Abdul Hadi, J.
1. Having failed in both the courts below plaintiffs 1, 2 and 4 to 7, representing "the Hindu general public in the City of Rajapalayam" have filed this second appeal. Their suit O.S. No. 93 of 1978 on the file of the Additional District Munsif, Srivilliputtur is for declaration that the suit institution is a "public religious institution belonging to the Hindu public in general as against the exclusive claim by the defendants on behalf of Rajus of Singaraja Kottai, Rajapalayam with a right of entry for all the Hindu citizens into it for worship in pujas according to the usage by Panda-rams of the "temple" (a temple called Arulmigu Mariamman Koil, Pudupalayam) and for consequential injunction.
2. The pleas of the plaintiffs are briefly as follows: The origin of the said institution is unknown. However, the deity was granted by Karnatic Rajas in T.D. No. 182 of Sambandapuram village (now called as Pudupalayam). The grant was devadayam grant. In the year 1865, the T.D. was confirmed. After such confirmation, the institution has been under the management of Poojaries, otherwise called as Pandarams, the descendants of the registered holders of the grant. All communities participated in the conduct of the festivals in the suit institution. However, the citizens have got the right of entry into the temple for worship and it is a place of public religious worship for devotees of all castes and sections of Hindu Public. The defendants filed a suit in O.S. No. 100 of 1975 on the file of Sub Court Ramnad at Madurai for a declaration that the suit institution was a denominational one with a right of management for them. The authorities under the Tamil Nadu Hindu Religious and Charitable Endowments Act alone were defendants in the said suit. But, the members of the public other than the Rajus were not parties to the suit, nor was there a publication under Order 1, Rule 8, C.P.C., binding the Hindu citizens of Rajapalayam. In the suit, declaration of title to the denomination of Rajus over the suit temple was not granted, but the right of management in the temple was granted to them, while decreeing the suit. The decree is not binding on other communities. The 2nd defendant got himself appointed as trustee by the Assistant Commissioner, Ramanathapuram at Madurai since 1969 or so. Formerly, the 2nd defendant's father was trustee of the temple on appointment by area committee.
3. The defence of the defendants, who represent Rajus, residing at Singarajakottai, Rajapalayam is as follows: The temple had been constructed by the said Rajus and consecrated for exclusive worship by and for the spiritual benefit of the said Rajus, who formed a religious denomination and it has been in their exclusive administration and management beyond living memory for over a century. Members of the other communities were allowed to worship with their permission. The said denomination had been electing among themselves trustees for the administration of the temple. Such representatives were "invariably" recognised by the Endowment Department. The present suit is barred by the principles of resjudicata in view of the decision in O.S. No. l00 of 1975. The defendants in O.S. No. l00 of 1975 claimed the public right which alone is claimed in the present suit. The civil court has no jurisdiction to try the suit in view of Section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act.
4. Mainly there were two issues decided by the trial court. One is, "Whether the suit temple is a public or denominational temple?" The other is, "whether the suit is barred by res judicata by reason of the judgment in O.S. No. 100 of 1975 on the file of Sub Court, Ramanathapuram?" The trial court, after a lengthy discussion in paragraphs 7 to 39 of its judgment, gave the finding that the suit temple was not a public temple, but it was a denominational temple belonging to Singarajakottai Rajus. On the other main issue, the trial court held that the suit was barred by res judicata, by reason of the judgment in O.S. No. 100 of 1975. The lower appellate court in A.S. No. 14 of 1982 did not go into the abovesaid question of res judicata, but went into the other question whether the suit temple is a public temple or a denominational temple at length in paragraphs 16 to 25 of its judgment and concurred with the finding of the trial court and, therefore, it dismissed the appeal filed by the plaintiffs.
