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393 paragraphs · 8,062 wordsKrishnaswami Ayyangar, J.—This appeal arises out of a suit instituted by the appellant Manathunainatha Desikar for an injunction against the
respondents restraining them from interfering with his possession of the suit properties jointly along with the respondents. He also prayed that he
might be put in joint possession of the suit properties; if that course was found necessary. The properties in respect of which these reliefs were
asked admittedly belong to a Siva temple situate in Jaffna in Ceylon founded by Vaithilinga, an ancestor of the parties in or about the year 1790. It
would seem that this temple dedicated to Sri Viswalinga Vaitheeswaraswami owns extensive properties in Jaffna besides the properties in suit
which are situate in the village of Meppalam in Mannargudi Taluk, Tanjore District. Before the year 1900 these lands were the property of one
Thangathachi who held apparently a widow''s estate. But in that year there was an agreement entered into between her on the one hand and
Subbayya, the then trustee of the temple, on the other, by which it was arranged that the Meppalam lands should be made over to the temple in
exchange for the temple lands in another village known as Raghunathapuram. This agreement is Ex. 14 dated 22nd April 1900 and was
immediately given effect to, though a formal deed of exchange (Ex. g) was only executed on 16th October 1909. It may be mentioned that the
lands in Raghunathapuram were gifted to the temple either by Gopala Chetti, a son of the founder Vaithilinga Chetti or by him and his wife some
time before 1840. The deeds of gift are not available, but nothing turns upon their absence so far as the present case is concerned inasmuch as it is
conceded the temple has an indisputable title to the Meppalam lands now in suit.
The appellant claimed to be entitled to joint possession of the lands in suit as a trustee of the temple along with defendants 1, 4 and 5. All of
them are descendants of the original founder Vaithilinga, but while these defendants are in the direct male lineage, the plaintiff-appellant is the
grandson of Mana-thunainatha who though born in the family of Vaithilinga had been adopted away into a different family. The adoptive mother
however was a daughter born in the family. The geneological table annexed to this judgment shows the members of this family and their descent
from the common ancestor Vaithilinga, who it was that originally founded the temple and endowed it with most of its properties. The appellant is
No. 17 in this table and his grandfather Manathunainatha, No. 14, was adopted to Kandaswami Thevar, the husband of Kanakaratnam, No. 13.
The appellant is accordingly the great grandson of Kanakaratnam who was a daughter of one of the founder''s grandsons, namely, Subbayya.
(1) VAITHILINGA CHETTIAR (d. 1828)
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| |
(2) Gopala Chettiar (d. 1840) (3) Kandappa (d. 1835)
| |
------------------------------------------------ |
| | | | |
(4) Vaithilinga (5) Selvanayagam (6) Subbayya (7) Annapoorni |
(d. 1851 issueless) (d. 1859) (d. 1872) |
| | |
(8) Dorayya (d. 1894) | |
| | |
(9) Thailammai | |
| |
---------------------------------------------- |
| | | | |
(10) Somasundara (11) Vaithinatha (12) Ponnuthurai (13) Kanagaratnam=Kandasami |
= Rajamani (d. issueless) | (Adopted Mana- Thevar |
| | thunainatha) |
| Valambal |
------------------------------ |
| | |
(14) Manathunai'' (15) Subbayya |
natha (d. 1909) (d. 1902) |
adopted to | |
Kanagaratnam | |
| | |
(16) Kandasami | |
Desikar | |
(d. 1925) -------------------------------------- |
| | | | |
| (18) Somasundara (19) Gopala (deft. 1) (20) Ramamritha |
| (deft. 2''s deceased died (deft. 3''s |
(17) Manaithunai- husband deceased husband) |
natha (plaintiff) d. Oct. 1936) |
-----------------------------------------------------------------
| | | | |
(21) Muthu (22) Subbayya (23) Viswanatha (24) Ponnusami (25) Muthukaya-
Chidambara (d. issueless) (d. issueless) | roganam
(d. issueless) | |
---------------------------- (30) Vaithilinga
| | | |
(26) Thangachi (27) Kandappa | |
(daughter) | |
---------------------------- |
| | |
(28) Ponnusami (29) Vaithilinga |
(deft. 4 died (deft. 5 died after appeal. |
after suit) his widow Legal Representatives |
is deft. 6 are respts. 6 to 8) |
|
--------------------------------
| |
(31) Swaminatha (32) Somasundara
(died issueless) (died issueless)
Two main questions, and only two, appear to have been raised and considered in the trial Court. The first of them is whether the appellant is
entitled to claim the office of trusteeship under the scheme laid down by the founder in Ex. A dated 20th April 1805. This instrument appears to be
the last will and testament of (1) Vaithilinga, the father. The document is in old colloquial Tamil. Some of the words used are not literary and are in
common use only among the illiterate. The syntax also is difficult to follow. In spite of these defects, it is not difficult to ascertain the intention of the
testator. In the opening words of the document the testator directs that the temple and its properties and the charities connected therewith should
