Judgment : The suit which was filed for declaration, injunction and possession was dismissed by the trial court but the first appellate court has decreed the suit for declaration but dismissed it regarding permanent injunction and possession. This second appeal is filed by the defendants. The plaintiffs have filed the cross objection. 2. The suit has been filed by the plaintiffs on behalf of themselves and as representatives of “Thousand Yadhavas Community”, Madurai, on the following allegations: Sri Ramaswamy temple and Sri Navaneethakrish-naswamy temple which are in North Masi Street, Madurai town are under the management of the Devasthanam of “Thousand Yadhavas” These temples belong to the community of Thousand Yadhavas’ who are mainly residents of Madurai Town and other places in Madurai District Thousand Yadhavas’ community forms a considerable section of the Hindu community. The temples are old ones and members of the public take part in its festivals. These temples are public temples. The plaintiffs are members of the Thousand Yadhavas’ community and worshippers of the deities in these temples. The first plaintiff is the wife of one Krishna Konar, son of Palaniandi Konar. Her husband Krishna Konar had a brother by name Lakshmana Konar. The second defendant is the wife of the said Lakshmana Konar. Palaniandi Konar, father of Krishna Konar and Lakshmana Konar had a brother by name Alagappa Konar. Alagappa Konar had a son by name Arumugha Konar who died unmarried in 1979. Palaniandi Konar and Alagappa Konar had endowed properties under registered trust deeds dated 10. 1905 ,2. 1908 and 26. 1911 for the purpose of pooja services in the said two temples. The trust deeds specifically enjoins that any alienation by the executants of the trust deed or their heirs would be invalid. The first plaintiff being the wife of one of the heirs of the founders i.e., Palaniandi Konar’s son Krishna Konar, she is entitled to take pan in the trust and she is interested in its performances. She is so entitled even as a worshipper in the temples. The plaintiffs 2 to 4 also as worshippers in the temple are interested in the proper performances of the trust. The first plaintiff was taking part in the conduct of the trust and in this respect she has been relying upon Lakshmana Konar, the husband of the second defendant and Arumugha Konar. Recently Arumugha Konar died in 1979. The plaintiffs 2 to 4 also as worshippers in the temple are interested in the proper performances of the trust. The first plaintiff was taking part in the conduct of the trust and in this respect she has been relying upon Lakshmana Konar, the husband of the second defendant and Arumugha Konar. Recently Arumugha Konar died in 1979. Taking advantage of this the defendants are manoeuver-ing to bring about fraudulent documents for alienating the trust properties to make illegal gain for themselves. The second defendant being a helpless lady she is virtually under the control of the third defendant and they are negotiating with the first defendant for sale of the properties. The trust properties having been endowed in favour of the abovesaid two temples none of the defendants has any right to deal with the properties or to alienate them. For these reasons the plaintiffs had to file the suit for declaration that the trust in question is a public one and for injunction restraining the defendants 2 and 3 from alienating the properties of the trust and for possession of the trust properties from the defendants. Subsequent to the suit the fifth plaintiff has been impleaded as an heir succeeding to the first plaintiff who died during the pendency of the suit and the first plaintiff’s rights in the trust has devolved on the fifth plaintiff under a Will executed by her dated 4. 1983. 3. As against this the first defendant has filed a written statement and defendants 2 and 3 have filed a separate written statement. The first defendant would contend that on enquiry he was made to understand that the suit property belonged to the private family trust of defendants 2 and 3 and they could for the purpose of raising more funds for the trust services sell the suit property and purchase other properties which would yield more income, and only then he entered into an agreement to purchase the suit property. 4. The defendants 2 and 3 in their written statement would admit that the two temples are ancient ones and they belong to the “Thousand Yadhavas”. They would contend that this community is a distinct and separate community capable of being ascertained at any time. They would further contend that the temples in question are private temples of that community. They would further contend that the trust is purely a private trust. They would contend that this community is a distinct and separate community capable of being ascertained at any time. They would further contend that the temples in question are private temples of that community. They would further contend that the trust is purely a private trust. The second defendant being the wife of the deceased Lakshmana Konar son of Palaniandi Konar, one of the original founders of the trust, and also Arumugha Konar son of Alagappa Konar were the trustees. The said Arumugha Konar died on 1. 