5. The learned Counsel for the plaintiffs 1, 2 and 4 to 7-appellants initially submitted that both the courts below made a wrong approach to the case on the wrong view that a denominational temple was a private temple and not a public temple. That is why, according to the learned Counsel, the courts below have wrongly applied decisions which have only pointed out the distinction between the private temple and public temple. According to the learned Counsel all that the plaintiffs pray is that the suit temple is a public temple, open to all Hindu communities as of right, for worship as well as management, and not a denominational temple, exclusively for the benefit of the abovesaid Rajus, a section of the public. The learned Counsel also in this connection drew my attention to the decision in Venkataramana Devaru v. State of Mysore . There, the Supreme Court, after
Holding that the suit temple therein was a public temple, went into the question whether it was yet a denominational institution for the benefit of Gowda Saraswath Brahmins and came to the conclusion that it was so. Further, a Division Bench of this Court has also held in the judgment dated 11.8:1960 in M.R. Venkatachalapathy and Anr. v. The Deputy Commissioner, Hindu Religious and Charitable Endowments (Administrative Department), Thanjavur and Anr.W.P. Nos. 804 and 805 of 1957, in relation to the temple in question in the said case thus:
That it is a public temple as defined by the Act in no way affects the determination of the question, is it a denominational temple.... To on statute a denominational temple the use of the temple and the worship therein need not be confined to the members of that denomination. But, if the temple belonged to the religious denomination of Sourastras and if that community was entitled to manage the temple, it would be a denominational religious institution.
In view of the abovesaid two decisions, it is no doubt clear that the denominational temples are also public temples which fall within the definition of the term "temple" under Section 6(20) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as 'the Act'), which runs as follows:
(20) 'Temple' means a place by whatever designation known, used as a place of public religious worship, and dedicated to, or for the benefit of, or used as of right by, the Hindu community or any section thereof, as a place of public religious worship.
Further, the question whether a temple is a public one (coming under the Act) or a private one (not coming under the Act), can be decided only by the Deputy Commissioner, H.R. and C.E. Department under Section 63(a) of the Act, and not by the Civil Court. The decisions like State of Bihar v. Biseshwar Das , Bhagwan Din v. Har Saroop A.I.R. 1940 P.C. 7 : (1940) 1 M.L.J. 1 : 185 I.C. 305 : 67 I.A. 1 and Chakkarai Chettiv. Board of Commissioners H.R. & C.E., 67 L.W. 830, relied on by the court below only dealt with the question whether the temple in question was a private one or a public one. So, in this regard, I am also of the view that the approach of the courts below is not correct.
6. The term "denominational temple" no doubt is not defined under the Act, though Section 107 of the Act says, "nothing contained in this Act shall, save as otherwise provided in Section 106 and in Clause (2) of Article 25 of the Constitution, be deemed to confer any power or impose any duty in contravention of the rights conferred on any religious denomination or any section thereof by Article 26 of the Constitution". Section 51 of the Act also no doubt refers to a religious denomination. Anyway, though there is no definition of the term "religious denomination" either in the Act or in the Constitution of India, (which gives certain fundamental rights to such religious denominations under Article 26 thereof), it has been judicially interpreted by the Supreme Court in several decisions like Commissioner H.R. & C.E. v. L.T. Swamier and the above referred to Venkataramana
Devaru v. State of Mysore A.I.R. 958 S.C. 255.
7. Anyway, in the present case, the learned Counsel for the appellants did not seriously contend that the abovesaid Rajus did not belong to any such "religious denomination", but only contended that the said denomination of Rajus had no exclusive right to manage the suit temple or had right to exclude other communities of Hindus from worship in the temple as of right. In other words, he contends that the suit temple is not a denomination-temple at all, belonging to any religious denomination, but belonging to the Hindu public in general and would come under the terms "temple" as defined under Section 6(2) of the Act.
8. Article 26 of the Constitution of India says as follows:
26. Freedom to manage religious affairs: Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion:
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
It is well-known that this Article guarantees the abovesaid fundamental rights to every religious denomination. But, as the Supreme Court itself has pointed out in Durgah Committee v. Hussain Ali , Article 26 does not create rights in any
denomination or its section, which it never had,. It merely safeguards and guarantees the continuance of the rights, which such denomination or its section had. The relevant observation of the Supreme Court in the said decision is as follows:
In other words, if the denomination never had the right to manage the properties endowed in favour of a denominational institution as for instance by reason of the terms on which the endowment was created, it cannot be heard to say that it has acquired the said rights as a result of Article 26(c) and (d), and that the practice and custom prevailing in that behalf which obviously is consistent with the terms of the endowment, should be ignored or treated as invalid and the administration and management should now be given to the nomination. Such a claim plainly inconsistent with the provisions of Article 26. If the right to administer the properties never vested in the denomination or had been validly surrendered by it or has otherwise been effectively and irretrievably lost to it Article 26 cannot be successfully invoked.
