Judgment :- RAMANUJAM J.:— 1. These two appeals filed by the sane appellant arise out of two suits O. 8. No. 134 of 1963 and 135 of 1963 on the file of the Subordinate Judge Coimbatore, filed by the appellant under S. 70 of the Hindu Religious and Charitable Endowments Act, 1959, to set aside the Orders of the Commissioner, Hindu Religious and Charitable endowments in Endowment App. No. 49 of 1962, against the Deputy Commissioners order in O.A. 41 of 1959 and endowment App No. 50 of 1962 against the Deputy Commissioners order in O.A. 17 of 1960 respectively. 2. In O.A. 41 of 1959 the appellant herein sought a declaration that he is the hereditary trustee of Venugopalaswami temple in Kiliagoundanpalayam as per the will dated 9th June 1946 of the founder, one Ramakkal. The claim was resisted by the first respondent herein. In O.A. 17 of 1960 the first respondent had claimed that the said temple was not a public temple coming within the purview of the said Act and that in any event, she should be declared to be its hereditary trustee. The claim of the first respondent was contested by the appellant. 3. The Deputy Commissioner enquired into both the applications and held in O.A. No. 41 of 1959 that the appellant was not the hereditary trustee and in O.A. 17 of 1960 that the suit temple is a public temple coming within the purview of the Act and that the respondent was a hereditary trustee. Against the said orders, the appellant filed two appeals to the Commissioner but without success. Thereafter he filed the two suits to set aside the orders passed by the Commissioner on the said two appeals. 4. One Baithamma Gounder had installed a deity of Sri Venugopalaswami in a thatched shed put up by him in the village Nathan in his village in Kiliagoundanpalayam in Coimbatore taluk. He died leaving behind him his only daughter, Ramakkal and very extensive properties. She married one Ramana Gounder. As Ramana Gounder had no issues by Ramakkal he married two other wives, Kondammal and Thirumalai Ammal. By Kondammal he had a daughter Thulasi who married Perumal Gounder and the plaintiff is their son. By Thirumalai Ammal he had a son Krishnaswami Gounder. The first defendant is the wife of the said Krishnaswami Gounder. She married one Ramana Gounder. As Ramana Gounder had no issues by Ramakkal he married two other wives, Kondammal and Thirumalai Ammal. By Kondammal he had a daughter Thulasi who married Perumal Gounder and the plaintiff is their son. By Thirumalai Ammal he had a son Krishnaswami Gounder. The first defendant is the wife of the said Krishnaswami Gounder. After the death of Baithama Gounder, Ramakkal renovated and reconstructed the temple by putting up permanent constructions in the place of the old thatched shed. She a he endowed by Ex. A.1, dated 23rd October 1912 certain properties to the temple for its upkeep and for performance of poojas therein. Under the said deed she bad appointed herself as the trustee of the temple. She was in management of the temple and the endowed properties as its trustee as and from 23rd October 1912. Later the said Ramakkal had endowed to the temple some more properties by her will Ex. A. dated 9th June 1946. Under the said will she bad appointed Krishnaswami the first defendants husband as the managing trustee and the plaintiff as his c. trustee for management of the temple and its properties after her lifetime. The said will also contained provisions for due administration of the properties and performance of poojas as also for appointment of new trustees When vacancy arose in the office of trustees. Ramakkal died in 1952. Though under the will of Ramakkal the plaintiff had been appointed as a trustee after her lifetime along with the said Krishnaswami, the plaintiff did not associate himself with the management for the reason that there was strained relationship between himself and Krishnaswami. Therefore, Krishnaswami also continued to be the sole trustee practically till a year before his death on 28th August 1958. These are admitted facts. However, there is controversy as to what happened subsequently. It is the case of the plaintiff that on the death of Krishnaswami, he is entitled to act as a trustee appointed by the will of Ramakkal and that the first respondent is not entitled to be in management of the temple and its properties after the death of Krishnaswami, and that even if his claim as a hereditary trustee is not accepted, there should be fresh appointment of legal trustees as per the directions contained in the will of Ramakkal. 5. 5. The first respondents case was that the suit temple is not a public temple and, therefore, there cannot be any appointment of trustees under the Act and that in any event she having been co-opted as a trustee and later appointed as a managing trustee by her husband Krishnaswami some time before his death, she should be declared to be a hereditary trustee. 6. The rival claims were considered by the Deputy Commissioner and the Commissioner en appeals. They have held that the suit temple is a public temple coming within the purview of the Hindu Religious and Charitable endowments Act and that the 1st respondents stand that it is not a public temple cannot be countenanced. they had however declared the first respondent to be a hereditary trustee of the temple by virtue of her having been co-opted as a trustee by her husband, Krishnaswami some time before his death. The plaintiff felt aggrieved against only that portion of the orders of the Deputy Commissioner and the Commissioner, which rejected his claim to be a hereditary trustee and upheld a similar claim put forward by the first respondent, and, therefore, be filed these suits to set aside that portion of the orders of the Commissioner and the Deputy Commissioner. Therefore, the issue whether the suit temple is a public temple or not is not the subject matter of the suit and we have therefore to proceed on the basis that the suit temple is a public temple. 