1. This appeal arises in a suit filed under Section 92 of the Civil Procedure Code with reference to a choultry and the properties alleged to be endowed for the use of that choultry. The two plaintiffs are relations of the founder and the two defendants allege to be the lawfully appointed trustees under the will of one Suriyanarayjna Aiyar who according to the plaintiffs was the last surviving trustee of this charity. Suriya-Narayana Aiyar was one of five brothers, the sons of one Kalyanarama Iyer. The other four brothers were Sivasubra-maniya Aiyar, Venkataranga Aiyar, Swaminatha Aiyar and Sivarama Aiyar. Kaliyanarama Aiyar had also several daughters one of them being the mother of Thiyagaraja Aiyar, the 1st plaintiff. 2nd plaintiff is the son of the adopted son of another daughter of Kaliyanarama Aiyar. One daughter of Kaliyanarama Aiyar named Subbuthayi Animal is still alive all the sons and the other daughters having died previous to the institution of the suit. The first question which has been argued before us by Mr. T. Kangachariar, the learned vakil for the defendants, is whether the plaintiffs have an interest within the meaning of Section 92 of the Civil Procedure Code sufficient to enable them to maintain the suit. He relies strongly on the decision of a Full Bench of this Court in T. K. Ramqfhaudra Iyer. v. Paratneswaram Unni I.L.R. (1918) Mad. 360 which lays down that a person suing under the provisions of this section must have a substantial interest and not merely a remote contingent or hypothetical interest in the charity in question. Since that decision a bench of this Court have considered its effect in Appeal No. 196 of 1918, the facts of which have much resemblance to the facts of this case. Whether the plaintiffs instituting a suit of this character have an interest within the meaning of Section 92 or not has to be determined upon the facts of each case bearing on the relation of the plaintiffs to the charity with reference to which the suit is brought. In this case the plaintiffs are, as stated, the descendants of the founder of the charity. The 1st plaintiff on the death of Subbuthayi Animal in the absence of Kaliyanarama Aiyar's dayadees, would be entitled to succeed to the family properties.
2. Mr. Rangachariar has argued that there is evidence to show that there are dayadees of Kaliyanarama Aiyar in ex-istance. That evidence is of an extremely vague character, and in any case it is not shown that they are taking any interest in the preservation of the charity or in any of the affairs of the family generally. With respect to Subbuthayi Ammal also, it does'not appear that she interests herself in the proper maintenance of the charity. The 1st plaintiff resides in Madras, but he occasionally visits Perumandi village, the ancestral home where the choultry is situate. The 2nd plaintiff is a pleader practising in the Native State of Pudukotta. He has several houses in Kumbakonam and he often visits the ancestral family house. No doubt it has been laid down that the mere fact that the plaintiff suing under Section 92 C. P. C. is a Hindu and is entitled to worship in a temple would not give him interest enough to maintain a suit under Section 92, C. P. C. In applying the analogy of that case to this choultry we have to bear in mind the further facts that the plaintiffs belong to the family of the founder and that fact would naturally give them an interest in the family charity. It has been ruled by a Full Bench of this Court in Gauranga Sahu v Siuicvi Mata I.L.R. (1916) Mad 612 that the heirs of the founder have considerable interest in the maintenance of the charity, and the Hindu law gives them the right to nominate trustees in the case of a vacancy and in the absence of any provision in the deed of endowment for the appointment of trustees. In our opinion therefore the Full Bench decision of this Court above referred to does 'not preclude us from holding that the plaintiffs having regard to the facts proved in the case have an interest within the meaning of Section 92 C. P. C. sufficient to enable them to maintain the suit.
3. The next question argued by Mr. Rangachariar is of a still more general character, namely, that this choultry is not a public trust, but is nothing more than a private guest house built by Kaliyanarama Aiyar and to a suit in respect of it therefore the provisions of Section 92 C.P.C. have no application. The appellant's contention is that a public trust of this character was created later on by the provisions of the will of Sun Aiyar already referred to, and that until then it was private-property of the family or at the most a private trust which the members of the family were entitled to put an end to in certain contigencies. At all events it is said there was no dedication to public uses except under the will of Suri Aiyar.
