JUDGMENT
1. This is an appeal against the judgment of the learned Subordinate Judge of Sivaganga, who decreed O.S No. 37 of 1975 filed by the respondents for setting aside the order passed by the Deputy Commissioner, Hindu Religious and Charitable Endowments, Madurai, dated 8th July, 1972 in O.A Nos. 16/68 (MDU) and 68/68 (MDU) and confirmed by the Commissioner, Hindu Religious and Charitable Endowments (Administration) Department, Madras, dated 2nd November, 1974 in Ap No. 51 and 52 of 1974, on his file after declaring that the A schedule property is not a religious institution and that the B schedule properties are not religious endowments. The property described in Schedule A, according to the plaintiff, is a vacant site with a peetam situate south of Satyamoorthi Road, Aruppukottai town. The properties described in schedule B are buildings bearing several door numbers. Palani-kumar alias Sakkarai Thevar and Durairaj Thevar, who are the paternal uncle's sons of plaintiffs 1 to 3 filed O.S No. 16 of 1968 before the Deputy Commissioner (Judicial), Hindu Religious and Charitable Endowments, (Administration) Department, Madras, under S. 63 (a) of the Tamil Nadu Hindu Religious and Charitable Endowments Act (Act 22 of 1959) (to be referred to hereafter as the Act) to declare that Sri Muthalamman temple in Aruppukottai (now described in schedule A annexed to the plaint) is a temple as defined under the Act. They also filed O.S No. 68 of 1968 under S. 63(c) of the Act for a declaration that the suit schedule properties (now described in schedule B annexed to the plaint) are the properties endowed to Sri Muthalamman temple. They contended that the suit schedule properties were purchased by Karuthiah Thevar on 21st May, 1910 for the benefit of the temple and that after his death, respondents 1 to 5 in the proceedings before the Commissioner (who are the plaintiffs in the suit) have been receiving the income and misappropriating the same. The Deputy Commissioner declared that the suit institution is a religious institution as defined under the Tamil Nadu Act 22 of 1959 and that the suit schedule properties are religious endowments. Against this order of the Deputy Commissioner, appeals were preferred before the Commissioner, Hindu Religious Endowments (Administration), Madras. By an order, dated 2nd November, 1974, the Commissioner dismissed the appeals and confirmed the order of the Deputy Commissioner. A copy of the order of the Commissioner was received by the plaintiffs on 20th February, 1975. Thereafter, notice under S. 80, C.P.C, was issued and this suit was filed on 23rd June, 1975, for the aforesaid reliefs against the Commissioner, Hindu Religious and Charitable Endowments (Administration), Department, contending that the suit temple is a private property, that the B schedule properties are not religious endowments and, that, therefore, the orders passed in Ap. No. 51 and 52 of 1974 by the Commissioner are liable to be set aside.
2. The defendant contended that the institution is a religions institution, that B schedule properties are religious endowments and that, in any event, the suit is barred by limitation.
3. The learned Subordinate Judge framed the following issues—
1. Whether the suit temple is a private property?
2. Whether the B schedule properties are not religious endowments?
3. Whether the orders passed in App. No. 51 and 52 of 1974 by the Commissioner, H.R and C.E Madras, are liable to be set aside?
4. Whether the suit is not maintainable?
5. Whether the suit is barred by limitation?
6. To what relief, if any, are the plaintiffs entitled?
After the documents were filed and marked and oral evidence was recorded and arguments were heard and the case closed, while delivering the judgment, the learned Subordinate Judge, without any notice to either party, and without applying his mind to the question of limitation raised by the defendant, deleted issue No. 5 regarding the bar of limitation and recast the issues as follows—
1. Whether A schedule property is a private religious institution or public religious institution?
2. Whether B schedule properties are the private properties of the plaintiffs or endowments to A schedule property?
3. Whether the suit is not maintainable?
Clubbing all the three issues ostensibly recast by him, the learned Subordinate Judge came to the conclusion that the A schedule property is a private religious institution, that the B schedule properties are the private properties of the plaintiffs, and not endowments to A schedule property, and that the suit is maintainable. He, therefore, decreed the suit with costs.
