decree on the main ground that the suit temple was a private endowment, the learned pleader raised two other points. First he contended that the suit was incompetent as no sanction was obtained under the Religious Endowments Act for the removal of trustees and without such a sanction removal of trustees could not be ordered even though it is one of the reliefs which plaintiffs can ask under Sect. 92 after obtaining the requisite sanction under that section. We think the language of Sub-Clause 2 of Sect. 92, is quite clear and is against this contention. Under Sect. 539 of the old Code of Civil Procedure corresponding to Sect. 92 of the new Code, there was a difference of opinion as to whether a trustee could be removed, and whether persons who had any special interest in the trusts of a public charity could institute suits and ask for the reliefs specified in the section without sanction or whether persons interested in charities could bring representive suits under Sect. 30 of the old Code in the ordinary Courts. See Giyana Sambandha Pandara Sannadhi v. Kandasami Tambiran (I. L. R., 10 Mad., 375, 505), Rangasami Naickan v. Varadappa Naickan (I. L. R., 17 Mad., 462) Ganapali Ayyan v. Savithri Ammal (I. L. R., 21 Mad., 10), and Budree Das Mukim v. Chooni Lall Johurry (I. L. R., 33 Cal., 789) [LQ/CalHC/1906/11] . The new Sect. 92 was intended to set at rest these doubts and Sub-Clause 2 was added in order to make it clear that the provisions of the section are mandatory and that no suit could be brought for any of the reliefs specified in the section except under the conditions laid down in the Section; at the same time the special jurisdiction of the District Courts under the Religious Endowments Act was saved, so that a person desirous of suing for the removal of a trustee, or for such other specific relief as can be given him under that Act is at liberty to do so, and is not bound to comply with the provisions of Sect. 9

2. It is to be observed that a suit under Sect. 92 may be instituted in the Court of a Subordinate Judge while a suit under the Religious Endowments Act can only be instituted in the District Court. Under the old Code when suits under Sect. 539 could only be instituted in the District Court it was usual for plaintiffs who wanted the removal of trustees and also a scheme, to obtain sanction under Sect 14 of the Religious Endowments Act and from the Advocate-General or the Collector. It is obvious that this was a cumbrous and inconvenient procedure, more especially as the powers of the Court in dealing with a suit under the Religious Endowments Act were in some respects larger than in an ordinary suit: for example there can be compulsory arbitration in a suit under Act XX of 1863. Now under the new Code Subordinate Judges Courts can be invested with jurisdiction under Sect. 9

2. If the contention of Mr. Rangachariar is accepted it would mean that in spite of the fact that the removal of a trustee is one of the reliefs specifically mentioned as one which can be granted under Sect. 92, plaintiffs who require such a relief along with others specified under Sect. 92 must file two different suits one in the District Court under Act XX of 1863 and another under Sect. 92it may be in a different Court. This, we think, is an unreasonable construction of Sub-Clause 1 of Sect 9

2. In two cases in this Court, ( Nadesi Pandara Sannadhi v. Ramalingam Pillai (24 M.L.J., 658) and Venkataranga Charlu v. Krishnama Charlu (I.L.R., 37 Mad. 184), the view which we have taken was adopted and except for the strenuous arguments of Mr. Rangachariar, we would have rested content with simply following these cases.

The next point is this. The sanction of the Advocate-General was to the plaint as framed now including reliefs against alienees. Inasmuch as no relief could be given against the alienees declaring the alienations void, it is said the suit must be dismissed as the sanction was given on a misapprehension of the powers of the Court under Sect. 9

2. We think there is nothing in the contention. The jurisdiction of the Court could not depend on the decision of the Court as to whether it can or will allow some of the reliefs asked for. There can be no doubt that the substantial reliefs asked for were those specified in the section. The cases cited by the learned pleader for the appellants were those in which the action as brought was substantially different from that which was sanctioned.

Coming then to the substantial question in the appeal, viz. , whether the suit temple was a private or a public religious institution, we have come to the conclusion that the temple is a public temple. It is no doubt true that the burden was on the plaintiffs to show that the temple is a public temple; and we are unable to agree with the learned Judge in the Court below that the statement F, in which a predecessor of the trustee defendants state I that the temple was founded by Parasurama, the mythical founder of Kerala in any way shifted the burden; nor are we able to attach any importance to a statement of that kind as affording any evidence of the origin of the temple. This mistake of the Judge and the nature of his finding on this issue has necessitated an examination of the evidence in the case on this question.