be managed and supervised by his sons: (2) Gopala Chettiar and (3) Kandappa Chettiar, (and) the descendants in the female line from generation
to generation so long as (any member of) the family should exist. There is no mention here of the descendants in the male line. But in the closing
words, the testator makes his meaning plain by stating that his sons, his descendants in the male line and his descendants in the female line should
manage the charities actively and diligently so as not to allow the spiritual benefit earned (for the family) to depart from them. According to the
respondents, the effect of the document is this; that the testator gave a life trusteeship to his own sons, Gopala and Kandappa, and after them he
directed the office to devolve upon his descendants in the male as well as in the female line. In so far as the will gave the trusteeship to the two sons
during their lives, the provision is said to be valid, but the course of devolution of the trusteeship thereafter among his descendants as laid down in
the will is attacked as bad in law under the principle of the well-known decision of the Judicial Committee in Jatindra Mohan Tagore v. Ganendra
Mohan Tagore (1972) 9 Beng. L.R. 377. The argument is that the will purports to create a line of succession opposed to the ordinary rules of
Hindu law and involves a gift of the office of trusteeship to unborn persons. Before discussing this question which was pressed with considerable
force and learning it is necessary to clear the ground by disposing of certain other contentions based upon the views expressed by the trial Judge.
The learned Subordinate Judge is of opinion that females are wholly excluded whether born in the family or brought into it by marriage. With this
conclusion we find ourselves in agreement. But the learned Judge goes further and says that it was the intention of the testator that the succession to
the office should follow the line of succession to the property of the family, but subject to the qualification that the nearer in degree excludes the
more remote. He has accordingly disallowed the plaintiff''s claim to the trusteeship both on the ground that his grandfather having been adopted
away from, the family did not get any part of the property of the founder''s family and the plaintiff therefore inherited none; and also on the ground
that he is lower in descent than the contesting defendants 1 and 5. We are unable to find any basis in the will to support the learned Judge''s
conclusion. The testator has said nothing from which it can be said that he intended those alone among his descendants to take the trusteeship, who
inherited the family property. Nor is there any support to be found in Ex. A for the proposition that the testator intended the nearer amongst his
descendants to exclude the more remote. On the contrary, the expressed intention is that the divine grace earned for the family should be retained
in the family and shared by his descendants both in the male and the female lines and for that reason it would seem that he gave the management to
all of them. In other words, the responsibility of the management was to be. shared in order that the spiritual benefit may also be shared. It follows
that nothing could have been farther to the testator''s mind than the idea of excluding any of his descendants from participating either in the
trusteeship or in the benefit to result therefrom.
But the more important question which arises for consideration is that which relates to the applicability of the principles in Jatindra Mohan
Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 to the scheme of management laid ''down by Vaithilinga, by which the office of
trusteeship was conferred on his descendants both in the male and the female lines. Regarded as a scheme of succession regulating the descent of
property, it involves no doubt the recognition of equal and simultaneous rights in both classes of heirs, and to that extent it is opposed to Hindu law.
But is the office of the manager or Dharmakarta of a public temple, property in the legal sense of the word? Restrictions against transfers of
property in perpetuity and restrictions on the liberty of the individual to direct its devolution in a manner inconsistent with the ordinary rules of law,
have their real origin in public policy. The principle is explained by the Judicial Committee in Jatindra Mohan Tagore v. Ganendra Mohan Tagore
(1972) 9 Beng. L.R. 377 thus:
Inheritance does not depend upon the will of the individual owner; transfer does. Inheritance is a rule laid down (or, in the case of custom,
recognized) by the State, not merely for the benefit of individuals, but for reasons of public policy. (Domat 2413).
It follows directly from this that a private individual, who attempts by gift or will to make property inheritable otherwise than the law directs, is
assuming to legislate, and that the gift must fail, and the inheritance takes place as the law directs. This was well expressed by Turner L.J. in
Soorjeemonee Dossee v. Denobundo Mullick (1857) 6 M.I.A. 526 ''A man cannot create a new form of estate or alter the line of succession
allowed by law for the purpose of carrying out his own wishes or views of policy''.