It should also be observed that the terms "conferred" used in Section 107 of the Act quoted above, may not be quite appropriate since as stated above, Article 26 does not create or confer the abovesaid rights, but only "safeguards and guarantees them as fundamental rights. For example, one of the rights which is guaranteed to a religious denomination under Article 26(a) is to "establish and maintain" institutions for religious and charitable purposes. So, this Article 26(a) reiterates that if such a right to "establish and maintain" inhered in a religious denomination just prior to the constitution, it is safeguarded and guaranteed to it as a fundamental right. But, if a religious denomination only "maintained" such an institution, but did not itself "establish" it, then it cannot be said that the said denomination is conferred, the abovesaid fundamental right under Article 26(a). It is in these lines, the argument of the learned Counsel for the appellants proceeds. That is why, he relies on the following passage in Azeez Basha v. Union of India , which no doubt deals with a case under Article 30 of the Constitution of India, which inter alia states "all minorities whether based on religion or language shall have the right to establish and administer educational institutions of their choice
It is to our mind quite clear that Article 30(1) postulates that the religious community will have the right to establish and administer educational institutions of their choice meaning thereby that where a religious minority establishes an educational institution, it will have the right to administer that. An argument has been raised to the effect that even though the religious minority may not have established the educational institution, it will have the right to administer it, if by some process it had been administering the same before the Constitution came into force. We are not prepared to accept this argument. The Article in our opinion clearly shows that the minority will have the right to administer educational institutions of their choice provided they have stablished them, but not otherwise. The Article cannot be read to mean that even if the educational institution has been established by somebody else, any religious minority would have the right to administer it because, for some reason or other, it might have been administering it before the Constitution came into force. The words "establish and administer" in the Article must be read conjunctively and so read it gives the right to the minority to administer an educational institution provided it has been established by it.
9. No doubt, on the other hand the learned Counsel for the respondents sought to argue that the said decision only related to Article 30 and the abovesaid passage would not apply to the present case, which relates to Article 26. But, as pointed out by the learned Counsel for the appellants, the abovesaid decision itself makes it clear that the abovesaid ruling would apply to a case under Article 26(a) also because the Supreme Court itself has observed in the abovesaid decision as follows:
We should also like to refer to the observations in Durgah Committee v. Hussain Ali . In that case this Court observed
while dealing with Article 26(a) and (d) of the Constitution that even if it be assumed that a certain religious institution was established by a minority community it may lose the right to administer it in certain circumstances. We may in this connection refer to the following observations at p.414 (of S.C.R.); (at P.1416 of A.I.R.) for they apply equally to Article 30(1):
If the right to administer the properties never vested in the denomination or had been validly surrendered by it or had otherwise been effectively and irretrievably lost to it, Article 26 cannot be successfully invoked.
10. So, the contention of the learned Counsel for the appellants is that the judgments of the Courts below are contrary to the decision in the above referred to Azeez Basha v. Union of India , since they declare the suit temple as a denominational temple solely on the ground that the abovesaid Rajus were in management of the temple for a very long period, even though the temple had been there long before they assumed management thereof, and there is no evidence as to who established it.
11. No doubt, the trial Court observes that as per the evidence of D.W.2, the abovesaid Rajus were in management of the suit temple "for the past 47 years". It also therefore holds that the said Rajus were in management "for several decades". Likewise, the first appellate court also finds that the said Rajus are in management of the temple "for the past 50 years or more", and "at least for the past sixty years and more." Further, as per Exs. B-5 and B-6 dated 12.3.1880, Ex.B-23 of the year 1902, Ex.B-39 of 1954 and certain other documents and the oral evidence of P. Ws.2 and 3 also, one may come to a decision that the abovesaid Rajus were in actual management of the temple, say, from 1880 onwards, that is, roughly for above 100 years.