It is admitted that the temple is a very ancient temple and its origin or foundation is unknown. There are hereditary offices in the temple and the office-holders have a right to perform certain services and to receive the emoluments fixed thereforDefence 10th witness and Exhibit W. There is a flag-staff and a special Pooram festival is performed. Ubayams and Utsavams are performed by the public with subscriptions collected from the publicDefence 2nd witness. Oaths are taken in the temple under the Oaths Act without any objection by the trustees.Exhibit K. A. tank dug out of the temple funds was held to be a public tank: (See Exhibits F, LXXIII. and LXXIIIA). The Palghat Rajahs who were the sovereigns of the country at one time asserted Melkoima rights over the suit temple and the predecessors of the trustee defendants have allowed that Melkoima right in the temple did existExhibits C and XXXIX. It is in evidence that the general public have a right to worship. It is not a single deity which is worshipped, but it appears that there are two temples attached to the main temple, one dedicated to Siva and the other to Vishnu. Even outcastes are allowed to worship from a distance near the idol of Kshettrapala or the guardian of the temple. The temple is admittedly outside the compound of the residence of the trustee defendants and of the ancient Nair family whose rights the Pattar family acquired by adverse possession. These facts clearly show that the temple is a public temple. As against this the appellants are able to rely only on general statements, that some of the indicia above set out are to be found in other institutions which are said to be private institutions or that there are no public temples in Malabar. We do not think that is sufficient. We therefore confirm the finding of the Lower Court that the temple is a public religious institution.

The learned pleader for the trustee appellants scarcely contended that if the institution was a public charitable trust, the order for their removal was wrong. There is enough in the admitted facts of the case to show that the present trustees are not person with whom the management could safely be left. But the learned Judge in the Court below has also ordered the removal of the 25th defendant, the son of the 3rd defendant, who was introduced into the suit after the death of the 3rd defendant. There were no charges against him and he was not in fact in management. We must reverse the order of the Lower Court in so far as it directs his removal.

Only one other question was argued in these appeals and that was in the appeal by the plaintiffs. The learned Judge by his decree, after having made a declaration that the properties in Schedules A and B to the plaint were trust properties, ordered the dismissal of the action the alienee defendants Nos. 12 to 23. The appellants contend that the decree is liable to be misunderstood, and construed as enabling the alienee defendants in any future proceedings to contend that the properties are not trust properties. The learned pleaders for the alienees agree that the decree may be so amended as to make it clear that this declaration was binding on them also. Mr. Ganapathi Aiyar on behalf of the plaintiffs also contended that the Court was bound to decide whether the alienations were binding on the institution and give appropriate reliefs against the alienees in this suit. The decisions of this Court in Raghavalu Chetty v. Pellali Sitamma (27 M.L.J., 206) and Rangasamy Naidu v. Chinnasamy Iyer (M.L.J., 325) are against this contention and we are bound by them. We must, therefore, confirm the decree of the Lower Court in so far as it declined to grant relief against defendants Nos. 12 to 23. The question whether the alienations are or are not binding on the institution and whether the right of the institution to challenge them is now barred by limitation as pleaded by some of the alienees can be tried in a suit by the trustee or trustees who may come in under the scheme.

Appeal No. 46 of 1915.

Defendants Nos. 10 and 11 (in O.S. No. 12 of 1912 on the file of the Court of the Temporary Subordinate Judge of Palghat at Calicut) instituted a suit against defendants Nos. 1 to 7 claiming a share in the management. They also said that the institution was a private endowment. Their suit was dismissed on the ground feat as the institution is now found to be a public trust, their claim to a share on the footing that it was a private endowment was not maintainable. They appeal in Appeal Suit No. 46 of 1815. As they are parties to the suit under Sect. 92 and as we agree that a scheme should be framed for the management of the trust in which the claims if any of the members of the family of the trustees may be recognized if it is possible to do so without prejudice to the interests of the institution which of course is the primary thing to be considered, we dismiss the appeal.

As the decree in Original Suit No. 12 of 1912 on the file of the Court of the Temporary Subordinate Judge of Palghat at Calicut is not as clear as it might, be, and in view of the alterations suggested by us, we substitute the following decree:



1. Declare that the Parakkat Baghavathi Devaswam is a public religious institution and that the properties described in Schedules A and B attached to this decree are the properties of the Devaswam;



2. that defendants Nos. 1, 2 and 4 to 7 be and are hereby removed from the management of the Parakkat Baghavathi Devaswam and its properties;

3. that the Court of Temporary Subordinate Judge of Palghat at Calicut do frame a scheme for the management of the Devaswam and its properties with due regard to the claims if any of the members of the family of defendants Nos. 1 to 7 and 8 to 11 other than the dismissed trustees;



4. that the plaintiffs suit in other respects be dismissed.

Appeals No. 406 of 1914 and 46 of 1915 and Civil Miscellaneous Appeals Nos. 37 and 47 of 1915 are dismissed.