John Wallis, C.J.
1. The institution of the hereditary office of trustee of religious and charitable endowments is in accordance with the custom of the country recognized in Madras Reg. VII of 1817 and Act XX of 1863 and is too firmly established to be altered without legislation. It affords however no guarantee of fitness for the exercise of the office and may be held largely responsible for the numerous cases of waste and misappropriation of these endowments which come before the Court, and, it is to be feared, for a still larger number which are never brought before it. The exercise and enjoyment of the office in the event of the successive partitions to which families in India are liable also present difficulties which are illustrated by Ramanathan Chetty v. Murugappa Ghetty I.L.R. (1903) M. 192 which was affirmed by the Privy Council in Ramanathan Chetti v. Murugappa Chetti. (1906) I.L.R. 29 M. 283 (P.C.). In these circumstances it would perhaps be better if it had never been held that on failure of the line of devolution prescribed by the founder the trusteeship reverted as an hereditary office to the heirs of the founder. But, as observed in the order of reference, this view has been regarded as unassailable by a long course of decisions, and I do not feel at liberty to differ from them. This being so, there is, I think, much to be said for the view of the Allahabad and Calcutta Courts recognizing the right of the founder's heirs to make fresh arrangements for the devolution of the trust instead of leaving it to devolve as otherwise it must in the family of the founder subject to the difficulties as to its exercise and enjoyment to which I have already alluded. The institution of hereditary trusteeship is held to rest on the intention of the donor either expressed in the instrument of trust or to be presumed from usage, and the doctrine of reverter to the heirs of the donor on failure of the line of devolution prescribed by him must also it seems to me rest on his presumed intention. This being so I do not see much difficulty in presuming an intention that the heirs should be at liberty to make fresh arrangements for the devolution of the trust instead of leaving it to devolve in the family a result which the founder had shown himself anxious to avoid. In Ramanathan Chetty v. Murugappa Chetty I.L.R. (1903) M. 192, Benson and Bhashyam Ayyangar, JJ., were of opinion, that, when the office of trustee devolved upon the members of a Hindu family, it was open to them to settle a scheme for the enjoyment and exercise of the office in rotation, and their decision was upheld in Ramanathan Chetty v. Murugappa Chetty I.L.R. (1906) M. 283, by their Lordships of the Judicial Committee who held that the arrangement was one which the parties interested were competent to make without applying to the Court. That no doubt was not a case in which the trusteeship had reverted to the heirs of the founder on failure of the line prescribed by him. But in such an event also it seems to me more convenient and more in accordance with the presumed intention of the founder to allow fresh arrangements to be made instead of leaving the office to devolve on the heirs. It might I agree bs still better if it were opes to us in such a case to exclude the heirs of the founder altogether and leave a scheme to be settled by the Court, The right of nomination in such circumstances appears to have been recognised by the Court of Sudder Adalat, Mad. S.D.A. No. 52 of 1857. The decision of Muttusami Aiyyar, J., in Sathappayyar v. Periasami I.L.R. (1890) M. 1, does not in my opinion help either side. What the learned Judge did was to recognize a right of appointment, not in the plaintiff as heir of the founder or in the Court, but in the plaintiff and his family as the beneficiaries under the trust. At page 13 the proper decree is said to be to declare the respondent's right to appoint a person qualified to discharge the peculiar trusts as new trustee with the concurrence of the members of the family. The statement as to the decree in the order of reference was made under a mis-apprehension, as what the decree does isto declare the right of the plaintiff to nominate with the concurrence of his family and to direct the properties to be handed over to the person so nominated, and in default of nomination to dismiss the suit, and this appears to me to have given effect to the intention of the learned Judge. The other cases are sufficiently dealt with in the order of reference and the opinions of my learned brothers and it is unnecessary to refer to them. I would answer the question in the affirmative.
Abdur Rahim, J.
