JUDGMENT <NAME>, C.J.

1. These are appeals from a decree of the Subordinate Judge of Trichinopoly framing a scheme for the management of the temples at Srirangam. The case is one of great importance, because this is admittedly the first time a scheme has been framed under what is now Section 92 of the Civil Procedure Code for a temple subject to <ORG> under Act XX of 1863. In <ORG> all parties appear to have been willing that a scheme should be framed, but on appeal objection has been taken on behalf of the <ORG> to the scheme approved by the <ORG>, on the ground that it is not open to the <ORG> to frame a scheme of this sort interfering with the statutory management of the Temple <ORG>. It will be convenient in the first place to consider the position of the Temple <ORG> under the Statute, more especially as the Subordinate Judge in approving of the introduction of a new governing body known as <ORG> has been influenced by the fact that in his view the powers of the Temple <ORG> are of a very restricted character. Prior to Regulation VII of 1817, the British <ORG> and the Hindu Rulers before them had exercised powers of a visitatorial character over such foundations. <CITATION> 1I.A. 209 at p. 232. Under that Regulation, which was framed for the due appropriation of the rents and produce of lands granted for the support of Hindu temples, etc., certain statutory powers and duties were conferred upon <ORG>. Under Section 2 they were charged with a general superintendence of all endowments in land or money granted for the support of Hindu temples. Under Sections 3 and 5 a duty was imposed on them of seeing that the endowments are appropriated to the purposes for which they were granted and to the repairs of the buildings, and under Section 4 they were empowered to dispose of buildings which could not be repaired. Sections 7 to 11 provide for enquiries and reports to the <ORG> by its local agents. Sections 11 to 14 are important. Under Section 11 the local agents are to report to the <ORG> all vacancies in the office of trustees, managers or superintendents, whether these officers are hereditary or have been in the nomination of <ORG>, and in the latter case to recommend fit and proper persons for the approval and confirmation of the <ORG>. On the receipt of the report under Section 12, Section 13 requires the <ORG> either to appoint the persons so nominated or to make such other provision for the trust, management or superintendence as may seem to them right and fit with reference to the nature and conditions of the endowment" after obtaining any further information they may require. The <ORG> actively exercised all these powers until the year 1841 or 1842 when, in deference to strong objections which were taken to this course by certain persons in England, the <ORG> were ordered to withdraw as far as possible from the active management of Hindu temples. No alteration, however, was made at the time in their statutory powers and duties under the Regulation and it was not until the passing of Act XX of 1863 that the situation was regularised and the powers exercised by the <ORG> under the Regulation were transferred to Temple <ORG>s constituted under that Act in the case of temples in which the nomination of the trustee, manager or superintendent thereof at the time of the passing of this Act (1863) was vested in or subject to the confirmation of <ORG>. This is the effect of Section 3 and Sections 7 to 12 of the Act, Sections 4 to 6 dealing with cases in which the right of appointment was not vested in <ORG>. Section 13 imposes upon all trustees, managers and superintendents the duty of keeping accounts and empowers and requires the Temple <ORG>s to require the production of such accounts at least once a year. Lastly Sections 14 and 18 provide for the institution with the preliminary leave of the <ORG> of suits by persons interested against trustees, managers or superintendents or members of the Temple <ORG>s for any misfeasance, breach of trust or neglect of duty, and empower the <ORG>s to direct specific performance of any act and to award damages, and to remove the trustee, manager, or superintendent. These sections do not empower the <ORG> to frame a scheme for the management of the temple affairs, Karedla Vijayaraghava Perumalayya Naidu v. Vemavarapu Sitaramayya 26 M. 361 It was, in my opinion, clearly the intention of the <ORG> that the extensive powers conferred on <ORG> should be exercised thereafter by the Temple <ORG>s and I think the <ORG> should be very slow to construe the Act in such a manner as to impede the due exercise of these powers. I am, therefore, with great respect unable to agree with the decision in <CITATION> 7 Ind. Cas. 754; 34 M. 1; 8 M.L.T. 213; (1910) M.W.N. 608; 20 M.L.J. 814, which was cited as showing the necessity for a scheme and which decides, if 1 rightly understand it, that the powers of the <ORG> are suspended by the occurrence of a vacancy among its members. No authority is cited in judgments in support of this view and the decision has been dissented from in <CITATION> 12 Ind. Cas. 147; 39 C. 304 on the authority of an English case, <NAME> v. <NAME> 1 Dowl. & R. 259, which is directly in point. This also appears to me not to be in accordance with the principles laid down in <NAME> 22 M. 481; 9 M.L.J. 203 as to the <ORG> being governed by the rules applicable to corporations. The term <ORG>," said <NAME>, C.B., in <NAME> v. <NAME> 15 M. & W. 517 atp. 526; 3 Railw. Cas. 351; 16 L.J. Ex. 25; 10 Jur. 1097; 153 E.R. 954; 71 R.R. 751, 'means an individual or body to which others have delegated a particular duty," and I can see no reason why the remaining members constituting a majority should not be able to act during a vacancy. In the absence of any decisive authority the other way the argument ab inconvenienti is, in my opinion, sufficient to show that such must have been the intention of the <ORG>.

2. Further, with reference to the numerous decisions of this Court relating to the powers of the <ORG> to which Mr. <NAME> has called our attention in the course of his exhaustive argument as showing the necessity for a scheme, I cannot help saying with great respect that some of those decisions appear to me to fetter the <ORG> unduly, and I think that the able judgment of <NAME>, J., in <CITATION> 21 M. 179 with which <NAME>, C.J., agreed in the main and the recent decisions in <CITATION> 10 Ind. Cas.301; 34 M. 375; (1911) 1 M.W.N. 304; 21 M.L.J. 305 and <CITATION> 25 Ind. Cas. 965; 28 M.L.J. 209 are more in conformity with the terms of the Act and the intention of the <ORG>.

3. It is necessary to consider one of these decisions more particularly, as the contention has been raised for the 1st plaintiff that <ORG> has no power over <ORG>, because at the coming into force of the Act of 1863, one of the trustees under an arrangement made by <ORG> had become hereditary as held in <CITATION> 29 M. 534; 16 M.L.J. 435; 1 M.L.T. 127. That one trusteeship is hereditary is no doubt res judicata as between the <ORG> and the hereditary trustee by reason of that decision. Mr. <NAME> who appeared for the <ORG> stated, that there is evidence to show that the <ORG> never appointed any hereditary trustee and alleged that they had no power to do so in the exercise of the statutory authority under Section 13 of the Regulation. This was apparently the opinion of Sir <NAME> in <CITATION> 7 M. 499 at p. 509, though the opposite view was taken in <NAME> v. <NAME> 7 M.H.C.R. 77 and followed in <CITATION> 29 M. 534; 16 M.L.J. 435; 1 M.L.T. 127. As to this I will merely observe that <CITATION> 17 M. 212; 4 M.L.J. 48 is no authority for the proposition for which it is cited in <CITATION> 29 M. 534; 16 M.L.J. 435; 1 M.L.T. 127 and <CITATION> 7 Ind. Cas. 754; 34 M. 1; 8 M.L.T. 213; (1910) M.W.N. 608; 20 M.L.J. 814 that where the <ORG> made one of the trusteeships hereditary, it deprived itself of authority to appoint additional trustees. The immediate question hero is whether this Devasthanam is subject to <ORG>. It was not questioned in <CITATION> 21 M. 179 and <CITATION> 29 M. 534; 16 M.L.J. 435; 1 M.L.T. 127, that it is so subject, and it is admitted by the 1st plaintiff in his plaint in the present case. Further, it is, I think, clear that Sections 3 and 4 of the Act of 1863 were introduced to cover all classes of cases, and even assuming that in 1863 one of the trustees was hereditary and the other two were nominated by <ORG>, I think the case comes under Clause 3 rather than under Clause 4. In any other view I should feel bound to consider whether the decision in <CITATION> 29 M. 534; 16 M.L.J. 435; 1 M.L.T. 127 can be supported.