4. The question really depends upon the inference to be drawn from the evidence in the case, mainly the documentary evidence ranging from 1864 as there was no deed executed by the founder with reference to this choultry when he built it. Some question is raised as to who the actual founder was whether the choultry was built by Kaliyanarama Iyer or by his father Kajappa Iyer. But he plaintiffs in their plaint state that it was constructed by Kaliyanarama Aiyar. We think that we ought to proceed on that basis though there is evidence, even of witnesses on the side of the defendants, to show that the choultry was some time known as Kajappa Iyer's. The earliest document is of 1864 a deed of partition between the five brothers, Exh. A. The document speaks of this choultry as ' Perumandy chathram which is the Dharmam and which is being conducted in the family from the beginning and it mentions the nanjah and punjah and lands of other description which are attached to the chathram of which some are in the Perumandi village, some in Alankurichi and some in Thennalur village. These are the lands which form the properties ' mentioned in the plaint B schedule items 1 to 17. Chathram itself and the lands surrounding it form the A schedule. Then it is provided that the five brothers shall manage the chatram according to the order of seniority. The document speaks of these properties being given to the chatram. It is important to note this fact that income yielding properties were attached to this chatram and were set apart for its maintenance, and the brothers while partitioning the family properties did not think of dividing the chatram properties. If it was merely a private guest house as argued on behalf of the appellants one would not expect any properties being set apart for its maintenance, nor would there have been a provision for its maintenance by each member of the family in turn. It was pointed out that there was no provision made for the appointment of trustees after the death of the five brothers. But that cannot make any difference. When we find that income yielding properties are set apart for the maintenance of the chatram it might well have been within the contemplation of the brothers either that they would later on make a further provision with respect to its management or that its management should be carried on by the succeeding members of the family in succession to themselves. The next document of importance is the will of Swaminatha Iyer, Ex. C. The construction of this will is one of the questions for decision in the appeal, which we shall deal with later on. It is sufficient to mention here that by this will the executors appointed therein are directed to feed poor people ' in our family choultry in Perumandi now under the management of K. Venkatranga Aiyar.' That' is not the sort of provision which would have been made if this chatram were the private property of the original undivided family. The burden of the maintenance of the chatram would in such cases fall on the surviving descendant of Kaliyanarama Aiyar. The will of Swaminatha Aiyar clearly implies consciousness on his part that the chatram is a public trust created by the ancestor of the family. Very soon afterwards i.e., in 1892 a deed of surrender Ex. B was executed by Sivasubrahmainia Aiyar in which he says ' as I have already left the chatram belonging to our family and situated in Agara Perumandi village and the nanjah and punjah lands etc., all matters belonging to it to the management of Venkatranga Iyer because of my inability to manage the same.' In another place he speaks of nanjah and punjah lands' belonging toithe said chatram'. We may mention here that much stress was laid by Mr. Rangachariar on the use of the phrase' chatram belonging to our family or ' family chatram ' and similar phrases of that character used in this and other documents. But in our opinion such expressions do not suggest any inference against the existence of public trust with respect to this chatram; all that they mean is that it was founded and maintained by the family. Then there is the will of Venkatranga Aiyar executed in 1884, Ex. H. and by that will a contingent interest is given in his properties to the chatram and provision is made for the administration of the choultry and its properties by the Government in case the contingency happens and it describes the choultry in so many words as a charity choultry built by the ancestors of the testator. No explanation has been suggested as to why this choultry should have been described as charity choultry and why its maintenance and of the properties attached to it should have been provided for if it was not a public trust. It could not be suggested that Venkatranga Aiyar would have thought of dealing with this choultry as a public charitable trust if as a matter of fact it was a private property in which other members of the family were beneficially interested, nor would he have entrusted the management to the Government in certain events if it was not a public trust.' Suri Aiyar was the last survivor of the five brothers. He was a District Munsif and afterwards Subordinate Judge. He died after retirement from service in 1913. As already mentioned, the appellants' case is that it was Suri Aiyar who for the first time created a public charitable trust of this choultry and of the properties belonging to it. The will however shows that he did not want to change the character of this choultry; on the other hand what he intended was to keep up its original character and to endow it with some more properties of his own. He speaks of the choultry as his family choultry and of the building and landed properties as belonging to it. It was pointed out that he states that they were in his possession and enjoyment. That does not necessarily mean that they were in his possession and enjoyment as a beneficial owner but he only means that he was in management of them as he makes it clear in other parts of the will. For instance in paragraph 11 he provides for the management of the choultry and of the entire properties attached thereto. There is another document Ex. D., which is a deed of relinquishment executed by Sivasubramania Iyer in 1892 in favour of Suri Iyer. There he speaks of the trusteeship of the Dharma chatram founded by forefathers and gives up all claims with respect thereto for the consideration of an annuity of Rs. 20 to be paid by Suri Aiyar. Mr. Rangachariar objected to the admission of this document on the ground that only a registration copy was produced and that it was not duly proved. No such objection was taken in the lower court and even in the grounds of appeal before us. All that is stated is that the lower court did not constrjue the document properly. Then it was argued that this deed of agreement suggests that Sivasubramania Aiyar laid claim to the chatranr and its properties. With respect to this it has to be borne in mind that Sivasubramania Aiyar managed to get rid of the ancestral properties that fell to his share at rather an early date, and that he was depending more or less upon the charities of Suri Aiyar. It is evident that this man was trying to get whatever he could get from Suri Aiyar. it would seem that Suri Aiyar in order to save himself further worry or trouble agreed to give him a small stipend and obtain from him a deed of relinquishment in his favour. On the other hand the recital to which we have referred shows that the choultry was regarded as a charitable institution. All these documents therefore to which all or some of the members were parties strongly support the case of the plaintiffs that the choultry with properties attached to it is a charitable trust.