1979 without issues but nominating the third defendant, a pangali of his as the successor to the office of the trusteeship. Thus the defendants 2 and 3 are the trustees. After the death of Krishna Konar his wife, the first plaintiff, her mother-in-law, and Lakshmana Konar, the second defendant’s husband entered into a registered family arrangement under a deed dated 25. 1947 and in that the first plaintiff had relinquished all her rights, in the joint family properties including the trust properties. In the circumstances the first plaintiff cannot claim any right in the suit properties, nor is she entitled to question the actions of these defendants. The plaintiffs 2 to 4 have no right in the trust property and they have no locus standi to question these defendants. They denied that the plaintiffs 2 to 4 are worshippers of the deities in the temples and they contended that they do not admit that they are interested in the management of the temples. The plaint mentioned two temples are not the subject-matter of dispute, and the right of the worshippers in the said temples is not the question that arises for consideration in the suit. The suit properties because of the houses built around them have become house sites and unfit for cultivation and the cultivation has become not possible and therefore the income from the lands has dwindled. With such meagre income it may not be possible to carry out the services. Therefore, it has become necessary that these lands are sold and income-yielding agricultural lands are purchased. Thus the intended sale by these defendants to the first defendant is a bona fide act of administration of the services and thus it is for the benefit of the trust, and it is not in any way detrimental to the trust. Therefore, it has become necessary that these lands are sold and income-yielding agricultural lands are purchased. Thus the intended sale by these defendants to the first defendant is a bona fide act of administration of the services and thus it is for the benefit of the trust, and it is not in any way detrimental to the trust. The plaintiffs 1 to 4 offered low price to which these defendants did not agree and hence infuriated the plaintiffs have filed the suit, the allegation that the third defendant is a stranger to the trust is without any substance. Therefore, the suit is liable to be dismissed. S. The trial court on consideration of the several issues framed for decision in the case held that the trust is a private trust as contended by the defendants, and that the plaintiffs 2 to 4 are not necessary parties and the plaintiffs’ claim that they can file the suit as worshippers of the temple cannot be accepted. It further held that the plaintiffs’ claim that the deceased first plaintiff has executed a Will in favour of the fifth plaintiff bequeathing her right in the suit trust is not true. It also held that the contention of the defendants that under a family arrangement dated 25. 1947 the first plaintiff has lost her right in the suit trust is true. It then held that the alleged Will executed by Arumugha Konar in favour of the third defendant on 1. 1979 is true and binding on the plaintiffs. It further held that the defendants 2 and 3 are competent to execute a sale deed in respect of the suit properties and the proposed sale will be in the interest of the trust. On these findings the trial court dismissed the suit. 6. On appeal the appellate court appears to have, considering the decision rendered in O.S.No.66 of 1960 on the file of the Sub Court, Madurai, and also the evidence in the case, held that the two temples are public temples and the trust is also a public trust. It further held that the plaintiffs can maintain the suit as worshippers of the temple. On these findings the appellate court has given a decree declaring that the suit trust is a public trust. It further held that the plaintiffs can maintain the suit as worshippers of the temple. On these findings the appellate court has given a decree declaring that the suit trust is a public trust. It then held that the defendants cannot convey the trust property as without obtaining sanction from the Hindu Religious and Charitable Endowments Board. However the appellate court has not given a decree of injunction prayed for. The appellate court then held that the plaintiffs are not entitled to possession. Thus the appellate court granted the only relief of declaration that the suit property is a public trust and in other respects it dismissed the suit. 7. Aggrieved, the defendants have filed the appeal against the decree declaring the suit trust as public trust. The plaintiffs also have filed cross objections against dismissal of the suit regarding the other reliefs prayed for. & Now in the appeal, Mr.T.L.Ram Mohan, learned counsel appearing for the appellants-defendants contends that the trial court only on the basis of a finding in an earlier suit O.S.No.66 of 1960 holding that the suit temples viz., Sri Ramaswamy temple and Sri Navaneethakrishnaswamy temple are public temples, held in this case also that the suit temples are public temples, but in the appeal against the decision in O.S.No.66 of 1960 a Division Bench of this Court has set aside