4. This objection being overruled, we have next to consider whether it is competent and desirable that the scheme framed by the Subordinate Judge should be approved with or without modifications. Now as to this I take it the <ORG> cannot interfere with the statutory powers conferred upon the members of the <ORG> so as to deprive them of their statutory functions [see Attorney-General v. Governors of <ORG> 2 Ves. (Jun.) 42, 30 E.R. 514:4 Bro. C.C. 165], although following the practice of the <ORG> of Chancery it might frame a scheme conditional on legislative sanction being obtained for it, as to which see In re <ORG>; 41 E.R. 1290; 1 H. & Tw. 401; 19 L.J. Ch. 287; 14 Jur. 259; 84 R.R. 75. The decision in Attorney-General v. <ORG> 12 Beav. 113; 50 E.R. 1003; 85 R.R. 40 which appeared to go further was disapproved in Attorney-General v. <NAME> (1859)) 27 Beav. 168; 54 E.R. 65; 122 R.R. 357. In my opinion, the most helpful authority cited before us was the judgment of <NAME>, J., in Attorney-General v. <ORG> (1896) 1 Ch. 879 at p. 888; 65 L.J. Ch. 646; 74 L.T. 96; 44 W.R. 379; 60 J.P. 246. The learned Judge observed: "I prefer to state my own opinion broadly. I hold that it is beyond the jurisdiction of the <ORG> to sanction the Attorney-General's scheme in the face of the opposition of the existing governing body. Their title is founded on Royal Charter, and is established by Act of Parliament. To whatever lengths the <ORG> may have gone, it has never assumed legislative authority; it has never by a stroke of the pen at one and the same time revoked a Royal Charter and repealed an Act of Parliament. It has never ousted from its rights of administering the charitable trusts such a body as the present governors against their will, and that, too, in a case where no breach of trust is charged. There is no authority in the books for any such proposition. Yet such is the proposition which underlies the Attorney-General's scheme. I consider that I am not at liberty to deprive the existing governing body of their right of control over the income of the funds vested in them, either permanently, as proposed by the scheme, or temporarily, as suggested by the Attorney-General in his reply. In a word, I cannot, under guise of executing the trusts cypres, upset the constitution of the present governing body, or, by transferring their powers and duties of admininistering the trusts to another body, reduce them to the position of being bare trustees of the funds vested in them. To establish such a scheme as that submitted by the Attorney General, nothing less than Act of Parliament will suffice."

5. That case, however, does not go so far as to decide that the <ORG> cannot frame any scheme at all for a charity under statutory management on the contrary, although as observed in the judgment no case of breach of trust or maladministration of any kind was suggested by the Attorney-General against the governing body, and there was no case of failure of the trusts or of the charitable objects of the endowments, the learned Judge, whilst rejecting the Attorney-General's scheme, still held himself at liberty to sanction the scheme submitted by the governors themselves proposing certain alterations to meet the altered circumstances of the time. Following that decision, I think we are entitled in the present case to come to the assistance of the <ORG> and to introduce certain changes which, under the decisions it is not now open to the <ORG> to introduce and which are admitted by them to be desirable. Further than this I do not feel justified in going.

6. The result is that the management will remain in the trustees subject to the statutory superintendence of <ORG> and the proposed <ORG> must go. As regards the number of the trustees we think we may enable the <ORG> to do that which under the decision in <CITATION> 29 M. 534; 16 M.L.J. 435; 1 M.L.T. 127 they can no longer do of themselves viz., to appoint two additional trustees, but the nomination must be in the <ORG> pursuant to the Statute. We may also provide that in future trustees shall hold office for 5 years. This, it is admitted, is one of the most urgent reforms, and the competency of the <ORG> to introduce it of themselves has been questioned. The proposed treasurer must also be disallowed as an independent officer but we think it desirable that a paid officer of the trustees should be appointed to perform duties similar to those assigned to the treasurer but under the trustees. As regards finance we think it should be the duty of the trustees to prepare a budget annually and submit it to the <ORG> under whose superintendence they are. We also think an audit should be insisted on. It has been arranged that the 1st plaintiff should submit a revised scheme or schemes on these lines in one month. There will be no order as to costs in this <ORG>.

<NAME>, J.

7. I agree with my Lord. If 1 travel over the same ground in my judgment, it is because the points raised in appeal are of far-reaching consequences.

8. Two questions have been raised affecting, to a great extent, the jurisdiction of <ORG>. Mr. <NAME> on behalf of the <ORG> broadly contended at the outset that the scheme sanctioned by the Subordinate Judge was within the powers of the Trichinopoly Temple <ORG> and that consequently it is ultra vires of <ORG> to frame a scheme. A somewhat modified contention was advanced at a later stage, that all the provisions in the scheme which interfered with the statutory powers of the <ORG> should be deleted. Mr. <NAME> was prepared to support the <ORG>'s contentions only to this extent. On the other hand Mr. <NAME> on behalf of <ORG> argued that the Trichinopoly Temple <ORG> had no jurisdiction over <ORG>, as at the time of the passing of Act XX of 1863, there was a hereditary trustee. This contention, if accepted, would leave the <ORG> unfettered regarding the settlement of a scheme. It is necessary to give a ruling on these preliminary points before considering the merits of the case.

9. I shall first deal with Mr. <NAME>'s contention. I agree with him that the expression the nomination of the trustee, manager or superintendent thereof" in Section 3 includes the entire body of trustees, managers or superintendents [see <NAME> v. <NAME> 4 T.R. 516; 100 E.R. 1150]. But it is doubtful whether it was competent to <ORG> under Regulation VII of 1817 to divest themselves of all responsibility for management by handing over the affairs of a Devasthanam to hereditary trustees. The language of Section 13 of the Regulation, which confers general powers to adopt measures for carrying out the objects of the trust, must be restricted to the cases for which a report is to be called for under the preceding sections. However that may be, I feel no doubt that the <ORG> has jurisdiction over this temple. There have been numerous suits to which the <ORG> and the trustees were parties in which it was held that the temple was under the jurisdiction of the Temple <ORG>, e, a., <CITATION> 21 M. 179, <CITATION> 29 M. 534; 16 M.L.J. 435; 1 M.L.T. 127, etc. These decisions are binding on the <ORG> and the trustees. The plaintiffs in the present case admit that the temple fall's under Section 3 of Act XX of 1863. They are not entitled to recede from that position. Moreover, the documents to which our attention was drawn show that only the right to select a trustee was given to the family of the Sthalathars, and that the selection was subject to the approval of <ORG>. It cannot, therefore, be contended that <ORG> created a hereditary trustee over whose appointment they had no control. If this question had been raised in proper time, evidence might have been forthcoming to show that the term hereditary has been loosely applied in this case. I agree with the learned Chief Justice that this temple comes under Section 3 of Act XX of 1863 and that the <ORG> has jurisdiction over it.

10. The question whether the aid of <ORG> can be invoked to frame a scheme when a statutory body like <ORG> has the right of superintendence is a far more difficult one.

11. There is no reliable data regarding the exercise of supervision by the ancient kings of the land over temples. The text of Narada which says "********" 'that a king can reduce to slavery a sonyasin who is guilty of incontinence," seems to suggest that over religious bodies and institutions, the king had a general power of supervision. Beyond this cryptical saying, there seems to be no authority regarding the jurisdiction of the ancient sovereigns over Hindu temples. When and at what stage the ancient sovereigns exercised superintendence over religious institutions, it is not necessary to consider. <CITATION> 1I.A. 209 at p. 232 <ORG> say that such jurisdiction existed in ancient times. Consequently they very early came to the conclusion that the king as parens patrice should protect the religious institutions from malversation in the same way that he looked after the rights of his lay subjects. Lord <NAME> in Mayor of Lyons v. <ORG> at p. 296; 1 Sar. P.C.J. 107. 18 E.R. 66 at p. 112; 1 Moo. P.C.175; 3 State Tr. (N. s.) 647,43 R.R. 27 says: "The jurisdiction of the <ORG>, moreover, extends over all British subjects residing within the limits of the Charter, whether in the British or native dominions, and this affords facilities for the execution of the charity under the <ORG>'s superintendence, which could not exist in any of the cases cited." In Attorney General v. <NAME> 4 M.I.A. 190; 6 Moo. P.C. 12; 11 Jur. 137; Sar. P.C.J. 325; 18 E.R. 671, Lord <NAME> pointed, out that the Supreme <ORG> had an equitable jurisdiction similar to and corresponding with the equitable jurisdiction exercised by the <ORG> of Chancery in England over charities. There is no doubt that the Mofussil <ORG>s had similar powers. In <NAME> v. <NAME> 13 M.I.A. 270; 13 W.R. (P.C.) 18; 2 Suth. P.C.J. 300; 2 Sar P.C.J. 528; 20 E.R. 552, which was an appeal from a Mofussil <ORG>, their Lordships of <ORG> proceeded on the footing that Civil <ORG>s had jurisdiction to see that temple funds were properly applied It is clear from the Charter granted to <ORG> that they were authorised "to judge all persons belonging to the said Governor and <ORG> or that should live under them in all causes, whether civil or criminal, according to the laws of the kingdom and to execute justice accordingly" (Charter of Charles II in 1661). This authority was confirmed by the subsequent Charters. Their history is fully set out in Cowell's <ORG>s and Legislative authorities in India, and in <NAME>'s Government of India. I do not propose to attempt a summary of the various Regulations here. Their purport is best expressed in Section 16(c) of the Madras Civil <ORG>s Act: "In case where no specific rule exists, the <ORG>s shall act according to justice, equity' and good conscience." This clause only embodies the principle which has been recognised by <ORG> from the beginning of its administration of civil and criminal justice in India. It is not necessary to cite authorities for the position that the rule of equity and justice had to be found in the decisions of the English <ORG>s. My conclusion is that the Mofussil <ORG>s in India were <ORG>s of both law and equity and that they exercised jurisdiction over religious and charitable institutions in the same way as <ORG>s of Chancery did in England.