7. Both the parties have adduced evidence in support of their respective claims. The trial court, on a consideration of the evidence, rejected the claim of the appellant and upheld the claim of the first respondent on merits. One of the defences taken by the first respondent in both the suits was that the suits are not maintainable for the reason that the Commissioner, whose orders are sought to be set aside, had not been made a party to the suits and that the non-joinder of the Commissioner, a necessary party against whom alone the statutory relief can be had, would entail the dismissal of the suits in limine. This defence has been rejected by the court below holding that the non-joinder of the Commissioner as a party to the two suits is not fatal to the maintainability of the suits. 8. This defence has been rejected by the court below holding that the non-joinder of the Commissioner as a party to the two suits is not fatal to the maintainability of the suits. 8. In these appeals, the learned counsel for the appellant contends that the decision of the court below on merits cannot be sustained and that the evidence on record fully supports his claim to be a hereditary trustee and disproves the claim put forward by the first respondent. He also points out that to meet the legal objection raised by the contesting respondent as to the maintainability of the suits, the Commissioner has been impleaded as the second respondent in both the appeals by way of abundant caution, though in law, he is neither a proper nor necessary party and, therefore, the point as to the maintainability of the suits can no longer subsist. xxx [The discussion on facts is omitted—Ed.] The non-participation in the management of the temple by the appellant and his unwillingnets to associate himself with the affairs of the temple along with Krishnawami should be taken to show his intention not to take up the trusteeship as per the will of Ramakkal. We have to therefore agree with the court below that when the appellant failed to act as a trustee in pursuance of Ex. A.2 right from the dale of death of Ramakkal, he is not now entitled to claim the hereditary trusteeship of the suit temple. We therefore find that O.A. 17 of 1960 and O.S. 135 of 1963, in which the appellant claimed such a right have rightly been dismissed. Hence A.S. 775 of 1967 fails and is dismissed. 10 As regards the claim put forward by the first respondent to be a hereditary trustee of the suit temple, it is seen that her claim is mainly based on Ex. B9 dated 21st August 1957, a letter said to have been written to her by her husband while he was in the hospital. XXX [The discussian on facts is omitted—Ed.] The evidence merely discloses that the first respondent was attending to the affairs of the temple when her husband was ailing and after her husbands death. But that will make her only an de facto trustee. XXX [The discussian on facts is omitted—Ed.] The evidence merely discloses that the first respondent was attending to the affairs of the temple when her husband was ailing and after her husbands death. But that will make her only an de facto trustee. We are not therefore, in a position to uphold the claim of the first respondent that she was appointed as a cotrustee along with her husband during his lifetime as per the terms contained in the will. The fact that she has been functioning as a de facto trustee of the temple after the death of her husband, Krishnaswami, will not entitle her to claim the status of hereditary trustee of the temple as per, Ex. A.2. Thus the position is that there are no legally constituted trustees for the temple. On this view, the finding of the court below as well as the order of the Commissioner that the first respondent Is a hereditary trustee have to be set aside. 14 However, the learned counsel for the first respondent contends that the suits having been filed without impleading the Commissioner whose orders are sought to be set aside, they are liable to be dismissed in limine , and reliance is placed on an unreported Bench decision of this court in A.S. 744 of 1966. In that case the Bench has followed the decision of another Bench of this court in Ramasami Velar v. Pidaran 83 L.W. 568 and held that the Commissioner whose order is sought to be set aside is a necessary party to Ike suit, that in his absence his order cannot be set aside or interfered with, and that the non-joinder of the Commissioner will necessarily entail the dismissal of the suit. A perusal of the judgment in Ramasami Velar v. Pidaran , 83 L.W. 568 shows that after having held that in the absence of the Commissioner whose order is sought to be cancelled in the suit it is not possible for the court to effectually and completely adjudicate upon and settle all;the questions involved in the suit, the court actually impleaded the Commissioner as a party-respondent in the appear and remanded the suit to the court below for fresh consideration. Though in this case the court below held that the Commissioner is not a necessary party to the suit, the appellant, as already stated, has already obtained an order impleading the Commissioner as a party respondent in these appeals. The question is whether the matters should be, sent back to the court below for fresh disposal. 15. We are of the view that the Commissioner having passed his order after taking into account the materials which have been substantially put in evidence in these cases, there is no necessity to send back the suits for fresh disposal. Besides, the learned counsel appearing for the Commissioner does not seek a remand for a fresh disposal of the suits. 