1. This was a suit to recover with mesne profits possession of the properties specified in the plaint from the defendants. The ground of claim is that they are comprised in the endowment of a Gosami Mutt and that they are improperly alienated to or retained by the defendant. The 1st Plaintiff was the chief or representative of the institution and upon his demise, the 2nd Plaintiff was brought in as his legal representative.
2. The Mutt is situated at the Village of Manthithope in the Ottapidaram Taluk of the District of Tinnevelly. After its founder, it is known by the name of Srimat Sankara Bharati Swami Adipam. In the Village of Manthithope, there are about 20 families of Gosamies who claim to be descendants of the original grantee and several of them are in possession of small portions of the endowments. The entire village was granted free of assessment to Sankara Bharati according to the Plaintiff, for the support of the Mattam and its charities. A Gosami is not a religious ascetic like a Sanniyasi or Tambiran who abjures the world and its pleasures and lives a life of celibacy--but a married man who is considered to live a pious life affording religious instruction to those who seek it from him--performing religious charities and delivering lectures on religious subjects and on the duty of man to God and to his fellow creatures. The specific trusts to which the income of the village is applicable according to the usage of the institution are found by the subordinate Judge to consist (1) in the distribution of Sadavritti (rice and condiments supplied in lieu of cooked food) in the Mutt to Gosayi and other pilgrims who pass through Manthithope (II) in the maintaining of Puja or worship in the temple called Sankara Bharatiswami Kovil, (III) in supporting a watershed or pandal at a place near the village called Ellentope and (IV) in providing maintenance to the descendants of the grantee. The eldest male representative of the eldest son of the grantee succeeds to the dignity of the chief of the Mutt and holds the village save such portions of it as have been alienated to others.
3. The properties forming the subject of this litigation are those parts of the Mattam endowment which have passed into the possession of the defendants. The 1st defendant's husband, Nataraja Bharati Gosamiar, was the brother of the 1st plaintiff's father, Sivaprakasa Bharati Gosami and on the 22nd May 1842, the latter executed in favour of the former the agreement (XIV) by way of making a provision for him and his family. The document purports to have been executed 'in accordance with the practice of our adinam.' It gives 1st defendant's husband certain lands and promises to give him a house and some jewels; utensils and cows &c;, soon after he is married. In return for this settlement, the 1st defendant's husband covenants to the following effect, 'I shall continue to enjoy the aforesaid properties from generation to generation and for ever shall conduct myself in accordance with your wishes and orders.'' After marrying the 1st defendant, her husband left the village about thirty years ago and hag not since been heard of and the land granted by Exhibit XIV passed into her possession on the 4th September 1885. She mortgaged it for Rs. 1,200 to the 2nd defendant, Anandanada Pillai, a stranger to the families of the descendants of the original grantee. As regards this land, the plaintiff's case is that the agreement XIV is invalid, that the land was granted in consideration of certain services which the first defendant's husband was to render in the Mutt and on the understanding that it was to revert to the Mutt, either in case he failed to render those services or died without male issue. On the other hand, the first defendant's contention is that the grant was not a service grant, that Exhibit XIV granted an absolute estate and that the plaintiff's claim was barred by limitation. The 2nd defendant's contention was to the same effect, except that he also set up against the plaintiff the mortgage in his favour. As regards items of lands 1, 2, 15 to 17 and 19 to 21, the plaintiff's case was that the 3rd defendant obtained them from the 1st Plaintiff's father on a patta for cultivation about 9 years ago and that he was bound to give them up on demand. But the 3rd defendant alleged that the original 1st plaintiff's father granted the lands in perpetuity for valuable consideration and that the 1st plaintiff ratified that grant by issuing pattas for the Andus 1054 and 1055 or the years 1879 to 1880.
4. Five issues were originally framed in this case. On the first issue, a former Sub-Judge found that the lauds in dispute belonged to the Muttam, on the 2nd issue, he held that the land which passed into the possession of the 1st defendant's husband was not held by him on service tenure, on the 3rd issue, he was of opinion that the claim was barred by limitation, on the 5th issue, he found that the settlement made by the 1st plaintiff's father was binding on his successors and upon those findings he dismissed the suit with costs.
5. In appeal, however, this Court set aside the decree on the ground that the investigation was defective and remanded the case for re-trial. With reference to the order of remand, four more issues were framed and the defects in the original inquiry remedied. In the 6th issue, the Sub-Judge found that the specific trusts of the Gosami Mutt were as already mentioned; on the 7th issue, he held differing from his predecessor that the maintenance of the descendants of the original grantee was a legitimate charge only on the income of the endowment and that the allotments of land made over to the 1st defendant's husband was not valid. On the 8th issue, he was of opinion that document XIV was genuine but that it was not valid so far as it related to allotment of land. He found, however, that the Head of the Mutt was entitled to the rent, but not to possession of the lands sued for.