12. I shall next consider whether <ORG> in England would have had jurisdiction to frame a scheme like the one we are now considering, with special reference to the fact that <ORG> as statutory bodies had certain powers delegated to them. It was pointed out in <NAME> v. Perianayamgum Pillai 1I.A. 209 at p. 232 that the powers delegated to the <ORG> were analogous to the powers conferred on visitors in England. The nature of the powers possessed by visitors is not easily ascertainable. In <NAME> v. <NAME> (1788) 2 T.R. 346 at p. 352; 100 E.R. 186 <NAME>, C.J., thus describes the functions of a visitor: An authority to inspect the actions and regulate the behaviour of the members that partake of the charity, to prevent all perverting of the charity, or to compose differences." In Tudor on Charities, the visitatorial tribunal is described as a domestic forum, <ORG>." It was pointed out in <NAME> v. <NAME> (1750) 1 <NAME>. (Senior) 462; 27 E.R. 1144 that the visitor's powers are circumscribed by those given him by the Statute. He should not exceed or depart from them.

13. Having ascertained to some extent the nature of the duties cast on the visitor, I shall now consider whether the contention that the <ORG> are powerless when a statutory body is created whose powers are analogous to those of the visitor in England is well founded. The decision in Attorney General v. Governors of <ORG> (1896) 1 Ch. 879 at p. 888; 65 L.J. Ch. 646; 74 L.T. 96; 44 W.R. 379; 60 J.P. 246 was strongly relied on by the appellant. The observations of <NAME>, J., do not deny jurisdiction to Civil <ORG>, although they fetter its exercise a great deal. The language of the Charter and of the Act of Parliament commented on in that case are not before us. Moreover, certain facts are mentioned in the judgment which rendered it inequitable for the <ORG> to interfere. His Lordship says: "To whatever lengths the <ORG> may have gone, it has never assumed legislative authority." From the subsequent reference to the provisions of the Attorney-General's scheme, it is apparent that the learned Judge held on the merits that that scheme should not be accepted. I do not think this case is authority for denying jurisdiction to the <ORG> altogether. In re Endowed Schools Act 1869, In re <ORG> (1889) 15A.C. 172 does not carry the matter any further. <NAME> v. Lord Provost, of Edinburgh L.R. 1 Scotch Appeals 417 only lays down that the purposes of the trust cannot be altered by the <ORG>. In Attorney-General v. <ORG> (1857) 23 Beav. 350; 26 L.J. Ch. 497; 3 Jur. (N.S.) 325; 5 W.R. 395; 53 E.R. 138; 113 R.R. 169 the Master of the Rolls ruled that where the founder had conferred specific powers on a visitor regarding internal management, the <ORG> should not interfere with such powers. In Attorney-General v. <NAME> 13 Vesey, (Junior) 519; 33 E.R. 388 the Lord Chancellor says: "I have long been perfectly satisfied that this <ORG> has jurisdiction." The above cases do not sustain the proposition contended for by the appellant that the <ORG> is deprived of jurisdiction by reason of the existence of a visitor or of a statutory body to control the affairs of a trust.

14. On the other hand, it seems well established that the power is in the <ORG> to administer a charitable or religious trust provided it does not unduly interfere with the visitor or the statutory body. In <NAME> v. <NAME>, <NAME> v. <NAME> (1901) 1 Ch. 894; 70 L.J. Ch. 571; 84 L.T. 796; 49 W.R. 460; 65 J.P. 470 <NAME>, J., quotes with approval <NAME>, J.'s classification of liabilities relating to trusts: "There is that class where there is a liability existing at Common Law, and which is only re-enacted by the Statute with a special form of remedy; there, unless the Statute contains words necessarily excluding the Common Law remedy, the plaintiff has his election of proceeding either under the Statute or at Common Law. Then there is a second class, which consists of those cases in which a Statute has created a liability, but has given no special remedy for it; there the party may adopt an action of debt or other remedy at Common Law to enforce it. The third class is where the Statute creates a liability not existing at Common Law, and gives also a particular remedy for enforcing it." In my opinion, <ORG> come under the first of these classes. I have already referred to the right possessed by the <ORG> over all religious institutions. The general right possessed by the subject to ask the <ORG>'s assistance to set right abuses and to have a scheme framed independent of the Statute has been recognised in numerous decisions. <CITATION> 5 M. 383, Giyana Sambandha Pandara Sannadhi v. <NAME> 10 M. 375, <CITATION> 14 M. 186; 1 M.L.J. 95, <CITATION> 17 M. 462 at p. 466, <CITATION> 23 M. 28; 7 M.L.J. 281 and <NAME> v. <NAME>, <NAME> 3 B. 27. Therefore the powers of the <ORG> are not exclusive. The observations of <NAME>, J., are very apposite to this class of cases: "Now, if I find that the Statute enacts, either by way of new creation or by way of re-statement of an ancient right, a right of property, that at once gives rise to the jurisdiction of the <ORG> to protect that right. If the Act goes on to provide a particular remedy for the infringement of that right of property so created, that does not exclude the jurisdiction of this <ORG> to protect the right of property, unless the Act in terms says so." in Attorney-General v. <ORG> 12 Beav. 113; 50 E.R. 1003; 85 R.R. 40 Lord <NAME>, the Master of the Rolls, had to consider the rights of a governor of a hospital. His Lordship held that greater powers were given to him than was warranted by the original Charter. Then he proceeds: "Even if it should appear to be otherwise, and that this was within the power, nevertheless, if in the course of the 200 or 300 years, by acting upon the power, it has turned out, and is shown by experience, to be prejudicial to the objects of the charity, to the extent of giving an equal benefit to persons who are not objects of the charity--namely, to the lessees, for it comes to that--then I think that this <ORG> could not avoid saying, that the circumstances were so changed that the interests of the charity and of the hospital required a new mode of conducting the business and affairs of the charity." These observations apply mutatis mutandis to the present case. If after 50 years of administration by the. <ORG>, the <ORG> finds that circumstances have taken place which demand a remodelling of the machinery originally employed, I do not think we are powerless simply because a statutory body had certain powers conferred on it suited to the exigencies of the situation as it then existed.

15. In Attorney-General v. <ORG> 17 Beav. 435; 22 L.J. Ch. 793; 1 W.R. 525; 51 E.R. 1103; 99 R.R. 228 Sir <NAME> says. "The only remaining point, then, on this part of the case is, whether the jurisdiction of this <ORG> is taken away by reason of the visitorship of the Bishop of <NAME>. If this were the law, it would be very unfortunate, for it does not require the history of this case to teach us that the visitorship, vested in any one, whether a corporation sole or aggregate, or the heir of the founder, is a mere nominal office, the duties and functions of which are rarely if ever, spontaneously performed. But the law is not so. Where there is a clear and distinct trust, this <ORG> administers and enforces it as much where there is a visitor as where there is none. This is clear both on principle and authority. The visitor has a Common Law office and Common Law duties to perform, and does not superintend the performance of the trust which belong to the various officers, which he may take care to see are properly kept up and appointed. <NAME> v. <NAME> (1750) 1 <NAME>. (Senior) 462; 27 E.R. 1144, the case of <ORG>, Ex parte 2 Ves. & Bev. 184; 35 E.R. 270); 13 R.R. 43 and several other cases expressly establish the authority of this <ORG> in cases of trusts, and the duty of this <ORG> to see that they are properly performed, notwithstanding that there may be a special or a general visitor." I have made this lengthy extract because it seems to me that in India under the superintendence of <ORG> we have reached a position where "the duties and functions are rarely if ever spontaneously performed." The written statement of the <ORG> in this case shows how powerless the <ORG> were in carrying out their duties, and how little they did or endeavoured to do. It would be disastrous in this country if <ORG>s were to refuse to intervene on the ground that a statutory body has been created to exercise supervision over the trusts.