the said finding of the trial court in O.S.No.66 of 1960 and has held that the question whether the temples were private temples or public temples has to be decided by the Deputy Commissioner, Hindu Religious and Charitable Endowments, and therefore the finding of the trial court in this case that the suit temples are public temples is erroneous in law. 9. On a perusal of the copy of the judgment in O.S.No.66 of 1960 which has been marked as Ex. A-14 in this case I find that that suit was filed for framing of a scheme for the administration of the said temples and for accounts by the then trustees of the temple, and that suit was filed on the allegation that the temples were private temples. It was contended by the defendants that the temples were public temples and in view of the provisions of the Hindu Religious and Charitable Endowments Act the suit was not maintainable. It was in these premises the trial court held that the two temples were public temples. It was contended by the defendants that the temples were public temples and in view of the provisions of the Hindu Religious and Charitable Endowments Act the suit was not maintainable. It was in these premises the trial court held that the two temples were public temples. 10. But the present case does not relate to the administration of the temples. It purely concerns with the trust created by Palaniandi Konar and Alagappa Konar. This position is made clear by the defendants themselves in paragraph 8 of the written statement filed by defendants 2 and 3 stating that, "The plaint mentioned Sri Ramaswamy and Sri Navaneethakrishnaswamy Koil is not the subject-matter of dispute and the right of a worshipper of the said temple is not the question that arises for consideration in this suit." Of course the plaintiffs have filed the suit on the basis that the suit temples are public temples, and as regards this the defendants would say in the written statement that they are private temples, but from the facts stated by the defendants themselves in the written statement it is apparent that the temples are public temples and the defendants would say that these are private temples just for the sake of denying the plaint allegations that the temples are public temples. According to the plaintiffs the two temples are ancient temples and they belonged to the "Thousand yadhavas’ community which forms a considerable section of the Hindu Community,. In paragraph 2 of the written statement the defendants 2 and 3 would state that, “It is true that the parties belong to ‘Thousand Yadhavas’. It is also true that the temples of Sri Ramaswamy and Sri Navaneethakrish-naswamy situated in North Masi Street belongs to the said Thousand Yadhavas who are mainly residing in Madurai and other villages in Madurai District. The said thousand Yadhavas Community is a distinct and separate community, capable of being ascertained at any time. The temple in question is only a Private temple of the said Community. By no stretch of imagination the said temple can be called as a public temple.” Thus the defendants admit that the temples belonged to ‘Thousand Yadhavas’ community. They further admit that the temples are old ones. It is undeniable that ‘Thousand Yadhavas’ community is a section of the Hindu Community. By no stretch of imagination the said temple can be called as a public temple.” Thus the defendants admit that the temples belonged to ‘Thousand Yadhavas’ community. They further admit that the temples are old ones. It is undeniable that ‘Thousand Yadhavas’ community is a section of the Hindu Community. It is also undeniable that the members of this community use the two temples as of right as a place of public religious worship. Therefore clearly the suit temples come under the definition of “temple” in Sec.6(20) of the Hindu Religious and Charitable Endowments Act, hereinafter referred to as the Act, and therefore it is a religious institution within the meaning of Sec.6(18). Therefore, even from the pleadings of both sides it is manifest that the temples are public temples or public religious institutions, and hence there is no question of going to the Hindu Religious and Charitable Endowments Board for decision whether the temples are public temples or private temples. In the written statement no plea has been raised that the court has no jurisdiction to try the suit and that the character of the temples should be determined by the Board under Sec.63 of the Act, or thatSec.108of the Act operates asa Bar to the civil court entertaining the suit. The second defendant as D.W.I has unequivocally rather asserted that “in both the temples the Hindus worship Kallala-gar, and it is not correct to say that only the Yadhavas worship and the temples belong to them only”. In Thayoth Puthiyapurayil Ayisomma v. Choolal Puthiyapurayil Kunhali and others, (1957)1 M.L.J. 5 :A.I.R. 1957 Mad. 674, a Division Bench of this Court has clearly laid down that the civil court has jurisdiction to decide whether a particular institution is a public temple or not when such question arises incidentally to other disputes in the suit before the court. As already stated above, the present suit is not for a declaration that the two temples are public