The second principle of Hindu law also recognized by the Board in this case is that a gift to persons yet unborn is absolutely void. The statutory
modifications of this rule are not material in the present case and do not call for notice. It would follow as a result of the Tagore case that if the
office of trustee or manager of a temple can in law be regarded as property, the scheme of the testator, whether taken as laying down a rule of
devolution or conveying the office of trusteeship to descendants yet unborn, must be held to be bad. But if a bare right to manage the temple and
its affairs does not partake of the character of property, it is difficult to conceive how the Tagore case can come in the way of a person who is
attempting to regulate not the descent of his property but the choice of the individuals who are to hold the office of manager of a temple founded by
him. Where such is the purpose, no objection on grounds of public policy can possibly arise. In fact, schemes are framed every day by the Courts
laying down rules for the filling up in future of the office of trustee or trustees which are totally inconsistent with the law, as declared in the Tagore
case} So far as we are aware, nobody has ever suggested that such schemes are invalid or open to attack for reasons of public policy. It cannot
be pretended that in the matter of framing schemes the Courts are supreme and possess the power of transgressing the law of inheritance or the
law of gifts. It is to be remembered in this connexion that such institutions are admittedly favoured at any rate to this extent, namely, that the rules
against perpetuities and accumulations which apply to gifts and bequests in favour of private individuals, are relaxed in their case. Before we
proceed to consider this question it is desirable to joint out that from early times observations occur in the reported cases which seem to recognize
in the author of a religious or charitable trust absolute freedom to lay down his own rules of succession and management unhampered by the
general law. In Shah Ghulam Rahimatullah Sahib v. Mohamed Akbar Sahib(1976) 8 M.H.C.R. 63 which related to the office of Sujjadah of a
mosque, Sir W. Morgan C.J. in delivering the judgment of the Court is reported to have observed:
It was hardly disputed that, in cases of this land, the determination of the question of the succession depends not on the general law of property but
upon the rules which the founder of the endowment may have established, whether such rules are defined by writing or are to be inferred from
evidence of usage.
In Greedharee Doss v. Nundokissore Doss [1966)11 M.I.A. 405 the Judicial Committee approved of the following proposition of law laid down
by Sir Barnes Peacock as Chief Justice of the High Court of Bengal:
We apprehend that if a person endows a college or religious institution, the endower has a right to lay down the rule of succession, but when no
such rule has been laid down, it must be proved by evidence what is the usage, in order to carry out the intention of the original endower.
This statement was again quoted with approval by the Board in Rajah Vurmah Valia v. Ravi Vurmah Kunhikutty (1976) 1 Mad. 235 where the
actual question which fell to be decided related to the validity of a transfer of the office of trusteeship. The Karnavans of four Malabar tarwads
were under the constitution of the particular institution, namely, Tracharmana Pagoda, its Urallars and the question was whether they could lawfully
alienate their right to manage the pagoda; The High Court held that the alienation was invalid. The Privy Council affirmed the decision. The
following observations are of particular interest in connexion with the juridical character of the office of trustee. The Board observed:
The unknown founder may be supposed to have established this species of corporation with the distinct object of securing the due performance of
the worship and the due administration of the property by the instrumentality and at the discretion of four persons capable of deliberating and
bound to deliberate together; he may also have considered it essential that those four persons should be the heads of particular families resident in a
particular district open to the public opinion of that district, and having that sort of family interest in the maintenance of this religious worship which
would insure its due performance.
The Privy Council would here seem to indicate that the several trustees who held the office constituted a species of corporation: (see
Viayapurnatirtha Swami v. Vidyanidhi Tirtha Swami (1904) 27 Mad. 435 on this aspect) to which had been entrusted the duty of management by
the founder. It is clear in this case that the founder was deemed to have prescribed a method of devolution under which the senior-most members
for the time being of four families should be the managers. If this is regarded as a rule of devolution with respect to a right in property, it certainly
goes against Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 and it is re. markable that nobody ever thought of
raising the objection. In our view the decisions referred to above lend support to the appellant''s contention that the law gives to the author of
public religious trust, the privilege of prescribing, if he is so minded, a line of succession to the office of the manager, without conforming to the law
of inheritance. This principle, as we have indicated, has its foundation in the distinction that exists between heritable property over which the owner
has only a restricted power of disposition and a mere office which confers on the holder a bare right of management without any right to a
beneficial interest in the property committed to his charge. A hereditary office being something which is capable of being inherited, necessarily
involves the idea of property and must accordingly be left to be governed by the general law of inheritance. One test of property as distinguished
from a mere office may be said, to consist in this : that while the former is partible, the latter is not. We are conscious that the decisions of the Privy
Council in Ramanathan Chetty v. Murugappa Chettiar (1906) 29 Mad. 283 might be interpreted as recognising the partibility of the office of
managership of a public temple. But there the office was admittedly hereditary, and was therefore a species of heritable property to which Jatindra
Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 would be applicable : vide Gnanasambanda Pandarasannadhi v. Velu
Pandaram (1900) 23 Mad. 271. Whatever the true facts were, the Judicial Committee have since supported the decision in Ramanathan Chetty v.
