Suryamurthy, J.@mdashThis is an appeal against the judgment of the learned Subordinate Judge of Sivaganga, who decreed Original Suit 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 Original Application No. 16 of 1968 (MDU) and 68 of 1968 (MDU) and confirmed by the Commissioner,
Hindu Religious and Charitatable Endowments (Administration) Department, Madras, dated 2nd November, 1974 in Appeal Petition Nos. 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 Sathyamurthy Road,
Aruppukottai Town. The properties described in Schedule B are buildings bearing several door numbers. Palanikumar alias Sakkarai Thevar and
Durairaj Thevar, who are the paternal uncle''s sons of Plaintiffs 1 to 3 filed Original Application No. 16 of 1968 before the Deputy Commissioner
(Judicial), Hindu Religious and Charitable Endowments (Administration) Department, Madras, u/s 63(a) of the Tamil, Nadu Hindu Religious and
Charitable Endowments Act (XXII 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. Original Application No. 68 of 1968 u/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 propertied
endowed on 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 XXII 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 Deputy Commissioner was received by the Plaintiffs on 20th February, 1975. Thereafter, notice u/s 80, CPC 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 Appeal Petition Nos. 51 and 52 of 1974 by the Commissioner are liable to be set aside.
2. The Defendant contended that the institution is a religious 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 Appeal Petition Nos. 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?
After the documents wore filed and marked 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 estensibly recast by him the learned subordinate Judge came to the conclusion that the A schedule property is a private
religions institution, that the B schedule properties are the private properties of the Plaintiff, 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 exhibit B-1, 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 Muthalumman Temple and that it was exempted from payment of tax. u/s 83(1)(a) of the Tamil Nadu
District Municipalities Act (V of 1920) Places se apart for public worship and either actually used or used for another purpose are exempted from
property tax. Such an exemptio 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 Plaintiff 1 to 3 and paternal grand-father of Plaintiff 4 and 5, who was
then the trustee, has acquired 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 acquiseed 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 exhibit B-2, an extract from
the ground Rent Registrar, that Survey No. 334 in which the suit temple is situate, was described as Rakkayee Thirukkan Temple represented by
its trustees Karuthayya Thevar, son of Palanikumar Thevar.
6 The contention of the Plaintiffs is 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 as there been any
daily pooja performed through any poosari or otherwise.
7. There is no averment in the plaint as to when the temple came into existence or who contracted 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.
8. It is seen from exhibit A-6, a copy of the judgment in Original Suit No. 403 of 1920 on the file of the District Munsif''s 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 Karuppanna Thevar and was given by him of 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 Karuuppana Thevar Karuthiah 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 Sangu Thevar enjoyed the same. Before the Deputy
Commissioner, Hindu Religious and Charitable Endowments Department in Original Application No. 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 fore-fathers of the Plaintiffs, because it was not the subject-matter of any partition among Their
fore-father''s. The Plaintiff''s as well as the aforesaid Sakkarai Thevar, who was examined as D.W.2, and Durairaj, the other applicant before the
Deputy Commissioner are descendant of one Palaniyandi Thevar. Rakkayee was the wife of Palaniyandi Tevar. Soora Sangu Thevar was their
son. Karuppana Thevar, Palaniyandi Thevar and Ramu Thevar were the sons of Soora Sangu Thevar. Palani Kumar and Soora Sangu were the
sons of Ramu Thevar. Karuthiah Thevar, Ponniah alias Palaniyandi and Kuttayyan alias Karuppana Thevar were the sons of Palani Kumar, son of
Ramu Thevar. Plaintiffs 1 to 3 are the sons of Karuthiah Thevar, and Plaintiffs 4 and 5 are the sons of Sabbiah Thevar the pre-deceassd son of
Karuthiah Thevar. Palani- Kumar alias Sakkarai Thevar and Durairaj are the sons of Ponniah alias Palaniyandi, 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 band 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 or 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 descendants 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 Plaintiff that this is a private place intended for
the worship of the members of the family of the Plaintiffs alone stands discredited. 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 deals
with in any partition among the members of the various branches or is any other, manner by any 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 earliest document in which there is
reference to this temple is exhibit B-7, a registration copy of deed executed by Alagappa Chettiar in favour of Ramasami Naicker, on 8th October,
1885 In that documents, the suit A schedule property, which is the northern boundary of the property conveyed thereunder, is referred to as
Muthahmman Koil. Similarly, in exhibit A-5 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 Mariyamman Peetam. In exhibit A-1,
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 as the eastern boundry and described as Muthalamman temple. Exhibit A-3 is the certified copy of the
decree, dated 10th November, 1913, passed in Original Suit No. 1417 of 1911 on the file of the District Munsif''s court, Sattur, in which the
properties comprised therein have been described as east of the Muthalamman temple and the common wall as well as western of Muthalamman
temple. In exhibit A-4, 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 the western boundry 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 Rakkayyee or their son Soora Sangu Thevar. or any of his descendant they should have dealt with the
same as owners. That has not been done,
10. The evident 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 he 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 descredited by the absence of even a mere averment in the plaint as to
the manner in which the parson, who is entitled to manage the suit temple is selected of 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.W.s 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 Palaniyandi 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 Pangalies 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 visited 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 exhibits B-1, 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 or right and that merchants used to commence writing new account after
offering worship in the temple. Therefore, accepting the evidence of D.W.s 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 transactions 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 exhibit B-1, which shows that the B schedule properties were registered as the
properties of Thirukkan Madathukkadai represented by its trustee, there is nothing to show that the B schedule properties were endowed on She
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 u/s 70(1) of the Act to set aside the order
passed by the Commissioner within ninety days from the date of receipt of the order of the Commissioner by them. They have instituted this suit u/s
70 of the Act only on 23rd June, 1975.