16. At the same time, I concede that in formulating, a scheme, the <ORG> should not unduly interfere with the powers entrusted to <ORG>s. The cases quoted by the learned <NAME> for the <ORG> establish that position. In re <ORG> 1 Mac. & G. 324; 41 E.R. 1290; 1 H. & Tw. 401; 19 L.J. Ch. 287; 14 Jur. 259; 84 R.R. 75 Attorney General v. <NAME> 7 L.J. Ch. 51; 1 Jur. (N.S.) 812; 2 Mylne & Carig. 613; 40 E.R. 773; 45 R.R. 142, Attorney-General v. Mayor of Dublin 1 Blig. (N.S.) 312; 4 E.R. 888; 30 R.R. 43 and Attorney General v. Governors of <ORG>, 30 E.R. 514:4 Bro. C.C. 165. The learned <NAME> for the <ORG> did not seriously contest this position. His argument was directed to showing that <ORG> and their successor, the <ORG>, had only certain limited powers, and that neither the Regulation nor the Act took away the plenary jurisdiction possessed by the <ORG>. I shall now very briefly examine the provisions of these two Statutes mainly with a view to see how much of the scheme of the Subordinate Judge should be accepted.

17. The preamble to the Regulation refers to the ground for believing that the produce of the endowments "is in many instances appropriated contrary to the intentions of the donors," and speaks of the duty of the <ORG> to see to its proper application. The duty, I take it, is that of the parens patriae. In Duke of Beaufort v. <NAME> 1 Peere Williams 702; 24 E.R. 579 Lord <NAME>, Lord Chancellor, says that the protection of children was assumed by <ORG> in analogy of its powers over trusts. Consequently, the care of trusts seems to have been regarded as the first duty of the king. It was, therefore, very early held in Madras that the remedies under the Regulation were not exhaustive but only supplementary of the ordinary remedies. <NAME> v. <NAME> 7 M.H.C.R. 117. See also <NAME> v. Vangala Shangaranat Josser S.D.A. of 1858 p. 39. I do not think that the view to the contrary held in <CITATION> 16 Ind. Cas. 908; 40 C. 328; 17 C.L.J. 183 is consistent with the history of the temple legislation in this country. I shall now deal with the other sections of the Regulation. Section 2 is the most important of them. The right of general superintendence is wide enough to include the power to appoint additional trustees. I am in agreement with the decision in <CITATION> 25 Ind. Cas. 965; 28 M.L.J. 209. Even in <CITATION> 29 M. 534; 16 M.L.J. 435; 1 M.L.T. 127 Sir <NAME>, J., says that such appointments can be made for good and sufficient cause. I infer the power to appoint additional trustees from Sections 12 and 13 read with Section 2 . It is not necessary in this case to consider the exact nature of the rights conferred on the <ORG>s by Section 2 : whatever may be involved in the term superintendence, I am of opinion that some of the decisions of this Court to which I shall refer later on have not been shown to be wrong in placing a limit on its import. Further, the right of superintendence must be limited to the exercise of the powers conferred on the <ORG> or on the <ORG> whose jurisdiction is analogous to that of the visitor in England. Sections 3 to 10 do not call for special notice. Sections 11 to 13 are important. Section 11 requires local agents to report to the <ORG> vacancies and casualties, the names of the persons claiming to be trustees and the mode in which previous appointments were made. Section 12 deals with cases in which the <ORG> had the exclusive power of appointment and requires the local agent to suggest names. The 13th section deals with the duties of the <ORG> on the receipt of such reports. It seems to me that the clause or made such other provision for the trust, etc." should be confined to the appointment contemplated in Sections 11 and 12 . As I said before, they do not seem to warrant the construction that the <ORG> can appoint hereditary trustees by virtue of this clause so as to deprive themselves of all control over them. Section 14 gives a right of suit to persons aggrieved by the exercise of the powers vested in the <ORG>.

18. Coming to the Act, it must be premised that it was not the intention of the <ORG> to give larger powers to the <ORG> than was possessed by the <ORG>. Sections 3 and 7 entrust to the care of the <ORG>s all the institutions which were under the control of the <ORG> of Revenue. A feeble attempt was made to show that the <ORG> could hold possession of the trust property. Section 12 which refers to the transfer of the possession of properties does not provide for the vesting of the properties in the <ORG>. On the other hand, Sections 11 and 13 which speak of the duties of the trustees to keep accounts make it clear that the <ORG> was not to hold properties.

19. The course of decisions on this subject is well established in this Presidency. Speaking for myself. I feel no hesitation in saying respectfully that they are perfectly sound. See <NAME> v. Shri <NAME> 7 M.H.C.R. 77, <NAME> v. <NAME> 12 M. 366, <CITATION> 17 M. 143, <CITATION> 21 M. 179, <NAME> v. Emperor 26 M. 243; 2 Weir. 463, Chairman, Municipal Council of Rajahmundry v. <NAME> 31 M. 111; 3 M.L.T. 241 and <CITATION> 14 Ind. Cas. 520; 23 M.L.J. 278; 12 M.L.T. 165. It has also been held that the <ORG> should not concern itself with the internal management of the institution. <CITATION> 22 M. 261; 8 M.L.J. 196 and <CITATION> 15 M.L.J. 185. It stands to reason that when there is a trustee who is responsible for the management of the properties and for their application, his control over the servants of the establishment should not be interfered with by the <ORG> The very limited power as to accounts given by the second clause of Section 13 to the <ORG> bears out this position. It is doubtful whether the decisions which lay down that no accounts should be called for from hereditary trustees are right. See <NAME> v. <NAME> 5 M.H.C.R. 48, <CITATION> 2 M. 197. Section 13 , Clause 2, refers to all trustees whether hereditary or otherwise. Section 14 has been much debated during the argument. It is a limited remedy that is given by this section to the public. It only empowers the <ORG> to direct the specific performance of duties which have been neglected. Such duties have also been specified. To my mind, the right of suit under the Act has been purposely restricted because the general right of the subject under the Code of Civil Procedure was not intended to be interfered with. The remedies are cumulative and not exhaustive. See <NAME> v. <NAME> 20 Ind. Cas. 515; 37 M. 184; 14 M.L.T. 44; 24 M.L.J. 697. The above examination of the sections of the Regulation and of the Act shows that the power of settling a scheme is not within the competence of the <ORG>. It is only by virtue of the Section 92 of the Code that this remedy can be invoked. In considering the details of the scheme Mr. <NAME> contended that as the body of the trustees will be functus officio if one member of it dies, there should be <ORG> to avoid an interregnum. <CITATION> 7 Ind. Cas. 754; 34 M. 1; 8 M.L.T. 213; (1910) M.W.N. 608; 20 M.L.J. 814 no doubt lays down that the death or removal of one of the members incapacitates the others from carrying, on the duties of the <ORG>, With the greatest deference, I am unable to accept this conclusion. The decision in Doe v. Godwin 1 Dowl. & R. 259 quoted in <CITATION> 12 Ind. Cas. 147; 39 C. 304 was apparently not brought to the notice of the learned Judges who decided <CITATION> 7 Ind. Cas. 754; 34 M. 1; 8 M.L.T. 213; (1910) M.W.N. 608; 20 M.L.J. 814. In my opinion the statutory body does not become extinct by reason of changes in its constitution.

20. As in my opinion, <ORG> alone has power to frame a scheme, and its jurisdiction is not taken away by the creation of <ORG>, I shall now proceed to examine the details of the scheme.

21. The first question for consideration is whether there should be <ORG>. In my view the powers intended to be conferred on <ORG> would unduly interfere with the rights of <ORG>. In the <NAME> scheme <ORG> was held necessary because the institution was not subject to the control of <ORG>. I am clearly of opinion that all provisions in the scheme relating to <ORG> should be omitted. For the same reason I am of opinion that no right of management should vest in the treasurer. This would be virtually adding to the number of trustees. I would, therefore, recast Clause 3 thus: "that the administration of the <ORG> shall vest in a Board of Trustees subject to the control of the <ORG>." Clauses 4 to 7 should be omitted in this view. A great deal of discussion centered on the question whether there should be a <ORG> trustee for this temple. It is true, as pointed out by Mr. <NAME>, that the <ORG> trustee whenever he had an opportunity endeavoured to subvert the uses of the institution by showing his partiality towards the usages of his own section. But ever since 1893 when the present <ORG> trustee was appointed, no serious complaints of such a nature have been made against him. Moreover, although the temple is mainly Thengalai, the archakas and paricharakas are <ORG>s and there are a large number of <ORG> mirasi offices in this Temple. In order that their interests might be safeguarded, there should be a <ORG> trustee. We see no reason for disagreeing with the Subordinate Judge in regard to this matter.