Murugappa Chettiar (1906) 29 Mad. 283 on the ground that it related to private trust. In Sethuramaswamier v. Meruswamier (1917) 41 Mad.
296 where the lands attached to a religious office held by the head of a mutt was held impartible, the Board observed:
With regard to what are called private charities, such as endowments for the support of the family idol, the law, as laid down by various decisions
in India, and apparently accepted in one case by the Privy Council, Ramanathan Chetty v. Murugappa Chettiar (1906) 29 Mad. 283 is that, if
there is no contrary provision in the original grant, the right of management passes to the natural heirs of the original grantee, and, if there be no
other arrangement or usage and no scheme settled by the Court, will be exercised by the managing member of the family before partition, or in turn
by the several heirs after partition.
But their Lordships'' attention has not been drawn to any case in which these decisions as to management have been applied to lands which
constitute the endowment of such a charity as those in question in this suit.
It follows that where the office is not hereditary, each succeeding trustee takes the office not as the heir of his predecessor but pro formam doni, as
a direct nominee under the rules of succession laid down or presumed to have been laid down by the founder. The respondents'' contention that
Vaithialinga''s scheme of succession except in so far as his sons were concerned failed on account of Jatindra Mohan Tagore v. Ganendra Mohan
Tagore (1972) 9 Beng. L.R. 377 is sought to be supported mainly on the authority of a Full Bench decision of the Calcutta High Court in Manohar
Mukerji v. Bhupendranath Mukerji AIR l932 Cal 791. Before referring to this case it is desirable to draw attention to the conflict of view which
had prevailed in the same Court, with a view to the understanding of the precise point of the controversy. In Gopal Chunder Bose v. Kartick
Chander Dey (1902) 29 Cal. 716 a testator after making various gifts to members of his family gave and bequeathed a sum of Rs. 20,000 for
religious worship to be carried in a pagoda established at his residential house and on land contiguous to it. He made the following provision for the
management of the pagoda:
The superintendence of the pagoda I entrust to my wife and after her death to hold it by my son Gour Mohan Dey, after his death by my daughter
and her husband Nando Doolai Bose, and their male children successively.
Regarded as a direction dealing with property rights the provision for management is undoubtedly opposed to the principle in Jatindra Mohan
Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 and was accordingly declared invalid. The High Court observed as follows: ""It was
contended before us for the respondent that we are not dealing with an actual bequest or gift of immovable property, but only with the appointment
of persons to superintend and manage the pagoda. It would appear, however, from the observations of their Lordships of the Judicial Committee
of the Privy Council in the recent, and as yet, unreported, case of Gnanasambanda Pandarasannadhi v. Velu Pandaram (1900) 23 Mad. 271
delivered on 19th December 1899, that the ruling in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 is applicable to
a hereditary office and endowment as well as to other immovable property."" The case was taken up to the Privy Council, and was disposed of by
Lord Macnaghten in a single sentence in which the decision of the High Court was approved as having given a perfectly correct interpretation of
the will, no other interpretation being possible. The decision had reference, it must be added, to a family trust, as is indeed the case with all the
Calcutta decisions to be referred to later and its effect is only to ''emphasise the applicability of Jatindra Mohan Tagore v. Ganendra Mohan
Tagore (1972) 9 Beng. L.R. 377 to hereditary offices. In Rambrama Chatterjee Vs. Kedar Nath Banerjee and Others, it was found that the
shebait-ship of a temple vested in the descendants of the founder in the male line, but his descendants in the female line had always participated in
the bhog offerings made to the idols. The right of the latter having been denied by the former, a suit was brought to enforce the Tight to participate
in the bhog offerings. Sir Asutosh Mookerjee J. who delivered the judgment of the Court, stated the question which arose for consideration as
follows:
Whether it was competent to the founder to direct that the shebaitship shall be vested in his descendants through his sons and that his descendants
through his daughters should have the right to participate in the bhog offering.
This question was answered in the affirmative. The following observations of the learned Judge appear to be apposite in the present connexion:
In the words of Lord Mansfield in St. Johns College v. Todington (1757) 1 Burr. 158 a charitable corporation in so far as it is charitable, is the
creature of the founder. On this view, Lord Hardwicke had ruled in Green v. Rutherford (1750) 1 Ves. Sen. 462 that the founder may provide for
the Government and administration of his creature and the application in perpetuity of the revenue; see also Philips v. Bury (1694) 1 Shower 360
which was ultimately decided by the House of Lords : Philips v. Bury (1694) Shower P.C. 35 and contains an elaborate review of the rights of
founders of charitable and religious trusts. This is subject to the reservation that a founder may not, unless special power has been reserved in this
behalf, after the constitution of the corporation, vary the trusts or modify the application of the endowment or its revenues.