4. The points that arise for determination in this appeal are—
1. Whether the order of the Deputy Commissioner as confirmed by the Commissioner in appeal is liable to be set aside?
2. Whether the suit is barred by limitation?
5. Point No. 1: It is seen from Ex. B1, dated 17th October, 1967, an extract from the tax register, that the property comprised in door No. 334, which is the A schedule property, is Muthulamman temple and that it was exempted from payment of tax. Under S. 83 (1) (a) of the Tamil Nadu District Municipalities Act (V of 1920) places set apart for public worship and either actually so used or used for no other purpose are exempted from property tax. Such an exemption is granted after due enquiry by the authority concerned under the Tamil Nadu District Municipalities Act. Official acts are presumed to be duly performed, and such an enquiry, therefore, may be deemed to have been conducted and thereafter the A schedule property exempted from payment of tax. Karuthiah Thevar, the father of plaintiffs 1 to 3 and paternal grandfather of plaintiffs 4 and 5, who was then the trustee, has acquiesced in this declaration of the suit temple as a public temple for the purpose of exempting it from assessment to tax. I would go further and say that he took advantage of this exemption and after him, the plaintiffs also have acquiesced in such a declaration by the Municipality and have also taken advantage of the exemption granted till after the institution of the suit. It is seen from Ex. B2, an extract from the Ground rent register, that S. No. 334 in which the suit temple is situate, was described as Rakkayee Thirukkan Temple, represented by its trustee Karuthaya Thevar, son of Palanikumar Thevar.
6. The contention of the plaintiffs in this suit is that—
“The property described in A schedule is a place of worship belonging exclusively to and in the effective possession of the plaintiffs herein. Members of the public have no right of worship as of right therein. There has never been any deity installed in the said space nor has there been any daily pooja performed through any poosari or otherwise.’’
There is no averment in the plaint as to when the temple came into existence or who constructed it or who was in enjoyment before Karuthiah Thevar. While deposing as P.W.1, the third plaintiff, has also not stated who built the temple or what is called peetam and who has been in enjoyment before Karuthiah Thevar.
7. It is seen from Ex.A6, a copy of the judgment in O.S No. 408 of 1920 on the file of the District Munsif Court, Manamadurai, in which Karuthiah Thevar, the father of plaintiffs 1 to 3, was the first defendant, that the plaintiffs therein contended that the site and the Mantapam, which were the subject-matter of that suit and which are admittedly the A schedule property now, belong, in common to them and the defendants in that suit, and that originally the whole site belonged to Karuppana Thevar and was given by him to his daughter Rakkayee, who built the Thirukkan Mantapam thereon. It was further alleged that Rakkayee kept the site and the mantapam in common for her family and for the members of her father's family and during the festivals of Valavandamman Mariyamman, etc, conducted Thirukkan Mandagappadi and that the management of the Mandagappadi was with her father Karuppan Thevar. Karuppiah Thevar, the father of plaintiffs 1 to 3 herein contended that plaintiffs 1 to 6 in that suit were not his pangalis or the pangalis of defendants 2 to 6 in that suit, that the plaint properties belonged to one Palaniyandi Thevar and that after Palaniyandi Thevar, his wife Rakkayee and her sons, Soora Sanga Thevar enjoyed the same. Before the Deputy Commissioner, Hindu Religious and Charitable Endowments Department, in O.A 16 of 1968, the plaintiffs herein as respondents have contended that in the A schedule property, there is only a platform called Peetam and it was only called Rakkayee Matam or Muthalamman Temple. This case of the plaintiffs is undoubtedly false, as would be seen from the following facts: The suit temple could not have been constructed by and belonged to any of the forefathers of the plaintiffs, because it was not the subject matter of any partition among their forefathers. The plaintiffs as well as