12. But the emphasis of the learned Counsel for the appellants, is, that that by itself would not be enough to hold that the suit temple is a denominational temple exclusively belonging to the abovesaid religious denomination of Rajus, since there is admittedly no evidence as to who established or founded the said temple and since admittedly the temple was in existence even much prior to 1880, or rather even prior to 1807, as shown by Exs.A-21 and A-22 documents. Ex.A-21, dated 4.5.1865 is an inam title deed granted to the manager for the time being of this temple and Ex.A-22, dated-22.4.1865 is the inam fair register extract. In column 14 of Ex.A-22 (relating to the inam entry in the register according to regulation 31 of 1802 or in the permanent settlement accounts, and relationship of persons so entered to the original guarantee, it is recited, "In F.1213 Mariamman Kovil Inam.. In F.1216 Mariamman Kovil Inam Virabhadra Pandaram". This shows that the suit temple must have been established before 1807, and the abovesaid Virabhadra Pandaram was the successor to the original grantee. Column 15 therein refers to Mariappa Pandaram and Sankaralinga Pandaram as successors in fasli 1254 (in about 1848). Then at the time of the enquiry by the Inam Commission, 1865, Sankaralinga Pandaram and Velayutha Pandaram alone are shown as owners. 12. In paragraph 17 of the written statement, the defendants also state as follows:
It is significant that the entries in the Inam Fair Register clearly show that the inam lands had been granted in favour of the deity and not in favour of the Pandarams....
Further, Ex.B-82 is the judgment in O.S. No. 13 of 1976, the suit in which the Pandarams claimed hereditary trusteeship as against the defendants-Rajus who claimed that they were hereditary trustees. That suit no doubt was dismissed, the trial court there holding that the defendants-Rajus were only trustees appointed by the Endowment Department. As against the said judgment, no doubt, the abovesaid Pandarams filed A.S. No. 530 of 1983 and the Judgment therein is Ex.B-112 marked as one of the exhibits in this appeal. In the said A.S. No. 530 of 1983, there was also cross objection by the defendants-Rajus. But the said cross-objection was withdrawn. The said appeal also was no doubt dismissed. But, that the learned Counsel for the appellants' points out is that Ex.B-82 also finds that the grant was only in favour of the deity and that Ex.B-112 also shows that "persons incharge" at the time of the inam survey had been shown as one Sankaralinga Pandaram and Velayutha Pandaram, described as worshipers. Further, the learned Counsel for the appellants also points out that in Ex.B-82, it is also observed that "it is admitted fact that H.R. & C.E. Department appointed defendants 3 to 5 and their ancestors as trustees to the suit temple. Under Ex.B-120 one K.Ramasami Raja was appointed as trustee for a period of 5 years in 1930 to the suit temple by the Commissioner, H.R. & C.E. Department. Further, he also draws my attention to the following admission of D.W.I, the 2nd defendant:
(Editor: The text of the vernacular matter has not been reproduced.
13. From all these, the learned Counsel for the appellants contends that the courts below erred in not considering the abovesaid evidences and has wrongly drawn inference, from the mere management of the suit temple for the abovesaid several decades, that the temple was not only managed by the said Rajus even earlier, but was also brought into existence or established by them and owned by them, applying "the presumption of lost grant." The said counsel further submits that the courts below did so, despite the fact that they specifically held that there was no evidence as to who founded the temple and when it was founded and despite the fact that respondents also admit that the origin of the temple was not known. On the other hand, the learned Counsel for the respondents relied on the decision in Ambika Prasad v. Ram Ekbal Rai A.I.R. 1966 S.C. 605 and the decision rendered by two different Division benches of this Court one in Rajagopaller v. Commissioner H.R. & C.E. 84 L.W. 86 and another to the abovesaid W.P. Nos. 804 and 805 of 1957, referred to above.
14. In the above referred to Ambika Prasad v. Ram Ekbal Rai A.I.R. 1966 S.C. 605, no doubt it has been held as follows:
Now, if a thing or a state of things is shown to exist, an inference of the continuity within a reasonably proximate time both forwards and backwards may sometimes be drawn. The presumption of future continuance is noticed in illustration (d) to Section 114 of the Indian Evidence Act, 1872. In appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this section, though on this point the section does not give a separate illustration. The rule that the presumption of continuance may operate retrospectively has been recognised both in India.... and England.... that there is no rule of evidence by which one can presume the continuity of things backwards cannot be supported. The presumption of continuity weakens with the passage of time. How far the presumption may be drawn both backwards and forwards depends upon the nature of the thing and the surrounding circumstances.