2. To my mind the question whether the right of nominating a trustee to a Hindu religious endowment vests in the heirs of the founder in the absence or failure of a specific provision in the deed of endowment or where there are No. special usages or circumstances indicating a different mode of devolution, is concluded by authority and must be answered in the affirmative. It is not suggested that there is any text of Hindu Law bearing on the point, but the question has been the subject of unanimous rulings of this Court as well as the Allahabad and Calcutta High Courts, the later decisions bsing mainly founded on the pronouncement of the Judicial Committee in Gossami Sri Gridhariji v. Romanlalji Gossami I.L.R. (1889) C. 3 .
3. To begin with the earlier cases. Of the two Madras Sudder Dewany decisions cited by Mr. Maynein his Hindu Law (paragraph 440) as negativing the right of nomination by the heirs of the founder, all that was decided in Case No. 50 of 1851, page 57 was that the heirs of a founder were not entitled to recover possession of the endowed properties from a trustee who had been properly appointed or to demand accounts from him. The statement that 'it is obvious that in the management of charitable institutions, the heirs of the founder can have no legal right to interfere unless under some special powers given to them by the founder' should not be given a wider application. Case No. 52 of 1857 (at page 152) clearly ruled that on the death of the first Dharmakartha appointed by the founder the latter's heir had the right to appoint a fresh trustee. In 1870 a Division Bench of the Calcutta High Court of which Dwarkanath Mitter, J. an eminent authority on Hindu Law, was a member, held in Peet Koonwar and Anr. v. Chuttur Dharee Singh, (1870) 13 W.R. 396 same case - Mussamat Jai Bansi Kunwar v. Chuttar Dhari Sing (1870) 5 B.L.R. 181 that where the Mutawalli of an endowment dies without nominating a successor, the management must revert to the heirs of the person who endowed the property. The endowment in question in that case, it may be mentioned, was made by a Hindu for an idol though the words Mutawalli and waqfae (Mahomedan Law terms for trustee and deed of endowment respectively) were used in connection with the dedication.
4. The principle of the decision in Peet Koonwar and Anr. v. Chuttur Dharee Singh (1870) 13 W.R. 396, was affirmed by the Judicial Committee in Gossami Sri Gridhariji v. Romanlalji Gossami I.L.R. (1889) Cal. 3 where they lay down, 'According to Hindu Law, where the worship of a Thakur has been founded, the Shebaitship is held to be vested in tha heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different mode of devolution.' It was so held also in Surendro Keshub Roy v. Doorgasoondery Dossee I.L.R. (1891) Cal. 513 and the rule was re-affirmed in Jagadindra Nath Roy v. Hemanta Kumari Debi I.L.R. (1904) Cal. 129 their Lordships saying that in the absence of evidence as to the terms or conditions of the foundation the legal inference is that the title to the property, or to the management and control of the property, as the case may be, follows the line of inheritance from the founder. In Mohan Lalji v. Gordhan Lalji Maharaj I.L.R. (1913) All 283 they made it clear that the rule enunciated in Gossami sri Gridharji v. Romanlalji Gossami I.L.R. (1889) Cal. 3, was subject to the condition that the devolution in the ordinary line of descent is not inconsistent with or opposed to the purpose the founder had in view in establishing the worship.
5. It is contended that the right of the heirs of the founder is limited to their holding the office themselves and does not include the power to nominate or appoint a trustee. No such limitation has however been recognised by the courts and I am not persuaded that it was ever within the contemplation of the Judicial Committee. Soonjafter the judgment of the Privy Council in the case in Gossami Sri Gridhariji v. Romanlalji Gossami I.L.R. (1889) Cal. 3, Muttuswami Ayyar, J., had to consider in Sathappayyar v. Periasami I.L.R. (1890) M. 13 the precise question now raised before us with reference to a mutt. He laid down at page 13, 'in the absence of a qualified disciple in whom the right of succession has already vested, the beneficiaries, who are the menibers of the Zamindar's family, are the only persons interested in the appointment and entitled as, such to express an opinion regarding the fitness of the proposed new trustee for the office, The case is then analogous to that of a vacancy arising from the death of a paradesi without appointing his successor. The proper decree is to declare the respondent's right to appoint a peirson qualified to discharge the peculiar trusts as new trustee with the concurrence of the rest of his family, to direct him to do so witbtin a given time, and, upon his doing so, to confirm such appointment after notice to the other members of the respondent's family, and to direct that upon such confirmation the properties in dispute be made over to the person newly appointed to be administered so as to carry out the trusts of the institution in accordance with its usage'. On referring to the decree passed in accordance with the above direction it is evident that the suggestion made in the Order of Reference that the decree drawn up by the High Court only declared the right of the heir of the founder 'to offer advice' was based on a clear misapprehension. In fact that was the important point on which thes decree of the Lower Court was modified by the High Court, the modification consisting in declaring the right of the Rajah to appoint or nominate the paradeai subject to confirmation by the Court.