the aforesaid Sakkarai-Thevar, who was examined as D, W. 2, and Durairaj, the other applicant before the Deputy Commissioner, are descendants of one Palaniyandi Thevar. Rakkayee was the wife of Palaniyandi Thevar. Sora Sangu Thevar was the son of Karuppanna Thevar. Palaniyandi Thevar and Ramu Thevar were the sons of Soora Sangu Thevar. Palanikumar and Soora Sangu were the sons of Ramu Thevar. Karuthiah Thevar Ponnaiah alias Palaniyandi and Kuttaiyan alias Karuppana Thevar were the sons of Palanikumar, son of Ramu Thevar. Plaintiffs 1 to 3 are the sons of Karuthiah Thevar and plaintiffs 4 and 5 are the sons of Subbiah Thevar, the predeceased son of Karuthiah Thevar. Palanikumar alias Sakkarai Thevar and Durairaj are the sons of Ponniah alias Palaniandi, brother of Karuthiah Thevar. It is not the case of the plaintiffs either in the plaint or in the evidence of P.W.1 that their collaterals have had a hand in the management or even a right of worship in this temple and that any arrangement had been made or any custom is in existence for the election of selection of a manager or trustee from among the members of the various branches descending from the first Palaniandi Thevar and his wife Rakkayee. If the temple was founded by any of the ancestors of the plaintiffs the descendants of Palaniandi Thevar should have the right to manage the temple or offer worship therein or some arrangement should have been made for the choice of the trustee or manager from among the members of the various branches who are the descendanis of the common ancestor Palaniandi-Thevar. In the absence of any evidence or even an averment that there was such an arrangement among the collaterals, viz, an arrangement to select or elect a trustee, the case of the plaintiffs that this is a private place intended for the worship of the members of the family of the plaintiffs alone stands discredited,
8. It is also not alleged that the suit temple was the subject-matter of any partition among the descendants of the aforesaid Palaniandi Thevar and that in any such partition, the branch of Karuthiah Thevar became entitled to exclusively worship in the temple and manage the same. There is not a scrap of paper by or under which the suit temple has been dealt with in any partition among the members of the various branches or in any other manner of the members of the families claiming descent from Palaniandi Thevar and Rakkayee.
9. However, there is no doubt about the fact that this temple has been in existence from time immemorial. The earhest documents in which there is reference to this temple is Ex. B7, a registration copy of the sale deed executed by Alagappa Chettiar in favour of Ramaswmi Naicker on 8th October, 1885. In that document, the suit A schedule property which is the northern boundary of the property conveyed thereunder, is referred to as ‘Muthalamman Koil’. Similarly, in Ex. A5, an agreement executed by Chinna Chithan Chettiar in favour of Ramaswami Naicker in respect of the property west of the A schedule temple, on 21st September, 1904, the A schedule temple is referred to as ‘Mariamman peetam’. In Ex.A1, dated 21st May, 1919, which is a registration copy of the sale deed executed by Ramaswami Naicker in favour of Karuthiah Thevar, the father of plaintiffs 1 to 3, the suit temple is referred to as the eastern boundary and described as ‘Muthalamman Temple’. Ex.A3 is the certified copy of the decree, dated 10th November, 1913, passed in O.S 1417 of 1911 on the file of the District Munsif Court, Sattur, in which the properties comprised therein have been described as east of the Muthalamman temple and the common wall as well as west of Muthalamman temple. In Ex.A4, dated 28th February, 1911, a registration copy of the usufructuary mortgage deed executed by Karuthiah Thevar, father of plaintiffs 1 to 3, in favour of Sankaralingam Chettiar, the suit temple is referred to as eastern boundary of the property mortgaged and described as Muthalamman temple. Therefore, there is no doubt about the fact that this temple has been in existence from before 1877. If it was constructed by or belonged to Palaniandi Thevar or Rakkyee or their son Soora Sangu Thevar or any of his descendants, they should have dealt with the same as owners. That has not been done.