22. As a counterblast to the argument of Mr. <NAME>, Mr. <NAME> contended that as there is a hereditary. <ORG> trustee there was no necessity for the appointment of another <ORG> trustee. The history of this institution shows that the hereditary <ORG> trustee is not a person on whom the <ORG>s can rely to protect their interests. Undoubtedly the <ORG> rights are predominant in this temple; the Subordinate Judge was, therefore, right in providing for the appointment of an additional <NAME> galai trustee. No serious objection was taken by any of the contending parties for the inclusion in <ORG> and a Madhwa. It is to be hoped that their presence would tend to compose the differences between the two rival sects of Vaishnavas. We do not think that the provision for the appointment of the Sivite and Madhwa trustees by the <ORG> is necessary. The <ORG> should have the same power with regard to them as they have with reference to the other three trustees. As regards Clause 12, in the view that we have taken about the office of the treasurer and having regard to the representations that have been made regarding the funds of the <ORG> we are of opinion that instead of a treasurer, the trustees should be directed to appoint a cashier on a salary of Rs. 75-0-0 per mensem. Clause 4 which confers certain powers of supervision and control on the treasurer should be modified by investing <ORG> with those powers. Clause 16 should be modified in a similar manner. In addition to the provisions contained in the scheme we think it necessary that <ORG> should once a year prepare a balance sheet of the accounts of the. <ORG> and publish it for the public in the local <ORG>. The scheme should be modified as above indicated. As was done with reference to the <ORG> scheme, we think liberty should be given to any of the trustees or any member of the <ORG> or to the 1st plaintiff in this case to move the <ORG> for such alterations in the scheme as seem desirable in the light of the experience that may have been gained of its working.

23. These appeals and the memoranda of' objections by the 4th and 7th respondents in Appeal No. 328 of 1913 and by the 1st respondent in Appeal No. 355 of 1913 coming on for final hearing after the submission of the revised scheme by the 1st plaintiff, the <ORG> delivered the following Judgment

24. The scheme brought in by the 1st plaintiff is accepted by us subject to certain modifications. The scheme as finally approved:

General.

1. The Temple of Sri Ranganadhaswami at Srirangam and the minor temples and shrines attached thereto (inclusive of the temple of Sri Pundarikaksha Perumal at Tiruvallarai) and constituting with the said temple the Srirangam Devasthanam and all the properties, moveable and immoveable, which have been or may hereafter be dedicated to the said deity are and shall be vested in the Sri Ranganadhaswami deity.

2(a) The word "Court" in this scheme and in the rules that may be framed under this scheme shall mean <ORG> at Trichinopoly or such other Court of original civil jurisdiction of the lowest grade as may have jurisdiction under Section 92 of Act V of 1908.

2(b) The word "Committee" shall mean <ORG> formed under Act XX of 1863.

2(c) The expression "Sri Ranganadhaswami Devasthanam" hereinafter referred to as the Devasthanam, shall mean and include the shrine of Sri Ranganadhaswami at Srirangam and all the subordinate shrines attached thereto both in Srirangam and outside (inclusive of <ORG> at Teruvallarai).

3. The administration of the <ORG> shall vest in a Board of Trustees subject to the control and superintendence of the <ORG>.

<ORG>.

4. <ORG> shall consist of five members, viz.,

1. A hereditary <ORG> Trustee by rotation as at present,

2. A <NAME> Trustee,

3. A <NAME> Trustee,

4. A Sivite (including a Smartha),

5. A <NAME>, Trustees Nos. 2 to 5 shall be appointed by the <ORG>.

5(a) The term of the office of the Trustees appointed by <ORG> shall be five years but the said trustees shall be eligible for re-appointment.

5(b) The Stalathar Trustees shall hold office by rotation each for one year commencing with the 1st Chitrai.

6. No office-holder of the temple or a member of <ORG> shall be appointed by the <ORG> as a member of <ORG>.

7(a) No one shall be eligible to be appointed by the <ORG> as a Trustee of the <ORG>:

1. Who is under 25 years of age.

2. Who is an uncertificated bankrupt or an undischarged insolvent.

3. Who is suffering from unsoundness of mind, total blindness, total deafness, total dumbness, leprosy, or paralysis of such a nature which unfits him for work.

4. Who is a member of a joint family of which some other member is at the time a member of either the <ORG> or of <ORG> and

5. Who has been convicted of any offence involving moral turpitude, or against whom orders under Sections 109 , 110 , Criminal procedure Code, have been passed.

7(6) In the case of a rotation trustee who is a minor or who is subject to any of the disqualifications stated in 2, 3 and 5, the <ORG> may appoint from among the Stalathars a competent person in his place.

Cashier.

8. A cashier shall be appointed by <ORG> on a salary of Rs. 75 per mensem and shall furnish such security as may be determined by the rules framed hereunder.

9. <ORG> shall have powers of supervision and control over the cashier, but shall not suspend or dismiss him unless 4 out of the 5 Trustees are in favour of such a course. An appeal shall lie to the <ORG> from an order of dismissal, whose decision shall be final.

Budget.

10(a) <ORG> shall, three months prior to the commencement of the fasli, prepare and submit to the Committee a budget of the estimated receipts and expenditure for the ensuing year.

(b) The <ORG> shall, with such modification as it may deem necessary, pass the budget and send it back to <ORG> at least a month before the beginning of the fasli.

(c) If the Budget be not sent by <ORG> as aforesaid, the Committee may, after giving 14 days' notice to <ORG>, themselves frame and prepare the budget and send it to <ORG>.

(d) If the <ORG> fail to send the budget within the time fixed above, it shall be competent to <ORG> to act upon the budget sent by them until the <ORG> send the same approved.

(e) <ORG> shall have a permanent advance for urgent expenses of such amount as may be fixed in the rules to be framed in this scheme. But the expenditure which may be incurred by them shall not exceed the provision of the budget nor shall any extraordinary expenditure be incurred without the special sanction of the <ORG>.

Accounts and Audit.

11(a) The accounts shall be audited by an auditor appointed by the <ORG> upon such remuneration as may be fixed by the <ORG>, to be paid from the <ORG> funds. An abstract of the said accounts prepared and certified together with his report shall be sent to <ORG>, who shall submit the same to the <ORG> with their remarks, if any.

(b) It shall be the duty of <ORG> to give the auditor all facilities for carrying on the audit and to produce all accounts, vouchers and other papers required by him.

(c) It shall also be the duty of <ORG> to carry out the suggestions made by the auditor in his report and approved by the Committee.

(d) <ORG> shall prepare every year a balance sheet of the assets and liabilities of the <ORG> and publish it after verification by the auditor in the local <ORG> and in such other papers as they shall think fit.

(e) The accounts of each fasli, together with the report of the auditor and the abstract of the accounts and the balance sheet, shall be exhibited at the Devasthanam office from the 15th October to 15th January following and also at the time of the Mukkoti festival at the temple premises and all worshippers of the temple shall be entitled to inspect the same at all reasonable times.

12. All surplus income shall be invested for the benefit of the temple by <ORG> in accordance with the rules to be framed for the purpose.

13(a) No immoveable property of the temple shall be leased for more than three years without the sanction of the <ORG>.

(b) All leases and gales shall be by public auction or in such other manner as may be provided for in the rules.

14. No jewels or other moveable property shall be sold or otherwise alienated without the sanction of the <ORG>.

15. An inventory of the jewels and other properties shall be maintained by <ORG> and shall be verified by the auditor every year.

16. Rules consistent with this scheme shall be framed by <ORG> after notice to the <ORG> and <ORG> subject to the control of <ORG>:

1. for ensuring the proper receipts and custody of all offerings, income and funds;

2. for preventing misappropriation or ensuring the proper management of the temple funds and properties;

3. for the conduct of the business of the Trustees:

4. for the framing of the budget.

5. for the duties of the cashier and the amount and form of security to be given by him and by the other servants of the temple and the duties of the auditor.

6. for the investment of any surplus, and

7. for all such other matters as may be necessary for the proper management of the secular affairs of the <ORG>.

The rules so framed shall be liable to alteration in like manner.

17. Any of the plaintiffs or <ORG> or any member of <ORG> or of <ORG> may, by petition, apply to <ORG> for such further or other directions in the matter as may be necessary or for modification of this scheme or any of the provisions thereof.

25. The scheme shall come into operation at once.

26. Messrs. <NAME> and <NAME> who were appointed by the <ORG> shall hold office for five years from this date. Those that were appointed by the <ORG><ORG><ORG> shall cease to hold office from to<ORG>day.