5. Mr. Rangachariar has relied upon a number of lease deeds and muchilikas in which the properties in dispute are described as ancestral property and enjoyed by the executants of the deed, that is by one of the five brothers who at the time was in management of this choultry. But we do not think that any valuable inference can be drawn from these documents. No doubt the correct thing for a trustee of a choultry demising the charity properties is to describe the properties as belonging to the charity and to state that he was making the demise in his character as trustee. In this country the forms of conveyance are not strictly observed especially in the districts and we should not be justified in attaching any importance to casual expressions in documents like, Exs. II series, VI series, V series and VIII series. Special reference was made to the inam title deed with respect to some lands in Thirumallur village Ex. IX. We are asked to draw an inference in the defendant's favour from the absence of any description in the title deed as to the grantee being'1 a trustee of the choultry. But we do not think that this is a matter of any importance as the description stands on the same footing as that in the lease deeds. Much reliance was placed on the fact that in 1878 some land in Thennur village was usufrtictuarily mortgaged. But then as pointed out by the subordinate Judge, it has been redeemed and included even in Suri Aiyar's will as property belonging to the choultry.
6. The other piece of evidence on which the appellants place much reliance is with reference to the exchange of a piece of vacant land in Ex. III A and included in schedule A. The superstructure on the land was subsequently made a gift of to another person and purchased by Suri Aiyar under Ex. 111. In this very document it is stated that the superstructure and the building belonged to the Dharmachatram. The documentary evidence on the whole is strongly in support of the finding of the subordinate Judge that the choultry was a charitable public trust.
6. As regards the evidence of the actual use of this choultry there can be no doubt the wayfarers were used to be accommodated there and that the Brahmins also were fed in the choultry. Even one of the defence witnesses D.W. 5 an old man whom the Judge has believed on this point speaks of the Brahmins being fed in the choultry and wayfarers being lodged there. No doubt there is evidence to show that Suri Aiyar the last trustee, did not think that the feeding of Brahmins was very much of a charitable act, though he himself provided for the feeding of Brahmins by his own will. It was also pointed out by the learned vakil for the appellants that Suri Aiyar sometimes when visiting the village put up in this choultry and that some family idols were kept there. These are small matters and cannot have much significance considering that the choultry was managed all along by the members of the family. We therefore agree with the finding of the subordinate Judge that this choultry was a public trust from, the very beginning and therefore the suit with respect to it and its properties is maintainable under Section 92 C.P.C.
7. The next question argued was whether the properties in A and B schedules form part of the endowment. It appears that one of those properties was sold long ago and Mr. Rangachariar wanted to adduce in this Court as evidence, a document purporting to be the deed of sale with reference to the transaction. The defendants had not taken the trouble of finding out the document and producing it in the lower court. That property is not claimed in this suit and there is no evidence to show the circumstances in which the property came to be sold. It might be as suggested by the subordinate Judge that it was sold for purposes binding on the chatram. We have already deak with the question relating to the lands which are the subject matter of Ex. III and III-A and of usufructuary motgage. Ex. II We agree in the conclusions of the subordinate Judge that the. properties in A and B schedules attached to the plaint form part of the endowment of this choultry. As regards schedules C. to F. some properties have been alienated and the alienees are not parties to this suit. So far as those properties are concerned as pointed out by the Subordinate Judge any finding in this suit cannot bind the alienees. This question is dealt with by him under the 11th issue. We agree with the Subordinate Judge that it will be open to the trustees appointed under the scheme to sue the alienees in respect of the alienated properties.