Philips v. Bury (1694) 1 shower 360, which is a decision of the House of Lords is phrased in the legal technicalities, of the, ancient English law.
But the following sentences which sum up the position can be understood:
But private and particular corporation for charity, founded and endowed by private persons, are subject to the particular Government of those
who erect them. Therefore, if there be no visitor appointed; in all such cases of Eleemosynary Corporations, the law doth appoint the founder, and
his heirs to be visitors; they are patrons, and not to be guided by the common known laws and rules of the Kingdom; but such corporations are as
to their own affairs to be governed by the particular laws and constitutions assigned them by the founder.
The idea that successive trustees of a religious or charitable trust form a kind of corporation is here expressed and it was perhaps the self-same
idea which was echoed by the Privy Council in Rajah Vurmah Valia v. Ravi Vurmah Kunhikutty (1976) l Mad. 235 to which we have already
referred. In Mathura Nath Mukherjee Vs. Lakhi Narain Ganguly, a testator dedicated his immovable property to Ishur Debseva, and appointed
his widow to act as shebait and gave her power to appoint a successor. The widow appointed a great nephew of the testator as shebait, but the
appointee was a person not born during the lifetime of the testator. Though such an appointment would be void on the principle that the donee
must be a person in existence at the death of the testator Bai Motivahu v. Bai Mamubai (1997) (vide 24 I.A. 93) the Court upheld the appointment
on three grounds : (1) A trusteeship with power to appoint a successor is well known to Hindu law, (2) that Jatindra Mohan Tagore v. Ganendra
Mohan Tagore (1972) 9 Beng. L.R. 377 itself recognised the possibility of exception ""for which authority may be found in Hindu law or usage
and such an exception is implicit in the rule which allows the founder of a religious trust to lay down a general rule of succession to the managership
and (3) it was competent to the testator to empower a civil Court to appoint as successors from time to time persons not born. This view found
favour in Sripati Chatterjee and Others Vs. Khudiram Banerjee and Others, where the Court observed that the rule in Jatindra Mohan Tagore v.
Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 prohibiting a Hindu from creating a special line of succession unknown to Hindu law does not
apply to the ease of appointment of a shebait of a family Thakur, for an appointment to such an office creates no interest in the property. The
learned Judge said:
The appointment of a shebait therefore is obviously not a gift of any property to the shebait but it is purely an appointment to an office without, it
may be, any remuneration whatsoever.
In Promotho Nath Mukerji and Others Vs. Anukul Chandra Banerjee, decided a few days later, a Division Bench of the Calcutta High Court
consisting of Suhrawardy and Duval JJ. took a different view, but without noticing the decision in Sripati Chatterjee and Others Vs. Khudiram
Banerjee and Others, In this case it appeared that a testator made a gift of certain properties to his family idol and appointed his wife and his three
brothers as shebaits of the endowment. As to future shebaitship he made the following provision:
When you all have ceased to be, he who shall be of the Hindu persuasion and senior in age amongst your legal heirs, shall have the management
conferred upon him.
The will also contained a declaration that the testator''s brother''s possession of the shebait-ship and property was subject to the rights of the
members of the family of the original shebaits to reside in a certain house, to repair it, if necessary to get their maintenance out of the offerings to
the idol and to enjoy certain other rights. There were no emoluments or interest in the property as such attached to the office of shebait. The
learned Judges held that the provision in the will giving the she-baitship to the senior in age among the legal heirs of the testator failed as to those
who were not alive at the death of the testator. The decision was rested on the authority of the Privy Council in Gopal Chunder Bose v. Kartick
Chander Dey (1902) 29 Cal. 716 and also upon the decision of the Calcutta High Court in Kunjamani Dassee v. Nikunja Behari Das AIR 1916
Cal 20 : C.W.N. 314. These cases proceed on the principle of law enunciated in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9
Beng. L.R. 377 extended to a hereditary office by Gnanasambanda Pandarasannadhi v. Velu Pandaram (1900) 23 Mad. 271. The Court declined
to draw any distinction between a bare trusteeship and a trusteeship carrying emoluments and refused to accept the argument that Jatindra Mohan
Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 in so far as it negatived the validity of a gift to an unborn person is not applicable to
a case where a bare right of management and no property is involved. In view of the conflict of decisions the question was referred to a Full Bench
of three Judges in Manohar Mukerji v. Bhupendranath Mukerji AIR 1932 Cal 791. The case law was considered at great length by the Court and
it was laid down that Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 applied to the office of a shebait. The
headnote of the case runs as follows:
The founder of a Hindu debattar is competent to lay down rules to govern the succession to the office of shebait subject to the restriction that he
cannot create any estate unknown or repugnant to Hindu law.