temples or private temples, but for declaration that the suit trust is a public trust and for injunction against the defendants and for delivery of the trust properties to the plaintiffs. As already stated above, the present suit is not for a declaration that the two temples are public temples or private temples, but for declaration that the suit trust is a public trust and for injunction against the defendants and for delivery of the trust properties to the plaintiffs. Hence the question whether the two temples are public temples or private temples only incidentally arises, and therefore in view of the Division Bench decision referred to above the question whether the temples are public or private can be as an incidental issue decided in this suit. The facts stated above clearly leads to one and only conclusion that the temples are public temples. Thus I find no merit in the argument of Mr. Ram Mohan. 11. Now, the question to be considered is whether the first appellate court is not correct in declaring that the suit properties are trust properties endowed in favour of the temples in question. I think there is absolutely no difficulty in holding that the first appellate court is correct in its finding. The three trust deeds Exs.A-2, A-3 and A-4 respectively dated 2. 1908, 26. 1911 and 112. 1915 clearly read that the suit properties have been endowed to the temples in question. It is clearly said that the trustees shall perform with the income from the suit properties the services in connection with the ‘Kotu Thiruvizha’ in Nava-neethakrishnaswamy temple, Thirukkan during Kallalagar’s return journey in Oor Thoppu in Tallakulam, Madurai Taluk at the time of Chitra Festival and other trusts specified in these documents. The document further provides that in case the trustees fail to perform the services the Devast-hanam of ‘Thousand Yadhavas’ can take possession of the properties and itself perform the services. The recitals in the said documents further show that the entire amount shall be utilised for the said services, and they do not speak of any surplus amount. It is therefore manifest that the suit properties are trust properties endowed to the temples. This is the declaratory relief sought for in the suit which has been granted by the first appellate court against which defendants 1 to 3 have filed the second appeal. In fact for this declaration the question whether the two temples are public temples or private temples is immaterial. Therefore there is absolutely no merit in the second appeal. This is the declaratory relief sought for in the suit which has been granted by the first appellate court against which defendants 1 to 3 have filed the second appeal. In fact for this declaration the question whether the two temples are public temples or private temples is immaterial. Therefore there is absolutely no merit in the second appeal. 12, Coming to the cross objections, we have to consider whether the first appellate court is wrong in denying the relief of injunction to the plaintiffs against the defendants. If the temples are private temples and the trust is a private trust, then the plaintiffs may not be entitled to the injunction unless they show mala fide on the part of the defendants in selling the trust properties. But we have seen above that the temples are public temples and they are therefore religious institutions within the meaning of the Hindu Religious and Charitable Endowments Act. Therefore, the endowment of the properties to the temples are also public trusts. This being the position the question is whether the defendants will be entitled to sell the trust properties. The temples being religious institutions and therefore the trust being public trusts they would be governed by the provisions of the H.R. & C.E. Act. Sec.34 of the Act lays down inter alia that any sale of any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution. It is not the case of the defendants that they have obtained such sanction from the Commissioner. Therefore any sale by them would be null and void. In this view of the matter the plaintiffs will be entitled to the injunction prayed for, but this is subject to the decision of the question whether the suit filed by the plaintiffs is not maintainable as contended by the defendants. 13. Regarding the maintainability of the suit by the plaintiffs, it is not in dispute that the deceased first plaintiff was and the other plaintiffs are members of the ‘Thousand Yadhavas’ community. It is common case that the suit temples belong to that community. The plaintiffs claim that the first plaintiff was and the other plaintiffs are worshippers in the temples. The suit has been filed by the plaintiffs representing the entire members of the community. It is common case that the suit temples belong to that community. The plaintiffs claim that the first plaintiff was and the other plaintiffs are worshippers in the temples. The suit has been filed by the plaintiffs representing the entire members of the community. In the written statement it is just stated that the plaintiffs are not worshippers. But the fact that the plaintiffs are the members of the community to which the temples belong and they have filed the suit on