But, it should be noted that even assuming that in the present case such inference of continuity of state of things backwards may be drawn that can relate only to, if at all, the management of temple by the Rajus. But, that cannot allow the Court to infer the establishment of temple by them. In Assistant Commissioner H.R. & C.E., Salem etc. v. Nattamai K.S. Ellappa, etc. 100 L.W. 240 at 257, Srinivasan, J., has also observed as follows:
The case of the plaintiffs that they have been continuously in management of the temple from 1933 onwards has been proved beyond doubt. But, there is no acceptable evidence to prove that the temple was founded by the members of the community. Learned Counsel for the respondents invites this Court to draw an inference that the temple was established by the members of the community from the fact that the management and administration have been continuously with the members of the community for over 50 years. The temple is claimed to be 200 years old by the plaintiffs. The first plaintiff is only 56 years old and no other elderly person has been examined to speak about any fact relating to a prior period. It is not possible to draw an inference of the establishment of the temple by the community from the fact the members of the community have been managing the temple for about 50 years.
So, an inference of the establishment of the suit temple by the respondents-Rajus cannot be drawn in the present case also. If that is so, they cannot claim that the suit temple is a denominational temple exclusively belonging to them. Even from the abovesaid passage extracted from Ambika Prasad v. Ram Erkbal Rai A.I.R. 1966 S.C. 605, an inference is possible backwards only with reference to the management of the temple, if at all.
15. Even regarding the management, the learned Counsel submits that it cannot be said that the management vested with the respondents-Rajus continuously without interruption for several decades. In the light of the abovesaid evidences, the learned Counsel for the appellants points out that in later periods, particularly from 1939 as spoken to by D.W.I himself, the Rajus were in management only by virtue of appointment orders passed by the endowment department and that hence, they cannot claim the said right of management as of right. I also find that as against the following plea in paragraph 18 of the plaint, there is no specific denial in the written statement:
The second defendant got himself appointed as trustee by the Assistant Commissioner, Ramanathapuram at Madurai since 1969 orso. Formerly, the second defendant's father was trustee of the temple on appointment by area committee
Paragraph 21 of the written statement, which deals with paragraph 18 of the plaint, after denying certain other allegations in the said paragraph 18, only as generally "the several averments in para XIII of the plaint are highly exaggerated and they are all denied. "Further, it is the same 2nd defendant (as D.W.I) who deposed as extracted above
(Editor: The text of the vernacular matter has not been reproduced.
Even earlier to 1951, from 1939, when suggestion was put to him that the Endowment Board appointed the trustees, he only said that he did not know. He was the trustee in 1969 or so and his father was trustee earlieri as per the abovesaid allegation in the plaint which has not been denied specifically. So, he would have known, at least by having seen the relevant records, how the trustees for the suit temple came into office then. Yet, he did not assert that there was no such appointment prior to 1951. He only evasively deposed that he did riot know.
16. According to the said Counsel, even before the commencement of the Constitution, the said Rajus lost their right to manage the temple and that hence, the said right cannot revive after the constitution pursuant to Article 26. In this connection, he relies on the abovesaid passage quoted in Durgah Committee v. Hussain Ali , particularly, the last sentence therein. He also relies on the following passage in State of Rajasthan v. Sajjan Lal :
There can, therefore, be no doubt that any right which the Jains or any one of the two Jain denominations, namely, the Swetambars or Digambers or both, may have had in the temple or in its management was lost in the pre-constitution period and is now vested in the State of Rajasthan.
In view of these decisions of the Supreme Court, I hold that the contention of the said counsel is correct.
18. Even in paragraph 3 of the written statement, it is only stated that the representatives elected by the Rajus as trustees "were invariably recognised by the Endowments Department (emphasis supplied). This shows that the alleged elected trustees were not recognised by the said Department at least some times.
19. Even with reference to the above referred to Rajagopaller v. Commissioner H.R. & C.E. 84 L.W. 86 and the judgment in W.P. Nos. 804 and 805 of 1957, I must state that there the finding was that the temple was managed throughout by the community in question therein. But, even such a factual finding is not there in the present case. Further, I find that in T.V. Mahalinga Iyer v. The State of Madras , it has been held by the Supreme Court thus:
It is undisputed law that so far as Tamil Nadu is concerned, there is an initial presumption that a temple is a public one, it being upto the party who claims that it is a private temple to establish that fact affirmatively.