A person succeeding to the shebaiti is a grantee or donee of property and his right to succeed to the office is subject to the rules that a gift cannot
be made by a Hindu to a person not in existence at the time of the gift.
Rules for succession to the office of shebait are rendered invalid by reason that they provide for the office to be held by some among the heirs of a
founder to the exclusion of others in a succession differing from the line of Hindu inheritance.
The correctness of the Full Bench decision was later affirmed by the Privy Council in AIR 1936 318 (Privy Council) where a Hindu testator after
directing the payment of certain legacies, had given by his will the residue of his estate to his executors and trustees upon trust to pay the balance of
the income of the estate to the shebaits for the time being of the Thakurs established by him and located in his family dwelling house. He then laid
down the following rule for the succession to the office of shebaitship:
I appoint my sons Kartick Chunder Dhur and Ram Chunder Dhur to be the shebaits of the said Thacoors and I direct that upon the death,
retirement or refusal to act of any of them or any of the future shebaits the then next eldest male lineal descendant of Kartick Chunder or Ram
Chander Dhur shall act as shebait in place of the deceased or retiring shebait or shebaits refusing to act as such-it being my intention that the eldest
for the time being in the male line of my said sons Kartick Chunder Dhur and Ram Chunder Dhur shall always remain as joint shebaits and in the
event of the death or refusal to act of any shebait the then next male member of the branch to which the shebait dying or refusing belonged shall act
as a shebait in his place or stead.
It was agreed before the Board that there was a valid gift for life to the testator''s sons Kartick and Ram; but the rest of the clause was attacked as
invalid as laying down a line of succession not permissible under Hindu law. The Privy Council, Lord Thankerton, observed as follows:
Their Lordships apprehend that the law applicable to the present case is well settled, and that the question is one of construction of the will. The
well-known Tagore case : Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377, laid down two separate principles : (a)
that a person capable of taking under a will must be such a person as could take a gift inter vires, and therefore must either in fact or in
contemplation of law be in existence at the death of the testator, and (b) that all estates of inheritance created by gift or will, so far as they are
inconsistent with the general law of inheritance are void as such, and that by Hindu law no person can succeed thereunder as heir to the estates
described in the terms which in English law would designate estates tail. As Lalbehary and Netye (two of the grandsons who had been born before
the testator died) were in being at the testator''s death, the first of these principles presents no difficulty. In Gnanasambanda Panda-rasannadhi v.
Velu Pandaram (1900) 23 Mad 271 it was held by this Board that the second ruling in the Tagore case: Jatindra Mohan Tagore v. Ganendra
Mohan Tagore (1972) 9 Beng. L.R. 377 above referred to is applicable to an hereditary office and endowment as well as to other immovable
property. This decision was followed in Manohar Mukerji v. Bhupendranath Mukerji AIR 1932 Cal 791.
It was accordingly held that the provision of the will relating to the holding of the office of shebaitship after the respective deaths of Kartick and
Earn failed constituting, as it did, an invalid line of succession which was not permissible under the Hindu law. The rule applied here to the office of
shebait is the same as is applicable to immovable property. In Gnanasambanda Panda-rasannadhi v. Velu Pandaram (1900) 23 Mad. 271 the
Privy Council was called upon to consider whether with respect to the hereditary office of the trusteeship of a public religious endowment each
successive trustee takes a life estate directly under the grant made or presumed to have been made by the founder when he established such a
hereditary office, or whether the succeeding trustee steps in as the heir of his predecessor in office. It was held that the Hindu law did not permit
the creation of successive life estates in the endowment on the principle of the rule in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972)9
Beng. L.R. 377 and they observed,
In their Lordships'' opinion the ruling in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 is applicable to an
hereditary office and endowment as well as to the other immovable property.
It follows that an hereditary office and immovable property were regarded by the Judicial Committee as standing on the same footing so as to
prevent the founder in the one case and the owner in the other from prescribing a rule of succession contrary to Hindu law, for instance, by the
creation of successive life estates. The endowment in this case was undoubtedly of the nature of a public religious trust attached to the temple at
Tirukkadayur. The trustee for the time being was given no beneficial interest at all in the endowment and his duty was to manage it and apply the
income for the benefit of the temple without any remuneration for himself.