10. The evidence of P.W.1 in support of his case that members of the public did not offer worship therein as a matter of right and that the temple has been in the exclusive possession and enjoyment of the members of his family is that of an interested witness. As already observed, the contention that the members of his family are in exclusive enjoyment stands discredited by the absence of even a mere averment in the plaint as to the manner in which the person who is entitled to manage the suit temple is selected or elected by the descendants of Palaniandi Thevar and Rakkayee. The evidence of P.W.1 is not only that of an interested witness, but is inherently improbable. He is not able to say when the Peetam came into existence or who dealt with it.
11. P.W.2, who has been examined to corroborate the evidence of P.W.1 is a man of straw. I may say that P.Ws.2 to 5, who have been examined to corroborate the evidence of P.W.1 to prove that the suit temple is a private temple, are not even competent witnesses to speak about the management of the temple for the last 40 or 50 years and that their evidence is artificial and appears to have been tutored.
12. As against this, there is no reason to disbelieve the evidence of D.Ws.1 to 4, as their evidence is consistent with the indisputable facts of the case. The temple is situate in a public place adjacent to Satyamurthi Street. According to D. W.1 Karuthiah Thevar was only looking after the affairs of the temple. D.W.2, Sakkarai Thevar is one of the descendants of Palaniandi Thevar aforesaid and is a person entitled to worship in the temple as such a descendant. The plaintiffs have not conceded the right of any of their pangalis to worship in the temple. D.W.2 proves that members of the public offer worship in the temple as a matter of right and that there was also a cash box. D.W.3 who is a Divisional Inspector of the H.R and C.E Department, had visted this temple on several occasions and had seen the Peetam around which a cloth had been tied. He learnt that the temple had a local reputation. He proves that even the B schedule properties were entered as the properties of the Thirukkan Madathukkadai trustee, as per Ex.B1 D.W.4 proves that there was formerly an icon of a Goddess installed in the temple which seems to have been removed subsequently either by the plaintiffs or by Karuthiah Thevar in order to support their case that it is not a temple. D.W.4 proves that members of all communities worship in the temple as a matter of right and that merchants used to commence writing new accounts after offering worship in the temple. Therefore, accepting the evidence of P.Ws.1 to 4, I find that the temple described as the A schedule property by the plaintiffs is a public temple. The evidence of D.Ws.1 to 4 is supported by the probabilities discussed above.
13. However, there is no documentary evidence to prove that the B schedule properties were dedicated to the suit temple at any time, though they might have been purchased with the intention of utilising the income therefrom for the performance of the poojas and the maintenance of the temple. The transaction in respect of the B schedule properties have been entered into by Karuthiah Thevar, and subsequently by some of the plaintiffs in their own names and adversely to the suit temple. Except Ex.B1, which shows that the B schedule properties were registered as the properties of Thirukkan Nadathukkadai represented by its trustees, there is nothing to show that the B schedule properties were endowed on the suit temple, and therefore, this conclusion of the learned Subordinate Judge is correct and has to be confirmed.
14. Point No. 2: However, this appeal has to be allowed and the suit has to be dismissed on the question of limitation. The plaintiffs received a copy of the order of the defendant on 20th February 1975. The plaintiffs are entitled to file a suit under S. 70 (1) of the Act to set aside the order passed by the Commissioner within 90 days from the date of receipt of the order of the Commissioner by them. They have instituted this suit under S. 70 of the Act only on 23rd June, 1975. The learned counsel for the respondents contends that a notice under S. 80, C.P.C was issued on 22nd April, 1975 and was served on the Commissioner on 23rd April, 1975, that a period of two months had to expire after the issue of notice under S. 80, C.P.C that this period of two months also has to be excluded in computing the period of limitation within which the suit should be filed, that thus computed the suit should be filed on 23rd July, 1975, and that this suit having been filed on 23rd June, 1975 is in time.
15. S. 15 (2) of the Limitation Act lays down that—
“In computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required, in accordance with the requirements of any law for the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded.”
