(Delivered by The Chief Justice.)
There appears to be little merit in this appeal, but at the same time the law is on the side of the appellant. They are trustees of a charity connected with the Sri Nachiar Temple at Srivilliputtur. The charity is called the Madras Sri Boni Narayana Pillai Annadhanakattalai charity. Its object is the daily feeding of Brahmans at this temple.
The Madras Hindu Religious Endowments Board considered that the endowment was a specific endowment and attached to the temple and consequently levied an annual contribution under S. 69 of the Madras Hindu Religious Endowments Act, 1927. Thereupon the appellants filed a petition (O.P No. 83 of 1940) in the Court of the District Judge of Ramnad and for this purpose invoked Sub-S. (2) of S. 84 of the Act. Sub-S. (1) of that section says that if a dispute arises as to whether an institution is a math or temple as defined in the Act or whether a temple is an excepted temple, the dispute shall be decided by the Board. Sub-S. (2) gives the person affected by the decision the right to apply within one year to the District Court to modify or set aside the decision; but, subject to the result of any such application the order of the Board is final.
In O.P No. 83 of 1940 the Madras Hindu Religious Endowments Board, the respondent in the application and the respondent in this appeal, raised the contention that S. 84 did not apply in such a case, but it subsequently withdrew the objection and the District Judge proceeded to decide the case on the merits. As a result of investigation he came to the conclusion that the Board was right and that the charity did constitute a specific endowment of the temple.
Notwithstanding that the appellants had relied on S. 84(2) they filed in the Court of the Subordinate Judge of Ramnad the suit which has given rise to this appeal. They persist in their previous contention that this is a private charity and therefore cannot be regarded as a specific endowment of the temple. They also say that the suit lies because an application under S. 84 was not open to them. This is a complete volte face. As a result of the adverse finding of the District Judge in O.P No. 83 of 1940, the Subordinate Judge held that S. 84 applied to the case and that the District Judge's decision on the petition under Sub-S. (2) operates as res judicata. Consequently he dismissed the suit. The appeal is from the decree of dismissal.
It is quite clear that S. 84 does not apply to the case. It only applies to disputes as to whether an institution is a temple or math or whether a temple is an excepted temple. The dispute here is not with regard to the temple or a math. The dispute is whether the charity of which the appellants are trustees constitute a specific endowment of the Sri Nachiar temple. Had the appellants not invoked S. 84 they certainly would have had the right to contest in a regular suit the decision of the Board under S. 69.
The question then is whether the fact that they did proceed in the first place under S. 84 precludes them from filing this suit. We consider that it does not. The District Judge had no power to pass an order on the application under S. 84(2) because the dispute was not one of the nature referred to in the first sub-section. We do not think that the fact that the appellants wrongly proceeded under that section takes away their right to have the question in dispute decided in other proceedings. There have been two decisions against them, one by the Board and the other by the District Judge but neither operates as res judicata. Consequently we hold that the District Judge had no power to decide the question in O.P No. 83 of 1940.
The appeal must be allowed and the case remanded to the Subordinate Judge's Court to hear and decide on the merits. We make no order as to costs except directing the refund to the appellants of the Court-fee paid on the memorandum of appeal.
N.R.R