It must therefore be taken as settled that the shebaiti office equally with the hereditary office of manager of a South Indian temple is a species of
property to which the restrictions enunciated in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 are applicable. But
we consider that the position of a shebait with reference to the maintenance and management of family trusts such as those in vogue in North India
is essentially different from that of a dharmakarta or manager of a public temple in this part of the country. Unlike the shebait, the manager has no
beneficial interest whatsoever in the endowments and is merely the holder of an honorary office. There are no (emoluments attached to the office
and he has no rights and no privileges with reference to the ''distribution of the income as he is under a duty to adhere strictly to the established
mamool obtaining in the particular institution. In some temples he receives honours in the shape of garlands, but this is a mere mark of respect
commonly shown to others also. The Pull Bench (Manohar Mukerji v. Bhupendranath Mukerji AIR l932 Cal 791 of Calcutta High Court in
coming to the conclusion that shebait-ship is property and not a mere office, laid emphasis on the fact that the manager or custodian of the idol of
the institution is in almost every case given the right to a part of the usufruct, the mode of enjoyment and the amount of usufruct depending on usage
and custom, and has a very large discretion in the distribution of prasad and matters of that character. The learned Judges observe at page 494,
Shebaitship, in its true legal conception, involves two ideas; the ministrant of the deity and its manager; it is not a bare office but an office together
with certain rights attached to it. A shebait''s position towards the debattar property is not similar to that in England of a trustee towards the trust
property; it is only that certain duties have to be performed by him which are analogous to those of trustees.... The shebait deals with the property
in his custody or management as if he has some property, though not the full rights of property, in it, the legal property vesting in the idol.
A careful analysis of the reasoning of the Full Bench shows that it is the possession of a right in the. property of the endowment, which formed the
basis of the judgment and led to the view that the shebaiti office was property. The argument before the Pull Bench and in particular the following
passage in the judgment sufficiently indicates that if the shebaiti office could be regarded as an office pure and simple, the rule in Jatindra Mohan
Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 would have been held inapplicable. The alternatives before the Court were thus
expressed at page 466:
The questions referred to the Full Bench, therefore, mainly depend on the question whether shebaitship in Hindu law is property of any kind, to
which Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 may apply, or is merely an office to which the founder of an
endowment is competent to appoint or nominate persons in any order of succession, which may have the effect, so far as the founder is concerned,
to use the words of Turner L.J. in Soorjeemonee Dossee v. Denobundo Mullick (1857) 6 M.I.A. 555 of creating a new form of estate or altering
the line of succession allowed by law, for the purpose of carrying out his own wishes or views of policy.
The Full Bench of the Calcutta High Court has refused to draw a distinction between private and public trusts in deciding whether the shebaiti
office is property or not. But this point does not appear to have arisen for decision, and the view expressed was merely obiter. It is true that the
Privy Council has given its approval to the conclusion there reached, but this does not mean that their Lordships affirmed even the obiter dictum
aforesaid. The fact is that in all the Calcutta cases to which our attention has been drawn it would seem that the shebaiti office which was in
question related to a private trust in favour, of a family Thakur. We are also conscious that if the office of a manager or dharmakarta is hereditary it
must be deemed to be a species of property heritable and descendible according to Hindu law, and one to which the principle in Jatindra Mohan
Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 is applicable as ruled in Gnanasambanda Panda-rasannadhi v. Velu
Pandaram(1900) 23 Mad. 271. But a non-hereditary office must be considered with special reference to the particular incidents attaching to it; and
if those incidents do not confer on the trustees an interest in the endowment, but only lays him under a duty to manage, it is impossible to maintain
in the absence of definite authority that the office is property in any sense of the term.
That the office of the shebait is essentially, different in character from that of the manager or dharmakarta of a temple in South India has been
laid down by the Privy Council in plain language in Srinivasachariar v. Evalappa Mudaliar AIR 1922 P.C. 325. Their Lordships observed that the
term ""dharmakarta,
is in truth the legal equipollent to trustee. The position of dharmakarta is not that of a shebait of a religious institution, or of the head of a mutt.
These functionaries have a much higher right with larger power of disposal and administration, and they have a personal interest of a beneficial
character.
In the very learned judgments delivered in Viayapurnatirtha Swami v. Vidyanidhi Tirtha Swami (1904) 27 Mad. 435 the distinction between those
functionaries is explained. But a dharmakarta is literally and no more than the manager of a charity, and his rights, apart it may be in certain
circumstances from the question of personal support, are never in a higher legal category than that of a mere trustee.
A correct description of the position of the dharmakarta of a temple approved by the Privy Council in the case just cited will be found in the
judgments of Subramania Ayyar O. C.J. and Bhashyam Ayyangar J., in Viayapurnatirtha Swami v. Vidyanidhi Tirtha Swami (1904) 27 Mad. 435.
Subramania Ayyar O. C.J. said:
In the case of temples the ideal person being the idol itself, the natural custodian of the property who has, no beneficial interest whatsoever in the
endowments, but occupies the fiduciary position of a mere manager Juggodumba Dossee v. Puddomoney Dossee (1975) 15 Beng. L.R. 318 may
not improperly be looked upon as subject strictly to the liabilities of a trustee.