8. As regards the construction of Exh. C, the will of Swami-natha Aiyar, the learned Subordinate Judge has held that the choultry has a claim to 7/9th of the properties. It was contended by Mr. Kangachariar that we are not entitled in this suit to go into the question of the construction of Swaminatha Aiyar's will. But we accept the contention of Mr. K. Srinivasa Aiyangar that under Section 92, C.P.C. when we are asked to frame a scheme one of the essential enquiries to be made is what are the properties belonging to the charity. We are riot directly concerned in this suit with the administration of the will of Swaminatha Aiyer. But as the defendants who are in possession of the choultry and its properties deny that the choultry is entitled to any benefits under the provisions of Ex. C as claimed by the plaintiff, it is open to us to go into the question. It was suggested that the gift in favour of the choultry is not to take effect until the executors appointed by the will have paid the debts. The will was in 1881. There is not an iota of evidence that any debts of Swaminatha Aiyer remain undischarged. The executors appointed under-the will are dead and we think we may safely conclude that there are no debts left to be paid and that the contingency upon which the charity was to get 1/3rd of the income has arisen.
9. As regards 2/3rds of the income of the properties given to the wife which the will directs to be utilised for Dharmam on her death, it is argued that the reference there is not to this choultry but to chanty generally. The learned subordinate Judge has held that the word 'Dharmam' refers to this choultry and we think he is right in that construction. In view of the will the choultry becomes entitled under Ex. C to 7/9ths of the incame of the properties.
10. It is next argued that we must hold that there was a special endowment or Kattalai, as it is called, created by Swaminatha Aiyar, and such a special endowment should not be mixed up with the properties originally dedicated to the choultry. No doubt the provisions of Swaminatha Aiyar's will are to be carried out by the executors, Venkataranga Aiyer and Suryanarayana Aiyer. Botn of them are however dead. If there is a gift as we hold there is, in favour of this charity it is within the competence of the court in this suit to make a suitable provision for its administration in any scheme that is to be framed, especially as there is no provision in the will for the administration of these properties after the death of Venkataranga Aiyar and Suryanarayana Iyer.
11. It was further argued that the gift of the income from the properties devised under Ex. C. does not amount to a gift of the properties themselves but only creates a charge in favour of the choultry. We do not think however that this is a sound proposition. The gift of the income of a property without any limitation's a gift of the property itself. See South Moulton Corporation v. Attorney General (10 Eng. Rep. 796 at p. 808): also Mannox v. Greever L.R. Eq. 456.
12. The last important question to be determined relates to the effect of Suri Aiyar's will. It is contended on behalf of the appellants that Suri Aiyar, being a descendant of the founder of this charity, Kalyanarama Aiyar, as last trustee was entitled to appoint the 1st and 2nd defendants and also one Jaya Krishnachari as trustees. Two issues were raised with reference to this question. One was whether Suri Aiyar was competent to make the appointment and if so, whether the appointment was bona fide. And the 15th issue raised the question that if the defendants were appointed they should be removed from office. The learned Subordinate judge has held that the appointment of these two persons was not bona fide and Iras also found facts which show that these persons cannot properly be trustees of these properties. He says that Suri Aiyar did not believe in the utility of feeding Brahmins in the choultry that his conduct also shows that he was not really interested in maintaining the choultry but that he was more interested in providing for a woman whom he calls his foster daughter namely Rangathammal, that the 1st and 2nd defendants are brothers and hangers on of Suri Aiyar, and that the 1st defendant'who worked for him as a sort of gumastah acquired a great deal of unwholesome influence over him and that Suri Aiyar put these properties in their charge not so much for the defendants' benefit of the charity as for their personal benefit and for the benefit of Rangathammal. We shall assume that Suri Aiyar as the surviving descendant of the founder was entitled under the Hindu Law to nominate trustees and to make provisions for the management of the trust. But it is a right the exercise of which the court is not bound to uphold if in its opinion the person nominated by the founder's heir as trustee is not fit to hold the office. As laid down by the Privy Council in the well known case from Rangoon, Mahomed Ismal Ariff v. Ahmed Moola Dawood I.L.R. 43 Cal 1085 the interests of the trust are supreme and the court must have regard to such interests in dealing with the question whether the persons appointed as trustees are persons who can be properly entrusted with the management of the institution. These two persons, the 1st and 2nd defendants are absolute strangers to the family though they alleged certain relationship to the family which allegation is found to be false. The 1st defendant is not a man of any means, and the learned subordinate Judge who tried the suit is not satisfied that the 2nd defendant's career was not such as to inspire confidence. Besides as pointed out by Mr. K. Srinivasa Aiyengar, the defendants have persistently contended that the choultry was not a public foundation at all and that the property claimed as public trust was the private property of the family. The subordinate Judge has found that the 1st defendant aided and abetted Suri Aiyar in his violations of the trust. The 1st defendant certainly must have known that the choultry was a public charitable trust. He must have known that the travellers used to be accommodated there, that Brahmins used to be fed there and that it was regarded by the family including his master Suri Aiyar as a charitable trust and not as the private property of the family. This Court has no doubt held that the mere denial of the existence of a public trust, if bona fide, does not by itself disqualify the man from being appointed or retained as trustee of the institution. We are convinced as was the learned subordinate Judge that this is not such a case and that under the circumstances the appointment of defendants 1 and 2 as trustees should not be upheld and hey should be removed from the trusteeship of this foundation. The 3rd trustee Java Krishnamachari is dead. It will threfore be open to the lower court in framing the scheme to appoint proper trustees for the institution.