PETITIONER: <NAME> Vs. RESPONDENT: MST. CHHOTAKA BIBI DATE OF JUDGMENT: 10/04/1970 BENCH: <NAME>, G.K. BENCH: <NAME>, G.K. SHELAT, J.M. CITATION: 1971 AIR 1374 1971 SCR (1) 253 CITATOR INFO : RF 1976 SC1503 (10) ACT: The U.P. <ORG> (Abolition of Letters Patent Appeals) Act, 1962 (U.P. Act 14 of 1962), s. 3-Special Appeal against judgment of Single Judge of <ORG> presented with deficient court-fees before coming into force U.P. Act 14 of 1962-Deficiency made up under order of <ORG> after coming into force of Act-Appeal whether to be treated as pending on day immediately preceding coming into force of Act within meaning of s. 3(2) <ORG> Fees Act, S. 4 and Code of Civil Procedures s. 149 should he read harmoniously. HEADNOTE: The U.P. <ORG> (Abolition of Letters Patent Appeals) Act came in-to force on November 13 1962. Section 3(1) of- the Act provided that no appeal arising from a suit or a proceeding instituted or commenced whether prior or subsequent to the enforcement of the Act, shall lie to the <ORG> from a judgment and order of one Judge of the <ORG>, made in exercise of appellate jurisdiction in respect of a decree or order made by a court subject to the superintendence of the <ORG>, anything to the contrary contained in cl. 10 of the, Letters Patent of Her Majesty dated 17th March 1866 read with cls, 17 of the U.P. <ORG> Amalgamation Order of 1948, or in 'any law, notwithstanding. In subs. (2) of the section an exception was made in the case of appeals pending before the, <ORG> on the date immediately preceding the date of en- forcement of the Act. The memorandum of appeal in Special Appeal No. 1880 of 1962 was presented in the <ORG> of Allababad on November 9, 1962. The <ORG> directed the payment of additional court fees and on that being done that memorandum was 'accented and registered in January 1963. Eventually, however the <ORG> held that the appeal was not saved by s. 3(2) of U.P. Act of 1962, since in view of s. 4 of the <ORG> Fees Act the memorandum of appeal had no effect before the making good of the deficiency in court fees. In appeal by certificate, to this <ORG>, the question for decision was whether there was an appeal pending before the <ORG> on November 12, 1962 i.e. tile date immediately preceding the date of the enforcement of Act 14 of 1962. HELD : In considering the question as to the maintainability of an appeal when the court fee paid was insufficient to start with but the deficiency was made good later on, the provisions of the <ORG> Fees Act and the Code of Civil Procedure have to be read together to form a harmonious whole and no effort should be made to give precedence to provisions in, one over those of the other unless the express words of a statute clearly override there of the other. In the present context this could only-be done by readings s. 149 of the Code of Civil Procedure as. a proviso to s. 4 of the <ORG> Fees Act by allowing the deficiency to be made good within the period of time fixed by it. [261 F- H] Although there is no definition of the word "appeal" in the Code of Civil Procedure, it can be instituted by filing a memorandum of appeal as provided in O. 41, r. 1 of the Code. The filing of a memorandum of appeal therefore bring an appeal into existence; if the memorandum is deficient in court-fee, it may be rejected and if rejected, the appeal comes to an end. But if it is not rejected and time is given to the appellant 254 to make up the deficiency and this opportunity is availed of s. 149 of the Code which expressly provides that the document is to have validity with retrospective effect as if the deficiency had been made good in the first instance comes into play. By reason of the deeming provision in s. 149 the memorandum of appeal is to have, full force and effect and the appeal has to be treated as one pending from the date when it was before the Stamp Reporter and the deficiency noted therein. [264 H; 265 D-H] Applying the above principle the bar of s. 3(1) of U.P. Act 14 of 1962 would not operate in the instant case since the appeal in question must be held to have been 'pending' within the meaning of s. 3(2) . [265 D] JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 544 of 1967. Appeal from the judgment and decree dated August 18, 1964 of <ORG> in-Special Appeal No. 880 of 1962. <NAME> and <NAME> for the appellant. <NAME>, <NAME> and <NAME>, for res- pondent No. 1.

The Judgment of the Court was delivered by-- <NAME>, J. In this appeal by certificate granted by <ORG> the only question is, whether Special Appeal No. 880 of 196 of that court was maintainable in view of the provisions of the U.P. Act XIV of 1962 abolishing such appeals.

The said Act styled the U.P. High Court (Abolition of Let- ters Patent Appeals) Act came into force on 13th November, 1962. Section 3 of the Act provided as follows :-

"(1) No appeal, arising from a suit or proceeding instituted or commenced, whether prior or subsequent to the enforcement of this Act, shall lie to <ORG> from a judgment and order of one Judge of the <ORG>, made in exercise of appellate jurisdiction, in respect of a decree or order made by a court subject to the superintendence of <ORG>, anything to the contrary contained in clause ten of the Letters Patent of Her Majesty, dated the 17th March 1866 read with Clause 17 of the U.P. High Courts' (Amal- gamation) Order, 1948, or in any law not with standing.

(2) Notwithstanding anything contained in sub-section (1) all appeals pending before <ORG> on the date immediately preceding the date of enforcement of this Act shall continue to lie and be heard and disposed of as heretobefore, as if this Act had not been brought into force."

The memorandum of appeal in Special Appeal No. 880 of 1962 was presented in <ORG> on 9th November, 1962. There was some doubt as to whether the court-fee paid in respect of the memorandum at the date of its presentment was sufficient. Ultimately however <ORG> <ORG> directed the payment of additional court-fee and on that being done the memorandum was accepted and registered in January 1963. The question before us is, whether there was an appeal pending before <ORG> on 12th November 1962 i.e. the date immediately preceding the date of enforcement of the above U.P. Act .

It will not be out of place to set forth a short history of the litigation culminating in the filing of the said memorandum of appeal. On 2nd-April 1872 a property was mortgaged with possession to one <NAME> by two mortgagers, namely, <NAME> and Smt. Sunder Bibi for a sum of Rs. 3,684. The first respondent herein claiming to be the representative-in-interest of the mortgagors claimed to have paid the amount of the mortgage money to respondents 2 to 7 herein on 10th September 1945. She filed a suit on September 26, 1946 'being Suit No. 117 of 1946 praying inter alia for )ejectment from the suit property of the appellant (impleaded as defendant No. 1 in the suit) and another person impleaded as defendant No. 8, a sub-tenant. For pur- poses of jurisdiction and court-fee she valued the property in suit i.e. a grove with houses, at Rs. 5,200 besides Rs. 420 by way of mesne profits. Alternatively, she prayed for a decree for Rs. 3,684 in case possession and occupation was not decreed to her. On 2nd November 1951 the Additional Civil Judge of Mirzapur dismissed the suit as, against the appellant and defendants 3 and 4. The plaintiff, the first respondent herein, filed First Appeal No. 309 of 1952 is <ORG> at Allahabad oil 26th February, 1952. She valued the appeal at Rs. 4,816 and paid court-fee amounting to Rs. 493-12-0. During the pendency of the appeal to <ORG>, the original plaintiff died and her legal representatives were brought on record. A learned single Judge or <ORG> allowed the appeal by a judgment rendered on 10th September 1962 He held that the plaintiff was entitled to a decree for possession against respondents 1 and 8 and also passed a decree for Rs. 420 against respondent No. 1 alone. According to the learned Judge defendants 2 to 7 being the representatives of the mortgagee were proforma defendants and were not liable for the Dlaintiffs costs. On 8th November, 1962 the appellant (defendant No. 1 in the suit) filed a memorandum of appeal which was ultimately registered as Special Appeal No. 880 of 1962 paying court-fee amounting to Rs. 425 on the basis of the valuation of the property at Rs. 4,816. The Stamp Reporter of the Court reported that the court-fee stamps affixed to the memorandum were insufficient by Rs. 425 according to the valuation of the property which was Rs. 8,920 on the basis of the relief claimed. Counsel for the appellant made an endorsement at the foot of the said report raising objections thereto. The Joint Registrar made a note on 9th November 1962 reading:

"Without going through the papers the question of court-fees cannot be decided forthwith. Let it be taken as presented to-day." The order sheet shows that In compliance with the Registrar's order dated 11th December 1962 an objection filed by counsel for, the appellant was put up with the Stain Reporter's Report."

On 20th December 1962 the Taxing Officer made a note that the deficiency, of Rs. 425/- had been made good on that date by the appellant and that counsel expressed his desire not to press the objection raised earlier. The Taxing' Officer directed that the matter be placed before the Court for orders as to the acceptance of stamps to make good the deficiency and for amendment of the valuation of the Special Appeal. The matter appeared on the board of <ORG> of <ORG> on 31st December, 1962 when it was adjourned till 3rd January 1963. On the last mentioned date the Bench allowed the amendment of the valuation of the appeal and directed the admission of the appeal and issue of notices. On the matter appearing before <ORG> on 4th January, 1963 and explanatory order was made recording, that the court-fee on the memorandum of the Special Appeal was originally deficient because <ORG> had been wrongly under-valued inasmuch as the valuation of the property had been determined by the tral court at the figure of Rs. 8,920. After that determination, the trial court had called upon the plaintiff to make up the deficiency in respect of the court-fee for the relief of possession and the plaintiff had complied with that order. Consequently the order of the trial court determining the court-fee payable as well as the valuation had become final. The plaintiff should have valued <ORG> at Rs. 8,920 and his counsel was prepared to make up the deficiency in court-fee. The point to note is that the appellant in the Special Appeal was probably not very much to blame inasmuch as he had valued the same according to the valuation put on <ORG> by the plaintiff herself to start with. The question however remains as to whether on the deficiency being made good the appeal could be treated as one pending on 12th November, 1962.