6. Then, I am unable to draw from the passage in Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Swami I.L.R. (1904) M. 435 alluded to in the Order of Reference any conclusion that Mr. Justice Bhashyam Ayyangar, intended to negative the right of the heirs of the founder to make nomination in the case of a vacancy. If he intended to lay that down, one would have expected him to do so in express terms especially as he was one of the vakila who argued the case before Muttuswami Ayyar, J. The learned Chief Justice and Coutts Trotter, J. in Doraisami Pillai v. Sandanathamall (1915) M.W.N. 478, on the other hand held that on failure of the provision originally made by the founder for management of a charitable trust, the right to provide for succession to the trust reverted to him.
7. In Sheoratan Kunwari v. Ram Pargash I.L.R. (1896) A. 227 the law is taken to be well-settled that in the absence of provision for the nomination of a trustee, the right to nominate vests in the founder of the endowment and continues to his heirs and the ruling of the Privy Council in Gossami Sri Gridhariji v. Romanlalji Gossami I.L.R. (1889) Cal. 3 is referred to as having accepted the principle. The rule is followed in Chandranath Chakrabarti v. Jadabendra Chakarabarti I.L.R. (1906) A. 689, Sheo Prasad v. Aya Ram I.L.R. (1907) A. 663, Gobind Prasad v. Gotnati I.L.R. (1908) A. 288 and Sukhbir Singh v. Nihal Singh (1913) 18 I.C. 232.
8. That has also been the course of decisions in Calcutta. In Ranjit Singh v. Jagannath Prosad Gupta I.L.R. (1885) C. 375 it was held by Norris and Ghose, JJ. following Peet Koonwar and Anr. v. Chuttur Dharee Singh (1870) 13 W.R. 396 that on failure of the provision for the appointment of a Shebait or manager, the office reverted to the heirs of the founder. Banerji, J., a very learned Hindu lawyer stated in Jagannath Prasad Gupta v. Runjit Singh I.L.R. 25 Cal. 354 the rule as enunciated in Peet Knnwar and Anr. v. Chuttur Dharee Singh (1870) 13 W.R. 396 and Gossami Sri Gridharjia v. Romanlalji Gossami I.L.R. (1889) C. 3 in general terms to the effect that when there is no other provision for the appointment of Shebait the management of the endowment must revert to the heirs of the founder. The same view of the law is upheld by Mookerjee, J., in Sital Das Babaji v. Protap Chandra Sarma (1909) 11 C.L.J. 2, and Raj Krishna Dey v. Bipin Behari Dey I.L.R. (1912) C. 251.
9. In the face of these authorities I feel myself bound to hold that the question referred to us is no longer an open one. Up to now there has been no expression of judicial dissent from the view of the law expressed in the above dicisions.
10. I may mention that Mr. A. Kriahnaswami Aiyar referred us to Narayanan Chettiar v. Lakshmanan Chettiar : (1915)28MLJ571 , where it waa held that an alienation of the office of trustee by the hereditary trustee of a temple is absolutely void. But it does not seem to me that nomination of a trustee by the heirs of the founder who on the failure of the line of trustees indicated by the deed of endowment would themselves be entitled to act as trustees is ipso facto the same thing as alienation of the office of a trustee by the hereditary trustee. It is no more an alienation of the office, properly speaking, than the provision for appointment of a trustee when made by the founder himself.