It is on this provision of the Limitation Act that the learned counsel for the respondents now relies to support of his contention that the suit is in time. Sub-S. (1) of S. 15 of the Limitation Act would apply only to a case Where the law requires a notice to be given to the defendant or defendants. If a notice under S. 80, C.P.C is not necessary, the plaintiffs cannot rely on S. 15 (2) of the Limitation Act.
16. S. 70 of the Act confers a statutory right on the plaintiffs to institute a suit against the order passed by the Commissioner under sub-S. (1) or sub-S. (2) of S. 69 and relating to any of the matters specified in S. 63, S. 64 or S. 67: or under S. 63, S. 64, or S. 67 read with sub-S.(1) (a), (2) or (4) (a) of S. 22 or under S. 65, within 90 days from the date of receipt of the order of the Commissioner. For enforcing this statutory right, no notice under S. 80, C.P.C is necessary.
17. In Chinna Kandar v. Commissioner, H.R and C.E, Madras . I.L.R 1980 2 Mad. 213., Sethuraman, J. has held that the absence of a notice under S. 80, C.P.C is not fatal to the maintainability of a suit under S. 70 of the Act. The learned Judge has observed that—
“It may be seen that S. 70 itself does not provide for any notice preceding the suit. I considered this question in App. No. 207 of 1974—P. Kaliyana Sundaram and others v. Commissioner, H.R and C.E (Admn), Madras and others, dated 20th January, 1978, and after discussing the cases cited it was held that the non-issue of notice under S. 80, C.P.C was not fatal to the maintainability of the suit. In coming to this conclusion, a decision of a Bench of this Court in Lakshmana v. Commissioner for H.R and C.E was followed. In that case there was an application under S. 57 (b) of Madras Act XVI of 1951. The Deputy Commissioner held that the office of the trustee of the suit temple was not hereditary and that the appellants in that case were not hereditary trustees. They, thereafter, filed an appeal to the Commissioner, but without success. They then filed a suit in the City Civil Court, Madras, for cancelling the order of the Commissioner and for being recognised as hereditary trustees of the temple. The suit was dismissed on the ground that no notice under S. 80, C.P.C had been given prior to the institution of the suit. When the matter came before Sadasivam and V. Ramaswami, JJ. they pointed out that—“No notice under S. 80, C.P.C is required in respect of a statutory suit to set aside or cancel the order of the Commissioner under the provisions of the Act.”
The learned Judge has considered the ratio in Santhanagopala Chettiar v. Seetharama Chettiar . 1968 2 M.L.J 41. Santhanagopala v. Seetharama . 87 L.W 182 = I.L.R 1974 3. Mad. 222. and State of Maharashtra v. Chanderkant . A.I.R 1977 S.C 148..
18. Nevertheless, the learned counsel for the respondents relies on the same decision for his contention that a notice under S. 80, C.P.C is necessary and that therefore, the plaintiffs are entitled to claim the benefits of S. 15 (2) of the Limitation Act.
19. In Lakshmana Shah v. Commissioner for Hindu Religious and Charitable Endowments, Madras, Sadasivam, J., speaking for the Bench, has observed that—
“Even assuming that such a statutory suit could be combined with a suit in which the applicability of the Act to the suit temple is challenged, the requirements of the valid institution of the later suit should be complied with.”
In relying on this statement of the learned Judge, the learned counsel for the respondents has completely ignored the earlier observation of the learned Judge in the same case that—
“No notice under S. 80, C.P.C is required in respect of a statutory suit to set aside or cancel the order of the Commissioner under the provisions of the Act”.