Appeals being creatures of statutes or statutory rules, we must turn to the Code of Civil Procedure first to find out how they are to be instituted. Order 41 rule 1 (1) lays down that :

"Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the <ORG> or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate <ORG> dispenses therewith) of the judgment on which it is founded."

Sub-r.(2) of the rule provides that the memorandum shall set forth concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively. Under rule 9(1) of the Order:

"Whether a memorandum of appeal is admitted, <ORG> of the proper officer of that Court shall endorse thereon the date of presentation, and shall register the appeal in a book to be kept for the purpose."

Under sub-r.(2) such book is called the Register of Appeals. Rule 22 of Order 41 gives the respondent, although he may not have appealed from any part of the decree the right to support the decree on any of the grounds decided against him and further to take any cross-objection to the decree which he could have taken by way of appeal provided he files such objection in the appellate court in- the manner laid down. Under sub-r.(2) such cross-objection has to be put up in the form of a memorandum.

It is necessary to note the relevant provisions of the Rules of the High <ORG> Allahabad High <ORG> made in exercise of the powers conferred by Art.225 of the Constitution of India and all other powers enabling the court in that behalf with regard to the institution of appeals generally and also Special Appeals. In Chapter 1 rule 3 a Special Appeal is defined as an appeal from the judgment of one Judge. Omitting the words which are not relevant, rule 5 of Chapter VIII. provides An appeal shall lie to the <ORG> from the judgment..... of one Judge made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendency of the <ORG>, where the Judge who passed the judgment declares that the case is a fit one for- appeal."

Chapter XI deals in general with the presentation of appeals and applications. Under rule 1 of this Chapter every memorandum of appeal or objections must be presented for admission in court.( This rule however does not apply to appeals and ap- plications that may under the rules of the court be filed before the Registrar or other officers. Under r. 3 of Chapter Xi no memorandum of appeal shall be presented unless it bears an office report specifying the matters mentioned in clauses (a) to (f) thereof. Cl. (a) relates to the question whether the memorandum of appeal is within time or if beyond time, the period by Which it is beyond time. Under cl. (d) a statement has to be made whether any court- fee is payable or not. The matters mentioned in cl. (e) are :

"Where court-fee is payable, whether the court"fee paid is sufficient and in case it is deficient, the extent fo such deficiency."

The rule also lays down that where a report under cl. (e) cannot be made without an examination of the record, the office shall state that a further report would be made on receipt of the record. Under r. 4 it is open to the appellant or his advocate if he contests the office report as to court-fee to take the memorandum of appeal to the Taxing Officer for the determination of his objection and the Taxing Officer must determine it forthwith. Further, if the Taxing Officer decides that there is deficiency in the amount of the court-fee paid, the appellant or the applicant as the case may be shall make good such deficiency before presenting the memorandum or application to the court; provided that if limitation is about to expire and the time is too Short to enable the appellant to make good such deficiency, he can present the memorandum of appeal in court and make good such deficiency within such time as may be allowed by the court. Under r. 10(2) of Chapter IX "In a Special Appeal from the judgment of one Judge passed in the exercise of appellate jurisdiction, the memorandum of appeal, duly stamped, shall be presented within sixty days from the date of judgment. The memorandum of appeal need not be accompanied by a copy of the judgment appealed from or a copy of the decree or formal order and the time taken in obtaining such copies shall not be excluded in computing the said period of sixty days."

Under sub-r. (1) of r. 21 of Chapter IX no memorandum of appeal shall be received if it is not in the proper form or it is not accompanied by the necessary documents. Under sub-r. (2) :

"If the required documents are not supplied or the defects are not removed within the time allowed by the Judge or the Registrar, as the case may be, the appli-

cation or memorandum of appeal shall be- listed for rejection before the <ORG>."

Rule 1 of Chapter XXXVII lays down that a separate register of institutions in the prescribed form has to be kept for each of the classes of cases mentioned therein. The 14th item in the list is "Special Appeals". Under this rule cases must be, entered in the register according to the date of admission and no defective case should be entered therein. Under r. 3 of this Chapter a register in the prescribed form has to be maintained of all defective cases under several classes mentioned in rule 1 including Special Appeals. Such cases have to be entered in the register according to the date of presentation and a record kept of the steps taken from time to time to remove the defect. As soon as the defect has been removed and the case admitted, it has to be entered in the appropriate register of institutions.

The recital of facts given above show that the rules of <ORG> were folowed in this case and the requirements thereof were duly complied with.

The Court Fees Act , VII of 1870, provides for the payment of various fees payable in respect of different kinds of documents to be filed in court. Omitting the words which are not relevant, s. 4 lays down that :

"No document of any of the kinds specified in the First or Second Schedule to this Act annexed, as chargeable with fees, shall be exhibited or recorded in, or shall be received or furnished by, any of the said <ORG> in any case coming before such Court in the exercise of its jurisdiction as regards appeals from the judgments of one or more Judges of the said Court, or of <ORG> unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document."

Among the documents specified in the First Schedule chargeable with fees which are ad valorem are memoranda of appeal presented to any court. Section 28 of the Act lays down that no document which ought to bear a stamp under this Act shall be of any validity unless and until it is properly stamped. This is however subject to the qualification that if any such document is through mistake or inadvertance received, filed or used in any court without being properly stamped, the presiding Judge or the head of the office as the case may be or in the case of <ORG>, any Judge of such court may, if he thinks fit, order that such document be stamped as he may direct; and on such document being stamped accordingly, the same and every proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance.

As an appeal under the Code of Civil Procedure can only be preferred in the form of a memorandum laid down in Order 41 rule 1 of the Code and further as the memorandum of appeal has to be stamped in accordance with the Court Fees Act it would appear that unless there were some saving provisions such a memorandum if not properly stamped could not be recei ved at all by <ORG> when a litigant desires to file an appeal or a Special Appeal. The rules of <ORG> specified above are aimed at adjudication of any dispute or objection as to court-fee payable on a memorandum of appeal. When it is found that the court-fee paid is deficient, the court has power to allow time for the purpose of making the deficiency good. Even where limitation is about to expire and the time is too short to enable the appellant to make good the deficiency the court may allow the litigant time for the purpose. This shows that the court can keep on its file a memorandum of appeal although insufficiently stamped and the court will ordinarily allow an opportunity to the appellant to make good the deficiency and will not throw it out of hand. <ORG> however lays an embargo on the court from receiving any document including a memorandum of appeal if it is not properly stamped. this provision of law was strictly construed in the case of <NAME> v. <NAME>) where <ORG> took the view that where a memorandum of appeal was insufficiently stamps when tendered was subsequently stamped sufficiently, the affixing %of the full stamps would not have a retrospective effect so as to validate the original presentation unless it has been done by order made under the second paragraph of s. 28 of the Court Fees Act. In that case the court allowed the Preliminary objection that as the making good of the deficiency had taken peace after the period of limitation there was before the court no valid appeal in regard whereof a decision could be given on merits.

The rigour of the law as interpreted in this decision was mitigated by the amendment of the Code of Civil Procedure of 1882 by the insertion of section 582-A by Act VI of 1892 reading "If a memorandum of appeal or application for a review of judgment has been presented within the proper period of limitation, but is written upon paper insufficiently stamped, and the insufficiency of the stamp was caused by a mistake on the part of the appellant or applicant as to the amount of the requisite stamp, the (1) I.L.R. 12 Allahabad 129 F.B.

memorandum of appeal or application shall have the same effect, and be, as valid as if it had been properly stamped :

Provided that such appeal or application shall be rejected unless the appellant or applicant supplies the requisite stamp within a reasonable time after the discovery of the mistake to be fixed by the court."

The above provision was enacted in a slightly different form in the Code of 1908. S. 149 of the new Code reads:

"Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance."

The above section therefore mitigates 'the rigour of s. 4 of the Court Fees Act and it is for the court in its discretion to allow a person who has filed a memorandum of appeal with deficient court-fee to make good the deficiency and the making, good of such deficiency cures the defect in the memorandum not from the time when it is made but from the time when it was first presented in court.

In our view in considering the question as to the maintain- ability of an appeal when the court-fee paid was insufficient to start with but the deficiency is made good later on, the provisions of the Court Fees Act and the Code of Civil Procedure have to be read together to form a harmonious whole and no effort should be made to give precedence to provisions in one over those of the other unless the express words of a statute clearly override those of the other.