13. Mr. Kangachariar argued that some properties mentioned in F Schedule which were disposed of by Suri Aiyar by his will did not in fact belong to him, some of them being properties belonging to some temple at Nagarkudi, some of them being service maniams and that they were in the possession of Suri Iyer on behalf of the temples and the service holders. These properties are mentioned in paragrahs 9 and 9(a) of the written statement and there is no finding of the Subordinate Judge with respect to them.
14. Items 172 to 179 were purchased by Suri Iyer in execution of a decree for rent obtained by himself in 1912 and portions of items 91 and 92 claimed in the written statement and the whole of item 170 were similarly purchased by him in 1903 in execution of another decree. Mr.. Ganapathi Aiyar for the defendant claimed these properties as belonging to Suri Aiyer by right of his purchase. These items belong to Nagarkudi village and the case of the plaintiffs was set out in their plaint that the Nargakudi village belonged to Swaminatha Aiyer and was disposed of by him in his will and under that will as we have held the choultry became entitled to 7/9th property. There is no evidence to show that Suri Aiyer was in possession of these items before Swaminatha Iyer's death. Presumably he was in possession as an executor under Swaminatha Aiyar's will. It is argued that he might have purchased the properties from his own funds, but then it must be borne in mind that he mixed up the trust property with his own and alienated a number of trust properties referred to in C I) and E schedules. The defendants did not produce accounts which if their case was true would have shown whether the properties were purchased by Suri Aiyar with his own money or with the moneys belonging to the trust for the choultry. Under these circumstances we must hold that these items belonged to the choultry.
15. As regards item 171, called Illuppai tope of which Suri Aiyar was in management on behalf of a certain temple called Kailasanatha Swami temple and a manyam belonging to the same temple and another temple of Varadaraja Perutnal, i.e., items 189 and 183, Suri Aiyar was apparently in possession of these properties as Mirasidar of the village. It is contended by the learned vakil for the plaintiff that as the choultry owns considerable lands in Nagarudi village the trustees whoever may be appointed for the choultry should have the management of these items as Mirasidar but we cannot accept this contention as there must be other Mirasidars: it is the entire body of Mirasidars who could make arrangement for the management of these properties as they may choose. It may be open to them to make over charge of these items to the truste'es of this choultry if they so choose. But we cannot hold that the trustees; would be entitled as of right to have possession and management of these properties. 17 kulis of item 8, 21 kulis of item 19 and the whole of items 24 to 26 belonged to Sellath-ammal the widow of Swaminathvi Iyer. Suri Aiyar would be the reversionary heir of Sellathammal and Ihere is really no evidence upon which we would be justified in holding that these items belong to the chatrain. The manyams claimed by the defendant--service Maniyam's, barber's, washerman's, carpenter's and watchman's are items 43, 60, 78 and 84. The Mirasidars of the village would be entitled to the management of these Maniyams for the reasons already given in respect of items 171,180 to 183. We cannot hold that the trustees of the choultry would as a matter of right be entitled to possession of these Maniyams. The result is that items 171, 180 to 183, 17 kulis of item 8, 21 kulis of item 19, items 24 to 26, and items 43, 50 and 84 mentioned in schedule to the written statement at page 21 will be excluded from the decree. In all other respects, the lower court's decree is confirmed and the appeal dismissed with costs, the costs to be paid by the defendants personally as we do not think that this is a proper case in which the costs of the appellant should come out of the trust estate.
16. Mr. K. Srinivasa Iyengar has asked for special vakil's fee but we cannot say that the appeal involved any points of special difficulty. The usual fee will be allowed.
17. Appeal No. 330 of 1918 will be dismissed but as accounts will have to lie taken, there must be a direction that the defendants do render accounts of the properties from the date of the death of Suri Aiyar. The Subordinate Judge will expedite the appointment of trustees as there are properties in the hands of the alienees and as it is apprehended that some suits might be barred if there be any further delay. The costs of both parties in this appeal will come out of the estate.