No doubt, this observation relates to a case where the dispute is whether the temple is a public temple or private temple and not as in the present case. However, I think the said principle could be applied even where the dispute is whether the temple is denominational temple or non-denominational temple though both come under the same category public temple, or "temple" as defined under Section 6(20) of the Act.
20. One other argument of the learned Counsel for the respondents can also be adverted to now. The said argument is that there is neither plea nor proof of dedication to the general public and hence, the temple is not a public temple. But, this argument also has no merit. After going through the plaint, it cannot be said that there is no such plea. Further, even according to the case of the defendants, dedication to a religious denomination, that is, dedication to a section, of the public is there. When such is the case, it does not lie in the mouth of the defendants to say that there was no dedication to public. That apart, the plaintiffs in the present case never pleaded that the suit temple was either a private one or denominational one to start with, but that it became generally public temple because of dedication. Only in such cases, the abovesaid plea or proof may be necessary. On the other hand, the plaintiffs' case is that the suit temple was never a denominational temple. All these apart, I have already held, relying on the abovesaid Supreme Court decision, that there is an initial presumption that a temple is a public one.
21. The next question to be decided is no doubt the abovesaid question of res judicata. Here also, I agree with the learned Counsel for the appellants contending that the decision in O.S. No. 100 of 1975 could not be a bar of res judicata to the present suit. First of all, the present plaintiffs were not parties to O.S. No. l00 of 1975 or to the subsequent appeals therefrom. In fact, they filed I.A. No. 548 of 1976 in O.S. No. 100 of 1975 for impleading themselves as defendants therein. But, the said application was dismissed, holding that the remedy of the present plaintiffs (proposed parties therein) was only to file a separate suit. Further, the present plaintiffs also tried for consolidation of the present second appeal with S.A. No. 1946 of 1979, which arose out of the abovesaid O.S. No. 100 of 1975. That petition for consolidation also was dismissed. Further, S.A. No. 1946 of 1979 cannot be considered as having become final since the appellants themselves have filed C.M.P. No. 6580 of 1988 in the Supreme Court for grant of leave to file S.L.P. against the judgment in S.A. No. 1946 of 1979 and the same is pending. Further, on account of the pendency of the said C.M.P., the Supreme Court has requested this Court to dispose of this appeal early. Further, even Explanation VI to Section 11, C.P.C. will have no application to the present case. The rights of the Hindu Community are not the same as that of the Commissioner, H.R. and C.E. Department, who was the defendant in O.S. No. 100 of 1975. Therefore, there is no bar of res judicata.
22. On the other argument advanced before me, based on Section 108 of the Act also, I hold that the respondents' contention has no merit since the present suit cannot be considered as not maintainable in a civil court pursuant to Section 108 of the Act, in view of the decisions of this Court in Ananda Baliga v. Ananteswar Temple (1952) 1 M.L.J. 678 and Asarimar Samudayam v. Natarajan Asari (1973) 2 M.L.J. 306, Santhana Gopala Chettiar v. Seetharama Chettiar (1968) 2 M.L.J. 401 and the decision of the Supreme Court in Ugam Singh v. Kesrimal . In fact the defendants themselves only went to a
civil court in the earlier suit O.S. No. 100 of 1975 for a declaration that the suit temple was a denominational temple, belonging to Rajus.
23. There is also an argument by the learned Counsel for the respondents that there is no substantial question of law involved in the case and this Court should not interfere under Section 100, C.P.C. This submission also has no merit. No doubt if there was a finding by the courts below that the suit temple was established by the respondents-Rajus, there may be some substance in this argument. But, the factual finding by both the courts below is that the case of the defendants that they established the temple, cannot be accepted. If that is so, whether the temple would become a denominational temple, is clearly a substantial question of law. Further, all the abovesaid questions dealt with by me are also only substantial questions of law.
24. In the result, the second appeal is allowed, the judgments and decrees of both the courts below are set aside and the suit is decreed as prayed for. However, in the circumstances of the case, there will be no order as to costs throughout.