15. The learned Counsel for the Respondents contends that a notice u/s 80, CPC 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 u/s 80, CPC 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 could be filed on 23rd
July, 1975 and that this suit having been filed on 23rd June 1975 is in time.
16. Section 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 of sanction shall be excluded.
It is on this provision of the Limitation Act that the learned Counsel for the Respondents now relies in support of his contention that the suit is in
time. Sub-section (1) of Section 15 of the Limitation Act would apply only to a case where the law requires a notice to be given to the Defendants
or Defendants. If a notice u/s 80, CPC Code, is not necessary, the Plaintiffs cannot rely on Section 15(2) of the Limitation Act.
17. Section 70 of the Act confers a statutory right on the Plaintiff to institute a suit against the order passed by the Commissioner under Sub-
section (1) or Sub-section (2) of Section 69 and relating to any of the matters specified in Section 63, Section 64 of Section 67; or u/s 63, Section
64, or Section 67 read with Sub-section (1)(a), (2) or (4)(a) of Section 22 of u/s 65, within ninety days from the date of receipt of the order of the
Commissioner, for enforcing this statutory right, no notice u/s 80, CPC Code is necessary.
18. In Kandar v. The Commissioner. H.R. and C.E. ILR (1980) Mad. 213 Sethuraman J., has held that the absence of a notice u/s 80, CPC is
not fatal to the maintainability of a suit u/s 70 of the Act. The learned Judge has observed that:
It may be seen that Section 70 itself does not provide for any notice preceding the suit. I considered this question in Appeal No. 207 of 1974 P.
Kalyanasundaram and Ors. v. Commissioner, H.R. and C.E. (Admn.), Madras-34 and Ors., dated 20th January, 1978, and after discussing the
case cited it was held that the non-issue of notice under section, 80, CPC Code, 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. ILR [1971] Mad. 704, 707 was followed. In that
case there was an application u/s 57(b) of Madras Act XIV 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 success. They, thereafter, filed an appeal to the Commissioner,
but without success. They, then, filed a suit in this City Civil Court, Madras, for canceling 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 u/s 80, CPC 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 u/s 80, CPC Code, is required in respect of a statutory suit to set aside or cancel the order of the Commissioner under the provisions
of the Act:
19. The learned Judge has considered the ratio in T.K. Santhanagopala Chettiar and Others Vs. Thimmi M. Seetharama Chettiar and Others, ,
T.K. Santhanagopala Chettiar and Others Vs. Thimmi M. Seetharama Chettiar and Others, and State of Maharashtra and Another Vs. Shri
Chander Kant, .
20. Nevertheless, the learned Counsel for the Respondents relies on the same decision for the contention that a notice u/s 80, CPC is necessary
and that, therefore, the Plaintiffs are entitled to claim the benefits of Section 15(2) of the Limitation Act.
21. In Lakshmana v. Commissioner for H.R. and C.E. [1971] Mad. 704, 707 Sadasivam J., speaking for the Beach 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 institutions 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 u/s 30, CPC Code, is required in respect of a statutory suit to set aside of canceling the order of the Commissioner under the provisions
of the Act.