Bhashyam Ayyangar J. expressed the same idea, perhaps in more detail, when he said:
In the case of temples, the endowments, whether in the shape of landed property or tasdik allowances, have to be devoted to the carrying out of
the specific purposes connected with the temple, i.e., the daily worship and the periodical ceremonies and festival- purposes defined and settled by
usage and custom and generally recorded in what is known as the ''dittam''- and the dharmakartas are mere trustees for the carrying out, or
executing of such trusts.
Further light is also thrown by the observations of the Privy Council in Ramanathan Chetty v. Murugappa Chettiar (1906) 29 Mad. 283 where
their Lordships describe the office of a temple dharmakarta in the following terms:
The manager of the temple is by virtue of his office the administrator of the property attached to it. As regards the property the manager is in the
position of a trustee. But as regards the service of the temple and the duties appertaining to it he is rather in the position of the holder of an office or
dignity which may have been originally conferred on a single individual but which in course of time had become vested by descent in more than one
person.
This, of course, was said with reference to a hereditary office; but whether hereditary or not, the position is that of a bare trustee. It is scarcely
necessary to point out that in the case of a non-hereditary dharmakarta office a succeeding dharmakarta does not inherit to or derive his title from
the predecessor. In Mohamed v. Ganpati (1990) 13 Mad. 277 expressly approved by the Privy Council in Vidhya Varuthi Tirta v. Baluswami Iyer
AIR 1922 P.C. 123 the question arose whether a suit by a succeeding dharmakarta for recovery of possession of land leased by his predecessor
in office was barred by limitation. In that connexion the Court observed:
In the present case, though the plaintiff may in point of time have succeeded the dharmakarta who made the alienation, he does not derive his title
from that dharmakarta and is therefore not bound by his acts. Subject to the law of limitation, the successive holders of an office, enjoying for life
the property attached to it, are at liberty to question dispositions made by their predecessors Pappayya v. Ramanna (1984) 7 Mad. 85 Jamel
Sahib v. Murugayyaswami (1986) 10 Bom. 34 Modho Kooery v. Tekait Ram Chunder Singh (1983) 9 Cal 411 and it is equally clear that time
runs against the successor who challenges his predecessor''s disposition, not from the date of the disposition, but from the date of the
predecessor''s death, when only the successor became entitled to possession.
This principle, it may be remarked, has been given effect to by the later decisions of the Privy Council and has now been incorporated in the
Limitation Act by the addition of Article 134B. It seems to us that Vaithilinga''s scheme of succession vesting the management in his descendants
both in the male and the female line has not been shown to be illegal or invalid. We are naturally averse to the creation of a new restraint or the
extension of the old one, and we feel that that is precisely what we shall be doing if we bring offices pure and simple involving no rights of property
whatever, within the rule in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377. We are not called upon to say whether
the management prescribed by Vaithilinga is wise, or will make for the efficient administration of the temple and its endowments. There may be a
good deal to be said against it from this aspect of the matter, but the question before us is quite different. Management by a miscellaneous group
without the necessary cohesion is almost certain to lead to confusion and neglect, and may result in the frustration of the objects of the founder. The
remedy for the evil not perhaps foreseen by the author, is to approach the Courts for the framing of a scheme for placing the temple administration
under proper management. But till then the existing scheme with all its defects and all its anomalies has to be recognised, the result being that the
appellant is, and is entitled to be one of the lawful managers of the suit properties along with the representatives of Vaithilinga in the male line.
The appellant has sought to rest his case on an alternative ground also, namely, that he has acquired a hereditary right of co-trustee-ship along
with the contesting defendants by adverse possession. This question is not specifically raised in the plaint, nor is it covered by any definite issue.
Apart from this objection, the evidence is not such as to warrant a finding of a prescriptive title in the appellant. It is true that from about the year
1886 the appellant''s predecessors-in-title are shown to have taken part in some of the transactions relating to the temple at Jaffna and the lands
here. In view of the close relationship of the parties and the other circumstances proved in the case we do not think that we will be justified in
differing from the finding of the learned Subordinate Judge that the appellant has failed to make out a title by adverse possession. On the
respondents'' side it was contended that even on the assumption that the appellant had a right to the trusteeship it had been lost by adverse
possession. We consider that the conclusion reached by the learned Subordinate Judge on this part of the case is correct. As observed by him,
there is no definite proof of ouster or exclusion which is an essential element of adverse possession as between co-owners. The result is that the
materials placed before the Court are not such as to induce us to differ from these conclusions of the Court below. In the result, there will be a
decree in favour of the plaintiff for the joint possession of the office of trusteeship and of the trust properties described in the suit and the
defendants shall be restrained by a permanent injunction from interfering with the plaintiff''s enjoyment of the office of joint trusteeship along with
the respondents. The appellant is entitled to his coats here and in the Court below from the respondents.