11. Nor can it be said that the nomination of a trustee by the heirs of the founder would not be in accordance with the genesis of the Hindu Law relating to trusts. That system recognises the hereditary principle with reference to trusteeships, such office is liable to partition like ordinary joint family property and it has been held to be capable of being acquired by prescription. It would doubtless be more in accordance with modern legal notions to release the office of trustee from the domination of the joint family and hereditary principles relating to tenure of property and the arguments of convenience probably preponderate in the same direction. At the same time I am not convinced that there are really insuperable difficulties in working out the view which upholds the right of the heirs of the founder to nominate and appoint trustees. Such of them as arose in actual cases have apparently been solved.
Srinivasa Aiyangar, J.
12. The argument before the Full Bench in which however nothing new was said and the further consideration which I have given to this matter have in no way changed the opinion which Mr. Justice Seshagiri Aiyar and myself expressed in the referring order. It is remarkable that in support of the doctrine of reversion of the management of trusteeship to the founder or his heirs which is applicable only to charities founded by Hindus, no Hindu Law text or Commentary was cited; and in Mussamat Jai Band Ktmwar v. Chattar Dhare Sing (1870) 5 Eng. B.L.R. 181 (same case 13 W. R. 396, in which the doctrine was first formulated, the learned Judges do not treat it as one based on Hindu Law or Usage. They say that as one of the provisions of the trust, that which related to the management failed, and as the idol cannot manage the property, the managership must revert to the heirs of the person who endowed the property. I am unable to see why it must; in the absence of any person nominated for the purpose of appointing new trustees by the deed of endowment and in the absence of a statutory power, the Court will appoint a person to carry out the trusts. (Perry on Trusts Section 294.)
13. A Hindu who makes a gift to an idol or founds a charity does not resort to the machinery of trusts, but makes a direct gift to the charitable object which is conceived of as a juridical person; and there is no need of incorporation either. In such a case where he does not appoint another person to manage the properties so given, or settle a scheme for such management, as he is entitled to do at the time of the endowment and as a part of the same transaction, the natural presumption or the legal inference is, that he intends to manage the property himself on behalf of the charity or reserves the management to himself. Such management may pass to his heirs by inheritance, just as a legal estate of herit&nce; may pass in England. That is the utmost extent to which the decisions of the Privy Council take us, though no doubt in Gossamee Sree Greedharreejee v. Rumanlolljee Gossamee (1889) 16 I.A. p. 137, Peet Koonwar v. Chuttur Dharee Singh (1870) 13 W.R. 396 was approved. It is to be observed, however, that the principle of Hindu Law - it is here for the first time it is said to be a principle of Hindu Law - which their Lordships lay down is, 'that when the worship of a Thakoor has been founded the Shebaitship is held to be vested in the heirs of the founder in default of evidence that he has disposed of it otherwise or there has been some usage, course of dealing or some circumstance to shew a different mode of devolution.' In a very recent case, Mohan Lalji v. Gordhan Lalji Maharaj (1912) L.R. 40 IndAp p. 97, their Lordships explained that the vesting of the management in accordance with the rules of inheritance applicable to private ptoperty, 'must from the very nature of the right, be subject to the condition that the devolution in the ordinary line of descent is not inconsistent with or opposed to the purpose the founder had in view in establishing the worship.' It seems to me fairly clear from the above observations that whatever other rights the founders' heirs may have, they had no right of nomination; for even if they were incompetent to perform the Sheba or worship, they were not incompetent to nominate persons qualified to perform the worship; and their Lordships do not appear to contemplate the existence of a power of nomination at all, which power is certainly not necessarily appendant to the trusteeship or Shebaitship as is assumed in the Allahabad cases.