In that case, the Appellants filed an application u/s 57(b) of the Madras Hindu Religious and Charitable Endowments Act XIX of 1951, before the
Deputy Commissioner claiming to be the hereditary trustees of Sri Balasubramaniaswamy Temple, Narayananaicken street, 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
hereditray 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 Kshatriya Kulam. Thereafter, the suit was filed in the City Civil Court, Madras, not only for setting aside or canceling 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
Somavamsam Bhuja Kshatriya 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 XXI of 1959 inclusive of the provisions relating to the appointment of trustees so as to interfere with the lights of the
said religious denomination, thus, it would be seen that it was not a mere statutory suit for setting aside the order of the Commissioner, but reliefs
which are beyond the scope of a suit u/s 70 of the Act were also sought, and, therefore, the learned Judge held that even of a statutory suit could
be combined with a suit in which the applicability of the Act to the suit temple is challenged, he requirements of a valid institution of the later suit
should be complied with. In other words, a notice u/s 80, CPC in respect of the later suit is mandatory.
22. The learned Counsel for the Respondents again relies on a decision of Ismail J. (as he then was) in T.K. Santhanagopala Chettiar and Others
Vs. Thimmi M. Seetharama Chettiar and Others, 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 Provisions contained in Section 80, CPC 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. Judges
Kumbakonam, reversing the judgment of the learned District Munsif, Kumbakonam in Original Suit No. 359 of 1963, instituted for a declaration.
that Sri Rajagopalaswami Temple see out in Schedule A and its properties set out in Schedules B and C exclusively belonged to Pettusaluvan
Community, residents of Sclamaligai village, for a direction to Defendants 1 to 3 to put the Plaintiffs in possession of the same and for a direction to
defendents 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 worshiping 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 Pattusalavar community people were the
hereditary ade(sic)nakar(sic)ars 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 Endoements
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 u/s 70 of the Act. The contention of the Plaintiffs in that suit was (sic)a the
Act itself was not applicable to the temple in question and that the Deputy Commissioner had no jurisdiction u/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 u/s 70 of the Act, notice u/s 80, CPC was held to be
necessary. On appeal from be judgment of Ismail J. (as he then was), a Bench of this Court is T.K. Santhanagopala Chettiar and Others Vs.
Thimmi M. Seetharama Chettiar and Others, 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 caused under the provisions of the Act. u/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 Article 26 of the
Constitution is certainly not within this jurisdiction. That is a question which has necessarily to be decided by the civil Court.
The suit is that case was for such a declaration, and not a statutory suit u/s 70 of the Act, and, therefore, the Bench observed that:
The learned Judge had held that notice u/s 80 of the Code of Civil Procedure, 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 should necessarily fail as against these two Defendants.
This distinction between a statutory suit u/s 70 of the Act and a 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 u/s 70 of the Act
which gives a statutory right to challenge the order of the Commissioner, no notice u/s 80, CPC is completed and that, therefore, the notice issued
by the Plaintiffs u/s 80, CPC was a superfluity, and the Plaintiffs cannot rely on the same to extend the period of limitation.
23. The learned Counsel for the Respondents, however, relies on a decision of the Supreme Court in State of Maharashtra and Another Vs. Shri
Chander Kant, in support of his contention that even for a statutory suit notice u/s 80, CPC is necessary. In that case, it was held that at page:
The provisions contained in Section 8 of the (Madhya Pradesh Public Trusts) Act indicate that the suit contemplated there is against the Public
Officer in his official capacity within the meaning of Section 80 of the Code of Civil Procedure. The provisions of Section 80 of the Code of CPC
are express, explicit and mandatory.
See Bhagchand Dagadusa v. Secretary of State for India in Council 54 I.A. 338.
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 the suit u/s 8 of the Act cannot be regarded as a suit against the Government.
The Full Bench held that neither the Government not 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 Section 4
comes into force in any area or from the date on which a 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 inquiry as contemplated in
Section 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 Section 80, CPC 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 u/s 80, CPC 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 in its own application. No notice need be given to the state
Government in the instant case as contemplated under Madhya Pradesh Public Trusts Act. These facts distinguish that case, from the instant case.
24. With respect, I agree with the observation of Sethuraman J., in Kandar v. The Commissioner, H.R. and C.E. Madras ILR [1980] Mad. 213
that a suit u/s 70 of the Act cannot be equated to a suit against a public officer for which a notice u/s 80, CPC is contemplated. Therefore, the
Plaintiffs were not bound to issue a notice to the Defendant. As a notice u/s 80, CPC was not necessary, the Plaintiffs cannot rely on Section 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 u/s 80, CPC Code. This
suit ought to have been filed on 20th May, 1975. Therefore, the suit is barred by limitation.
25. Hence, this appeal is allowed, the judgment and decree of the learned Subordinate Judge are set aside, and Original No. 37 of 1975 on the file
of the Sub-Court, Sivaganga, is dismissed. There will be on order as to costs.