In that case, the appellants filed an application under S. 57 (b) of the Madras Hindu Religious and Charitable Endowments Act 19 of 1951, before the Deputy Commissioner claiming to be the hereditary trustees of Sri Balasubramaniaswami Temple, Narayananaicken St, Komaleswaranpet, Madras-2. The Deputy Commissioner held that the office of the trustee of the suit temple is not hereditary and that the appellants are not hereditary trustees. The appeal preferred by the appellants to the Commissioner for Hindu Religious and Charitable Endowments, Madras, was dismissed, and the Commissioner also made an observation that the Area Committee would select trustees from the members of the Somavamsam Bhuja Kshatria Kulam. Thereafter, the suit was filed in the City Civil Court, Madras, not only for setting aside or cancelling the order of the Commissioner, but also to recognise their claim to the hereditary trusteeship of the suit temple to declare that they and other members of the Somavasam Bhuja Kshatria Kulam or caste as a religious denomination exclusively own and conduct the affairs of the temple through their representatives and for an injunction restraining the Commissioner for Hindu Religious and Charitable Endowments, Madras, from enforcing the provisions of the Madras Act XXII of 1959 inclusive of the provisions relating to the appointment of trustees so as to interfere with the rights of the said religious denomination. Thus, it would be seen that it was a mere statutory suit for setting aside the order of the Commissioner, but reliefs which are beyond the scope of a suit under S. 70 of the Act were also sought, and, therefore, the learned Judge held that even if a statutory suit could be combined with a suit in which the applicability of the Act to, the suit temple is challenged, the requirements of a valid institution of the latter suit should be complied with. In other words, a notice under S. 80, C.P.C in respect of the latter suit is mandatory.
20. The learned counsel for the respondents again relies on a decision of Ismail, J, (as he then was) in Santhanagopala Chettiar v. Seetharama Chettiar wherein it has been held that the Commissioner, while functioning under the provisions of the Act, functions only as a public officer or Government servant and as such the provision contained in S. 80, C.P.C will apply to him. However, the facts of that case are totally different from the facts of the instant case. That appeal was from a judgment of the learned Subordinate Judge, Kumbakonam, reversing the judgment of the learned District Munsif, Kumbakonam in O.S 359 of 1963 instituted for a declaration that Sri Rajagopalaswami temple set out in schedule A and its properties set out in schedule B and C exclusively belonged to Pattusaluvar community, residents of Solamaligai village, for a direction to defendants 1 to 3 to put the plaintiffs in possession of the same and for a direction to defendants 1 and 2 to render a true and proper account of their management as trustees of the suit temple from the date of their appointment. The basis of that suit was the claim that the temple belonged to the members of the Pattusaluvar community exclusively, that they alone owned the temple and were worshipping the deities of the temple, that it was a private temple which belonged to the community residents of the village and nobody else had any right of worship or in the properties acquired for the said temple and that the Pattusaluvar community people were the hereditary adheenakarthars of the said temple nominated as such by the members of the community. Defendants 1 to 3 in that suit were appointed as trustees of the temple by the Area Committee under the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. The Area Committee was impleaded as the fifth defendant and the Commissioner, Hindu Religious and Charitable Endowments, was impleaded as the sixth defendant in that suit. That was not a statutory suit under S. 70 of the Act. The contention of the plaintiffs in that suit was that the Act itself was not applicable to the temple in question and that the Deputy Commissioner had no jurisdiction under S. 63 (a) of the Act to decide the question whether the Act is applicable to the temple. As the suit was not a statutory suit under S. 70 of the Act, notice under S. 80, C.P.C, was held to be necessary. On appeal from the judgment of Ismail, J. (as he then was), a Bench of this Court in Santhanagopala v. Seetharama, held that it was not disputed that—
“…if the substantial question to be decided in the suit is as to whether the temple is a denominational one or not, the jurisdiction of the Civil Court could not be ousted under the provisions of the Act. Under S. 63 of the Act, though the Deputy Commissioner is given the exclusive jurisdiction to decide as to Whether any institution is a religious institution or not, the question whether a temple is a denominational temple coming under Art. 26 of the Constitution is certainly not within his jurisdiction. That is a question which has necessarily to be decided by the Civil Court.”