14. The only case in which the foundation of this doctrine of reversion of management or the power of nomination is examined is Sital Das Babaji v. Protab Chandra Sarma (1909) 11 C.L.J. 2. There Mookerjee J. after stating the two propositions both of them well established, namely (1) that the devolution of the management of the trust depends upon the terms of its original constitution whether they are proved by direct evidence as for example the production of a deed of endowment, or by the proof of usage, (2) that the office of Shebait is held to be vested in the founders' heirs in default of evidence that he has disposed of it otherwise, proceeded to lay down a third proposition and said that 'from these propositions it necessarily follows that when a Shebait appointed by a founder fails to nominate a successor in accordance with the condition or usage of the endowment the management reverts to the representative of the founder.' As I have said already I am unable to see the necessity. Where a founder commits the management of the charity to a trustee, the presumption raised or the legal inference drawn in cases where he makes no arrangement for the management, does not arise; and there is no presumption under the Hindu Law, any more than under the English Law, that he reserves any right of interference or reversion of management after he has once definitely placed the properties given by him in the possession and management of third parties. In a later case Raj Krishna Dey v. Bepin Behari Dey I.L.R. (1912) C. 245, that same learned Judge after stating the above 3 propositions held that on the failure of the scheme of management originally provided by the founder at the time of the foundation, it became incumbent on the representatives of the founder to make an appointment of a Shebaitt Why the Shebaitship did not vest in all the representatives of the founder according to his third proposition is not clear. If it did the decree should be for settlement of a scheme providing for the actual exercise of the functions of the Shebait, by the numerous persons in whom that office vested as suggested in Ramanathan Chetty v. Murugappa Chetti I.L.R. (1906) M 29., and not for the appointment of a trustee. It appears to me that these cases treat the trusteeship or Shebaitship as a species of private property which is vested as an absolute estate of inheritance in the founder, an estate in fee simple if I may borrow an expresion from the English Law of Real Property, from out of which the founder is entitled to carve out a particular estate retaining the reversion which again becomes an estate in possession vesting in him or his heirs as the case may be, on the determination of the particular estate, the founder or his heirs being entitled either to enjoy it themselves or again to carve out a particular estate therefrom. This is to some extent natural if we remember that in northern India private religious endowments, as for instance to family idols, are very common. That certain kinds of 'She-baitships' are treated as private property capable of being transferred by act of parties, and of being actually divided into shares is clear from Tripurari Pal v. Jagat Tarini Dasi L.R. 40 IndAp p. 37 where a devise of Shebaitship was without question assumed to be valid and from Kunjamoni v. Nikunja Behari Doss 22 C.L.J. 404 where its partibility was assumed. It need scarcely be pointed out that the office of trustee as we have in this case is inalienable and cannot be delegated, and any notion of their alienability, is contrary to the express decisions of the Privy Council as regards the trusteeship of Hindu Religious Endowments and religious offices. In several cases in this Court alienation of the trustee office which could have been supported as an exercise of the power of nomination if any such existed were held to be wholly void.
15. The assumption made in the Allahabad cases that a power of nominating new trustees is a right appendant to trusteeship.appears to me, with all respect, to be equally contrary to settled principles. An appointment of new trustee by the existing trustee or trustees is in effect nothing less than the transfer of the trusteeship, and a power to appoint new trustees cannot exist unless given by the founder at the time of foundation (see Perry on Trust, Section 287).
16. Mookerjee, J. also compared the rights of the Hindu charit able donor or his heirs to the rights of the founder of eleemosynary corporations. In the first place the establishment of an idol, the building of a temple, mutt or chatt Ram or the endowment of property for their upkeep and maintenance may not be a 'foundation' at all and the principle of Hindu Law laid down by the Privy Council does not appear to be confined to charity corporations. Further though I have no precise notion of the nature of the rights of patronage and visitation vested in the private founder and his heirs, so far as I understand it, such rights cannot from the nature of the case, include a right of nomination of trusteRs. See Lord Holt's opinion in Philips v. Bury 2 Term Rep. 352.