16. The learned counsel for the first respondent would then contend that even if the Commissioner has been impleaded as a party respondent, such impleading can only be subject to the provisions of Or. 41 R. 20 C.P.C. and therefore the order impleading the Commissioner after the period of limitation prescribed by S. 70 of the Hindu Religious and Charitable Endowments Act 1959 is bad. But the order impleading the Commissioner as a party respondent has not been challenged and has been allowed to become final. 17. It is true, in this case, the Commissioner has been impleaded as a party respondent only in the appeal and not at the stage of the suit and therefore, the impleading was after 90 days, the period prescribed for a suit under S. 70. According to the learned counsel for the first respondent the suit should be taken to have been filed as against the Commissioner only on the date when he was impleaded in the appeal and therefore the suit as against him should be dismissed in which event no relief could be given to the appellant in the suit filed by him. It is well established that the appellate court can, under O. 1, R. 10, read with S. 107, or by virtue of its inherent powers, add a party as a respondent in the appeal if the interest of justice requires. As a matter of fact the learned counsel for the first respondent did not challenge the power of the appellate court to add the Commissioner as a party respondent at the appellate stage in exercise of its inherent power. As a matter of fact the learned counsel for the first respondent did not challenge the power of the appellate court to add the Commissioner as a party respondent at the appellate stage in exercise of its inherent power. But what he contends is that though the Commissioner has been impleaded as a respondent the suit should be deemed to have been filed as against him only on the date of impleading and that In such a case the suit as against him should be rejected as out of time. It has to be remembered that the appellant who is the plaintiff in both the suits has not sought any relief as against the Commissioner and he merely seeks to set aside the order passed by him in his quasi-judicial capacity. Having regard to the rival claims to the trusteeship put forward by the appellant and the first respondent, the Commissioner cannot be said to be interested in supporting the claim either of the appellant or of the first respondent. Therefore, whatever be the decision that is rendered by the courts with reference to the rival claims to the hereditary trusteeship of the temple, the Commissioner cannot be said to be affected. The result of non-joinder of the Commissioner within the time prescribed under S. 70 will not entail the dismissal of the suit for non-joinder of the Commissioner. 18. It has been held by this court in a series of decisions that where the substantial dispute between the parties is as to which of them is the hereditary trustee, it cannot fall within the ambit of S. 63 of Madras Act 22 of 1959. Only when the dispute is as to whether the office of trusteeship in a temple is hereditary or not S. 63 will apply and the matter has to be decided by the Deputy Commissioner and then by the Commissioner on appeal. It can therefore be said that the Commissioner is a necessary party only to a suit where the question is whether the office of the trusteeship in a temple is a hereditary or not, and not when the dispute centres round as to which of the rival claimants is entitled to be a hereditary trustee in that temple. It can therefore be said that the Commissioner is a necessary party only to a suit where the question is whether the office of the trusteeship in a temple is a hereditary or not, and not when the dispute centres round as to which of the rival claimants is entitled to be a hereditary trustee in that temple. Vide Velayudha Goundan v. Ponnuswami Udayar 1945-1-M.L.J. 300; 58 L.W. 287, Chinnathambi Moopan v. Mamundi Moopan 79 L.W. 173 Krishnaswami Raja v. Krishna Raja 1968-1-M.L.J. 119; 79 L.W. 672 Rangayya Gounder v. Karuppa Naicker 1971-1-M.L.J. 358; 84 L.W. 137. Therefore, even if no relief could be granted gainst the Commissioner in view of the suit not having been filed as against him within 90 days as prescribed in S. 70, the court can consider the claims put forward by the appellant in both the suits, and the court cannot dismiss the suit without adjudicating the rival claims put forward by the parties to the suit on the ground of non-joinder of the Commissioner. It would be a different matter if the Commissioner is interested in the dispute and in sustaining the order. In respect of rival claims to a hereditary office the Commissioner cannot be said to be interested in either of the parties, though he is interested in the proper administration of the institution. 