behalf of themselves and also representing the other members of the community complaining that the defendants are trying to alienate the said trust properties which would be detrimental to the interest of the temples, would unequivocally show that they are indeed worshippers in the temples. We have seen above that the trust is created endowing the properties to the temples for the purpose of doing certain services (Kattalais) in respect thereof. Therefore as worshippers of the temples the plaintiffs are certainly interested in the administration of the trust. It is now well settled law that worshippers in the temples can maintain suit for the purpose of preserving the properties endowed to the temple or otherwise. In Amir Jan v. Shaik Sulaiman Sahib and others, (1968)2 M.L.J. 559 , Alagiriswami, J. has laid down that, “There is ample authority for the proposition that where the trust property has been alienated by the trustee and is in wrongful possession of a trespasser, it is open to any worshipper to maintain a suit even for possession, if there is no lawful trustee.” In Bishwanth and another v. Sri Thankur Radha Bailabhji and others, A.I.R. 1967 S.C. 1044, as regards alienation effected by the shebait acting adversely to the interest of the idol, the Supreme Court said that, “...Even a worshipper can file the suit, the reason being that the idol is in the position of a minor and when the person representing leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad-hoc power of representation to protect its interest.” It has been similarly held in Periya Guruswamy v. The Kaliamman Koil of Arunthathiar, A.I.R. 1971 Mad. 278 also. 278 also. Therefore as the worshippers of the temples the plaintiffs can maintain the suit even if they had no right under the endowment itself as heirs of the founders of the trust as claimed by them which the defendants would deny. 14. What remains in the question whether the plaintiffs will be entitled to possession of the suit properties,. If the defendants with the mala fide intention have disposed of or are attempting to dispose of the trust properties, may be the plaintiffs can seek possession of the property for the purpose of safeguarding the interest of the temples. But if no such mala fide is proved, then there will be no justification in the plaintiffs’ claim for possession of the trust properties. According to the plaintiffs the defendants are trying to dispose of the trust properties without any right with a view to make unlawful gain for themselves and not with any bona fide intention to do good to the temples. But the defendants would contend that the present trust properties have become house sites, and cultivation therein has become impracticable and therefore there is no sufficient income from the properties to do the services mentioned in the trust deeds, and the trust deeds themselves enable the trustees to sell the properties if the income from the properties is not sufficient for doing the services and purchase new properties which would yield sufficient income. There is no doubt that there is such a provision in the trust deeds. In fact a reading of Ex.A-4 dated 112. 1915 shows that the founders of the trusts themselves have sold some of the then trust properties and instead have purchased other properties for the trust. The second plaintiff as P.W.I has clearly admitted as follows: & “It is true that the trust properties are changing into house sites. Therefore it is true that there is no income from the trust properties. If the trust is to be preserved then it is necessary to sell these properties and purchase other properties which would yield income.” It is manifest from these that no mala fide can be attributed to the defendants 2 and 3 in their agreement with the first defendant to sell the trust properties. If the trust is to be preserved then it is necessary to sell these properties and purchase other properties which would yield income.” It is manifest from these that no mala fide can be attributed to the defendants 2 and 3 in their agreement with the first defendant to sell the trust properties. However, as stated above, in view of Sec.34 of the Hindu Religious and Charitable Endowments Act, for alienation of the trust properties the sanction of the Commissioner is to be obtained, and when such sanction is sought for, the Commissioner would decide as to whether the proposed alienation would be necessary or beneficial to the institution viz., the temples. In this situation I do not think that the claim for possession of the suit properties by the plaintiffs from the defendants is justified. 15. In the result, the decree passed by the first appellate court declaring that the suit trust is a public trust is confirmed. There will be a further decree for injunction restraining the defendants 2 and 3 from alienating the trust properties without obtaining sanction from the Commissioner under Sec.34 of the Hindu Religious and Charitable Endowments Act. The claim by the plaintiffs for possession of the trust properties is dismissed. In these terms, the second appeal is dismissed, and the cross objection is partly allowed. There will be no order as to costs in both the appeal and the cross objection.