17. It remains now to consider the decisions of this Court. In appeal No. 50 of 1850 the Sudder Court held in general terms with reference to a katlai in the famous temple at Madura that the founders' representatives - I am using the term 'founder' in this judgment generally in the sense of donor of property to charity - had no right to interfere in any way in the management unless a power was reserved at the time of the gift. In appeal No. 52 of 1857 a right to appoint was upheld as such a power was found on the evidence to have been given by the founder.
18. The most important case in this Court, however, is Sathappayyar v. Periasami I.L.R. (1889) M. p. 1. That was a case of a private religious endowment called the Sattappayyar Mutt which was first established by one of the Zemindars of Sivaganga. The position of the head of the Mutt towards the endowment was not merely that of a secular trustee; he was himself a beneficiary under the endowment, he being entitled to the income of the properties subject to certain disbursements. The Sivaganga Zemindars and the members of their family were beneficiaries only in a spiritual sense. The mode of succession prescribed by the original endowment was, for each head of the mutt called Sathappayyar, to appoint his successor. The last Sathappayyar who so succeeded was found guilty of breach of trust and was removed and there was a vacancy which could not be filled in accordance with the prescribed mode. The Zemindar of Sivaganga, the sole heir of the founder, - Sivaganga is an impartible Zemindary - prayed for possession of the endowed properties in order that they may be delivered over to another Guru to be appointed by him. It is not clear from the plaint whether he claimed the reversion of management or a right of appointment. The right of the plaintiff Zamindar is discussed in several places in the judgment. At page 7 of the report Muttusami Ayyar, J. than whom no one knew more of the religious and charitable institutions of this part of the country, said that 'Exhibit I, the deed of endowment, shows that the land in dispute was given for a specific religious purpose in order that that purpose might be carried out in perpetuity for the benefit of the grantor's family, and the respondent, as the representative of that family for the time being, is entitled to step forth when that purpose is neglected and the produce of the land is misapplied, and to ask the Court to prevent the misappropriation, and to see that the 'income of the endowment is applied to its legitimate purposes.' This passage does not necessarily mean that as representative of the founder the plaintiff was only entitled to invoke the power of the Court, but that that evidently was his opinion will be clear from other portions of his judgment. At page 12 he expressly negatived the right of reversion of management and the reason which he gives, viz. that on the construction of the deed of endow ment no such right can be deduced, conclusively shews that the very learned Judge never imagined that under the Hindu Law there was any such reversion on the failure of the otiginal line of trustees. The next paragraph is equally important. The first Court's decree which is set out at page 3 of the report declared that a trustee would be appointed by the Court after consulting the wishes of the plaintiff the Zamindar and the defendant the dismissed trusteee. The Zamindar the respondent insisted that the dismissed trustee should have no voice in the appointment, and that was allowed. He further claimed that the power of appointment vested in the Zamindar for the time being, that is, the heir of the founder. This again was negatived, for the right of nomination allowed to him, was in his capacity of one (though the most important) of the beneficiaries, and the concurrence of all the other beneficiaries was required. Even this right of nomination conceded to the beneficiaries, not be it noted to the heirs of the founder appears to be nothing more than a consultation of their wishes, though the decree is in a more positive form; in fact the learned Judge at page 12 states in terms that the only right which the plaintiff had was the right of a beneficiary under a private trust which is declared in Section 60 of the Indian Trusts Act That that was the opinion of Best, J. is clear; for he agreed in dismissing the memorandum of objections of the plaintiff Zamindar except in so far as it related to the dismissed trustee having a voice in the appointment of a new trustee. The reference to the decree in the order of reference was however made under a misapprehension.
19. I have dealt with this case at some length as I consider that this decision is authority against the propositions laid down by Mookerjee, J. though it is cited by him as supporting those propositions. For the same reasons I am unable to agree in the judgment in Buraiswamy Pillai v. Sandanathammal 1 on this point where moreover the right of nomination of fresh trustees was conceded to a Christian settlor I would therefore answer the question in the negative.