19. Ramaprasada Rao, J., in Muthiah Nattar v. Ibrahim Rowther 80 L.W. 419 has expressed the view that though an application to implead a third party was filed beyond the period of limitation yet courts are not helpless to pass appropriate decree or afford appropriate relief to the party affected, namely, the plaintiff or petitioner in the suit or proceeding concerned. The learned Judge said: — “In such cases it is the duty of the court, whose concept and ideal should be to maintain justice, equity and good conscience, to see that it should net by a mere application of the letter of the law, affect its spirit and intendment and fail to afford such necessary and adequate relief to the petitioner by dismissing the same as against the third party impleaded beyond time. As I am entirely in agreement with the reasoning of Ramamurthi, J., that such a third party appears to be not even a necessary party to such proceeding, I am inclined to hold that the petitioner in this case ought not to be non-suited or his petition dismissed as against the third party merely on the ground that the petition has been filed beyond time”. In this connection we find that the decision in Ramaswami Velar v. Pidaran 83 L.W. 568 has not specifically held that the Commissioner is a necessary party for whose absence the suit entails dismissal. But this decision has been understood by the Bench in the unreported decision in Ap. No. 744 of 1966 as laying down the view that the Commissioner is a necessary party to the suit and that he not having been impleaded, the suit has to fail. In Ramaswami Velar v. Pidaran 83 L.W. 568 if the learned Judges had taken the view that the Commissioner is a necessary party and that the non-joinder of the Commissioner as a party defendant would result in the dismissal of the suit in limine, they would have not impleaded the Commissioner at the stage of the appeal and remitted the matter for fresh consideration to the court below. The learned Judges had expressed the view that if the Commissioner is not made a party, there might be two conflicting decisions on the rival claims of parties one by the court and the other by the Commissioner in whose absence his order cannot be set aside, and that to obviate such an anomalous position it was proper to implead the Commissioner as a party and decide the rival claims of parties in his presence. 20. It has been held in Wishambhar Pandit v. Prahhakar Bhat 8 Bom. 269 that neither the registering officer nor the Government was necessary party to a suit under S. 77 of the Registration Act of 1877, against the order refusing to register a document where the registration has been opposed, on the ground that the person who had opposed the registration alone is a necessary and proper party. In Kanakaratnam v. Venkataratnam A.I.R. 1945 Mad. II . In Kanakaratnam v. Venkataratnam A.I.R. 1945 Mad. II . Leach C.J. speaking for the Beach while approving the principle laid down in the said decision had however held that where there was no opposing party and the only opposing for registration came from the Registrar himself, the Registrar is a necessery party to the statutory suit under S. 77 of the Registration Act and the suit filed without impleading him as a party defendant should be dismissed in limine without going into the merits, as not being maintainable. In this case, there are rival claims to the, office of the hereditary trustee and each party is opposing the claim put forward by the other and therefore, the suit filed by one of the rival claimants against the decisions of the Commissioner to establish his claims to cancel the orders of the Commissioner which stand in the way of his claim cannot be dismissed’ merely because the Commissioner has not been made a party, Order 1 rule 9 C.P.C., enjoins that no suit shall be defeated by reason of the non-joinder of parties and the court may in every suit deal With the matter in controversy so far as the rights and interests of the parties are actually before it. The general rule is that no suit shall be defeated by reason of non-joinder of parties, the exception to that general rule being that a court will refrain from passing a decree which would be ineffective and infructuous eithes due to the nature of the action or the interest that the person who is not before the court has in its subject matter. It is true that where there is a legal requirement that a person should be impleaded as a party, the suit must fail on the ground of non-joinder, but where there is no such legal requirement as in this case, there is no reason why the Suit should be dismissed for non-joinder of parties if the court could deal with the disputes inter se between the parties before the court. The effect of impleading the Commissioner as a party at the appellate stage would be that the court cannot give any effective relief or decree against the Commissioner. The effect of impleading the Commissioner as a party at the appellate stage would be that the court cannot give any effective relief or decree against the Commissioner. But in statutory suits such as the present one where no reliefs have been claimed against the Commissioner and only the quasi-judicial orders passed by the Commissioner at the instance of the parties are challenged, the Commissioner if usually impleaded as a party so that the court could go into the rival claims of parties in the presence of the Commissioner, In the circumstances, as these, it cannot be said that ever after impleading the Commissioner, he could still say that he is not bound by the decree, Therefore, the court can give an effective decree to either of the rival claimants in the presence of the Commissioner, We are, therefore, of the view that the suits out of which the appeals have arisen are not liable to be dismissed in limine on the ground of non-joinder of the Commissioner. XXXX (The discussion of facts is omitted Ed.) We therefore suggest that the Deputy Commissioner, Hindu Religous and Charitable Endowments may, in the interest of the proper administration of the temple, initiate proceedings for settlement of a scheme under S. 64 of the Act providing inter alia for appointment of hereditary trustees in accordance with the wishes of the founder as expressed in the will Ex. A.2 and defining clearly their respective powers and duties. 22. With the above observations, Ap. No. 744 of 1967 is allowed and the order of Commissioner affirming the order of the Deputy Commissioner holding the first respondent to be the hereditary trustee of the temple is set aside. There will be no order as to cost in either of these appeals.