The suit in that case was for such a declaration, and not a statutory suit under S. 70 of the Act, and therefore, the Bench observed that—
“The learned Judge has held that notice under S. 80, C.P.C, is necessary to claim any relief as against defendants 5 and 6, and because no such notice has been given by the plaintiffs before instituting the suit, the suit should necessarily fail as against those two defendants.”
21. The distinction between a statutory suit under S. 70 of the Act and the suit for any other relief against the Commissioner should be kept in mind to appreciate the able contention of Selvi K. Suguna Devi, for the Government Pleader. Her contention is that this suit being a suit under S. 70 of the Act, which gives a statutory right to challenge the order of the Commissioner, no notice under S. 80, C.P.C, is contemplated and that, therefore, the notice issued by the plaintiffs under S. 80, C.P.C, was a superfluity and the plaintiffs cannot rely on the same to extend the period of limitation.
22. The learned counsel for the respondents, however, relies on a decision of the Supreme Court in State of Maharashtra v. Shri Chanderkant, in support of his contention that even for a statutory suit notice under S. 80, C.P.C, is necessary. In that case, it was held that—
“The provisions contained in S. 8 of the (M.P Public Trusts) Act, indicate that the suit contemplated there is against the Public officer in his official capacity within the meaning of S. 80, C.P.C
The provisions of S. 80, C.P.C, are express, explicit, and mandatory See Bhagchand Dagadusa v. Secretary of State for India in Council and others.
The Registrar in the present case held it to be a public trust. The declaration sought for in this suit is that this is not a public trust. The High Court was wrong in holding that suit under S. 8 of the Act cannot be regarded as a suit against the Government.
The Full Bench held that neither the Government nor the Registrar was competent to give any relief to any person who felt aggrieved by the order of the Registrar.
The following provisions of the Act are important to be noticed. The Collector shall be the Registrar of Public Trusts in respect of every public trust in the principal office or the principal place of business of which is situate in his district. Within three months from the date on which S. 4 comes into force in any area or from the date on which the public trust is created, the working trustee of every public trust shall apply to the Registrar having jurisdiction for the registration of the public trust. On receipt of an application the Registrar shall make an enquiry as contemplated in S. 5 of the Act. The Registrar then shall record his finding with reasons. The Registrar shall cause entries to be made in the register. Any person aggrieved by any finding of the Registrar may within six months from the date of the publication of the notice institute a suit in a civil court to have such finding set aside or modified. In every such suit, the civil court shall give notice to the State Government through the Registrar and the State Government if it so desires, shall be made a party to the suit.”
Subsequently, it was held that the language of S. 80, C.P.C is that a notice is to be given against not only the Government but also against the public officer in respect of any act purporting to be done in his official capacity, that the suit was to set aside the order made by a public officer in respect of an act done in the discharge of his official duties, and therefore, notice under S. 80, C.P.C was required. The question whether the Commissioner, Hindu Religious and Charitable Endowments, who is the defendant in this case, is a public officer or not is not in dispute now, and the Government need not be added as a party at the instance of the defendant or on its own application. No notice need be given to the State Government in the instant case as contemplated under the M.P Public Trusts Act. These facts distinguish that case from the instant case.
23. With respect, I agree with observation of Sethuraman, J. in Chinna Kandar v. Com-missioner, H.R and C.E, Madras, that a suit under S. 70 of the Act cannot be equated to suit against a public officer for which a notice under S. 80, C.P.C is contemplated. Therefore, the plaintiffs were not bound to issue a notice to the defendant. As a notice under S. 80, C.P.C was not necessary, the plaintiffs cannot rely on S. 15 (2) of the Limitation Act, to exclude the period of two months during which they could not file the suit after the issue of notice under S. 80, C.P.C This suit ought to have been filed on 20th May, 1975. Therefore, the suit is barred by limitation.
24. Hence, this appeal is allowed, the judgment and decree of the learned Subordinate Judge are set aside and O.S No. 37 of 1975 on the file of the Sub Court, Sivaganga is dismissed. There will be no order as to costs.
VCS.