Apart from the decisions bearing on the point, there can in our opinion, be no doubt that s.4 of the Court Fees Act is not the last word on the subject and the court must consider the provisions of both the Act and the Code to harmonise the sets of provisions which can only be done by reading s. 149 as a proviso to s. 4 of the Court Fees Act by allowing the deficiency to be made good within a period of time fixed by it. If the deficiency is made good no possible objection can be raised on the ground of the bar of limitation : the memorandum of appeal must be treated as one filed within the period fixed by the Limitation Act subject to any 12sup(Cl)/70-3 express provision to the contrary in that Act and the appeal must be treated as pending from the date when the memorandum of appeal was presented in court. In our view it must be treated as pending from the date of presentation not only for the purpose of limitation but also for, the purpose of sufficiency as to court-fee under s. 149 of the Code. If such a construction be accepted, the bar of s. 3 of the Abolition of Letters Patent Appeals Act of 1962 would not operate in the instant case.

In the case of <CITATION> (1) a Full Bench of <ORG> was called upon to adjudicate on the question of the validity of a plaint presented on a paper insufficiently stamped to start with but where the deficiency was made good within the time given by the court under s.54(b) of the Code of Civil Procedure, 1882. Section 54(b) of the Code of 1882 is reproduced in Order 7, rule 11 of the Code of 1908. Under the said provisions a plaint has to be rejected if the relief sought is properly valued but the plant is 'Written upon a paper insufficiently stamped and the plaintiff on being required by the court to supply the requisite stamp within a time to be fixed by it fails to do so. The argument advanced in that case before the court appears to have been to the effect that a plaint which was not sufficiently stamped within the period of limitation was not a valid plaint at all. In the order of reference the law on the subject was set forth in some detail and the learned referring judge opined that an insufficiently stamped plaint did not become a new plaint when the deficiency was supplied. The learned Judges of <ORG> fully agreed with the view taken in the order of reference and with the reasons upon which it was based and merely added that s.149 of the Civil Procedure Code of 1908 was in accordance, with the view.

<ORG> gave a decision much to the same effect in <CITATION> (2). In this case the suit was filed for accounts and the settlement of the sums due in connection with the affairs of a partnership firm, the plaintiffs valuing the suit at Rs. 3,000 for the purpose of court fees 'and asking for rendition of accounts and a decree for Rs. 3,000 with the statement that if more than that amount was found due the plaintiffs would pay an additional court-fee. The defendant asked for a decree in his own favour for Rs. 29,000/. The trial Judge passed a final decree in favour of the defendant for Rs. 19,991 and no sum was found due by him to the plaintiffs under their claim for Rs. 3,000. The judgment was appealed from by both parties. The plaintiffs- ,appellants challenged the decree against them and maintained that not only that decree be set aside but one in their favour for Rs. 3,000/_ or less or more should be granted. They (1) I.L.R. 32 Madras 305 F.B.

(2) A.I.R. 1929 P.C. 147.

valued the appeal for purposes of court-fee at Rs. 19,991 and paid fees thereon amounting to Rs. 975. The question as to the invalidity of the appeal on the ground of insufficiency of court-fee was answered by <ORG> by holding that the memorandum of appeal did state in terms of the Act (i.e. the Court Fees Act ) the amount at which the relief was sought and that determined the appeal. According to <ORG> even if it was held that the fee payable was insufficient it was the duty of the court in exercise of its discretion to give an opportunity to add to the amount lodged the extra sum of Rs. 70 or 80 required for deferring the question of the amount of fee under the Court Fees Act until final value was ascertained. Referring to the provisions of s. 149 of the Code the <ORG> observed that the discretion under that section "extended to the whole or any part of any fee prescribed and could be exercised at any stage in the case, while finally, upon the extra payment being made, the document is to have the same effect as if it had been paid in the first instance". The <ORG> further held that as the decree of the Subordinate Judge was dated 24th March, 1924, the first appeal was on 27th May and the Second Appeal on 2nd June the time for limitation of the appeal being 90 days both appeals were within time. It was further held that the appeals were not a nullity and on the contrary they were documents duly presented to and accepted by the court, and as to the court fee thereon, should the valuation be unsatisfactory or in the end insufficient, that is validated by the additional payment, the result of which payment is that the document, namely, the memorandum of appeal, stands good from its date and the appeals are accordingly not time-barred On a parity of reasoning it is difficult to see why if a memorandum of appeal insufficiently stamped is not to be rejected as barred under the Limitation Act , why a different conclusion should flow as regards compliance with the Court Fees Act in view of the express provisions of s. 1 49 of the Code. In our opinion s. 1 . 49 will cure the defect as from the date when the memorandum of appeal was filed alike for the purpose of Limitation Act and the Court Fees Act and the appeal must be treated as one pending on the 9th November 1962 and as such unaffected by s.3 of the U.P. Act of 1962. <CITATION> (1) s. 149 was interpreted as a proviso to s. 4 of the Court Fees Act in order to avoid contradiction between the two sections. The court was however careful to lay down that discretion had to be exercised in allowing deficiency of court fees to be made good but once it was done a document was to be deemed to have been presented and received on the date on which it was originally filed. This was a case of plaint. (1) A.I.R. 1951 Allahabad 4 F. B.

<CITATION> (1) of the same, year dealing with a case of a memorandum of appeal which was found defective for want of proper court-fee and not admitted in view of s. 4 of the <ORG> Fees Act but returned or rejected on that ground it was held that the memorandum could not be treated as an appeal. It was there observed "If s. 4 of the Act (i.e. <ORG> Fees, Act) had stood by itself, an unstamped or insufficiently stamped memorandum of appeal, chargeable with fees, could not have been received by <ORG> for any purpose....... There is nothing in s. 149 of the Code which overrides the provisions of s. 4 , <ORG>-fees Act ,, it merely postpones the operation of that section for the time being. If the whole or part of the requisite court- fee is not paid within the time allowed by the <ORG>, s. 149 of the Code ceases to have effect, and the <ORG> is precluded from filing or recording an unstamped or insufficiently stamped memorandum of appeal in court."

According to <NAME>, a legal proceeding is "pending" as soon as commenced, and until it is concluded i.e. so long as the court having original cognizance of it can make an order on the matters in issue, or to be dealt with, therein. When the deficiency in the payment of court-fees is made good and the document or memorandum of appeal is to be given the force and effect which it would have had if there had been no deficiency, the appeal must be treated as pending on 12th November, 1962. <CITATION> (2 ) which turned on the interpretation of Art. 182(2) of the Limitation Act of 1908 as regards the validity of an appeal presented in an irregular form the <ORG> observed that although there was no definition of 'appeal' in the Civil Procedure Code any application by a party to an appellate court asking it to set aside or revise a decision of a Subordinate Judge, is an appeal within the ordinary acceptation of the term, and that it was no less an appeal because it was irregular and incompetent. The words used in that judgment are no doubt of wide import. But however that may be in the case before us there can be no difficulty in holding that an appeal was presented in terms of Order 41, r. 1 of the Code inasmuch as all that this provision of law requires for an appeal to be preferred is the presentation in the form of a memorandum as therein prescribed. If the court fees paid thereon be insufficient it does not cease to be a memorandum of appeal although the court may reject . If the deficiency in (1) A.I.R. 1951 Allahabad 79. (2) A.I.R. 1932 P.C. 165.

the fees is made good in terms of an order of the court, it must be held that though the curing of the defect takes place on the date of the making good of the deficiency, the defect must be treated as remedied from the date of its original institution.

In view of the above reasons, we find ourselves unable to concur in the judgment of <ORG>. In the main judgment under appeal, the reasoning appears to be that the memorandum of appeal had no effect before the making good of the deficiency and as the same took place after 12th November 1962 the appeal was not saved by s. 3 (2) of the U.P. Act . The learned Chief Justice of <ORG> expressed the opinion that a memorandum of appeal barred by time stood on a footing different from the one in which there was deficiency in the court free paid. According to him under s. 3 of the Limitation Act it is an appeal that is dismissed and not a memorandum of appeal. When therefore s.4 of the Court Fees Act deals with a memorandum of appeal the consideration of the laws of limitation bears no analogy to a deficiency in court-fees. With due respect we are not impressed by the above reasoning. As already noted, although there is no definition of the word "appeal" in the Code of Civil Procedure, it can only be instituted by filing a memorandum of appeal. The filing of memorandum of appeal therefore brings an appeal into existence; if the memorandum is deficient in court-fees, it may be rejected and if rejected, the appeal comes to an end. But if it is not rejected and time is given to the appellant to make up the deficiency and this opportunity is availed of, s. 149 of the Code expressly provides that the document is to have validity with retrospective effect as if the deficiency had been made good in the first instance. By reason of the deeming provision in s. 149 the memorandum of appeal is to have full force and effect and the appeal has to be treated as one pending from the date when it was before the Stamp Reporter and the deficiency noted therein.

In the result, the appeal must be allowed with a direction that <ORG> should hear <ORG> instituted on the 9th November, 1962. The costs of this appeal will abide by the decision of <ORG>.

G.C. Appeal allowed.