6. As for the 9th issue, which related to the occupancy right set up by the 3rd defendant, the Subordinate Judge found in his favour. In the result he passed a decree declaring that the head of the Mutt possessed only the right of collecting rents due on the lands sued for under the provisions of the Rent Recovery Act for the benefit of the Mutt and the charitable institutions attached thereto and dismissing the rest of the plaintiff's claim. He directed the plaintiff to pay the costs of the 3rd defendant and 1st and 2nd defendants and plaintiff to bear his own costs. Against this decree the plaintiff has appealed and the 1st and 2nd defendants have objected to it under Section 561, Civil Procedure Code in so far as it is against them.
7. The first objection taken in appeal is that the suit is barred by limitation and that Section 10 of the Limitation Act is not applicable to a suit brought by a person succeeding to the office of a trustee. Reliance is placed on 8 and 4 William IV, Chapter 27; Section 25; Section 10 of the Indian Act of Limitations specifies as exempt from its operation suits against a person in whom property has become vested in trust for any specific purpose or against his legal representatives or assigns not being assigns for valuable consideration, for the purpose of following in his or their hands such property; unlike the provision of the English Act, Section 10 does not state that the plaintiff ought to be a beneficiary or beneficiaries, whilst according to 8. 437 of the Code of Civil Procedure a trustee represents the persons beneficially interested when the suit is concerning property vested in a trustee, and the contention is between the persons beneficially interested and a third party. It must be remembered that the plaintiff is not the alienor and as the present manager of the Mutt, he is entitled to sue the assigns of his pre-decesor in office on the ground that the assignment was in violation of the trust. This view is in accordance with the decisions reported in Mahomed v. Ganapati, I. L. R 13 M 277 and Jamal Saheb v. Murgaya Swami, I. L. R 10 B 34
8. It is next urged on appellant's, behalf that the Subordinate Judge is in error in holding that appellant was only entitled to rent and hot to actual possession of the land in dispute. The Subordinate Judge considers that if pattas are issued under Act VIII of 1865, landholders are not entitled to eject their tenants but can only claimrent. He appears to have misconstrued Section 12 which regulates the mode of ejectment and provides that the landholders specified in Section 3 are not empowered to eject their tenants from their lands except by a decree of court or under Section 10 or 41 of the Act. In the true construction of Section 12, the issue of a patta is clearly not intended to do more than prevent arbitrary ejectment of tenants or to give them a right of permanent occupancy, though the grant or contract under which their possession, commenced creates either a limited estate or a terminable holding. The Subordinate Judge refers in paragraph 31 of his judgment to an admission by plaintiff that 3rd defendant has been in possession under a lease granted by 1st plaintiff's father for 9 years, but this circumstance is not sufficient to support the finding that the former has a permanent right of occupancy. In our judgment the appellant's contention must prevail.
9. The real question then is whether, having regard to the grant or contract under which defendants' possession commenced, they were entitled to continue in possession and legally resist plaintiff's claim to eject them. Exhibit XIV is the Kararnamah on which 1st defendant's title rests and we agree with the Sub-Judge that that document is genuine. There is no doubt that it is not a mere maintenance grant but a grant of an absolute estate as alleged by 1st and 2nd defendants. The words 'from generation to generation' and the absence of any clause, prohibitive of alienation are consistent only with the view that the intention was to create an absolute estate not a limited one merely. That this is the proper construction to be put on the document XIV is confirmed by the terms of similar grants made by some of the plaintiff's predecessors to their brothers. As recited in document XIV it appears to have been customary in the Adinam for the head of the Mutt for the time being to make a provision for his younger brother by grant of land to, him and his heirs. This brings under our consideration the contention on Respondent's behalf that the original grant of the village of Manthithope was not a grant of an endowment in trust for the Mutt and the charities connected therewith, but a grant of property to the original grantee on which certain trusts were engrafted so as to impose on him an obligation to apply a portion of the income of the village to those trusts. We do not consider that this contention is tenable. The Sub-Judge discusses the evidence on the subject under the 1st issue and decides that issue in plaintiff's favour. But the 1st and 2nd Respondent's pleader draws our attention to Exhibits W, R, T, Q, 27, 31, 32, 14, 17, 28, 29, and 30, to Exhibits 15, 16, 18, 19, 20 21, 25 and 26 and to the oral evidence of plaintiff's witnesses 1, 2. 7, 10, and 4 and of defendant's witnesses 2, 3, 8, 9, and 10. Exhibit W is the original grant dated Andu 719 (1544) and purports to be a grant of the village of Manthithope made by Viswanatha Naya's Dewan Thiruvengada Nadha Naiker to Sankara Bharati Tamburan to be held and enjoyed free of assessment so long as the sun and ' moon endure from generation to generation. It says that the grantee is 'thus to improve the Mutt, maintain the charity and be happy.' There is no allusion in the inscription to maintenance and the grant contemplates the improvement of the Mutt and the maintenance of the charity as its primary object. Stress is laid on the words 'from generation to generation' and on Sankara Bharati instead of the Mutt being named as the grantee. But this is not conclusive. The subsequent usage of the institution and several other Exhibits in evidence are inconsistent with this contention and show that Sankara Bharati was probably named as the grantee because the Mutt was his Mutt.
10. Exhibit R, is the Inam title deed dated 1st February 1866. It was issued to the manager for the time being of Sankara Bharati Tambiran Mutt by the Inam Commissioner on behalf of the Governor in Council. It confirms the village to the manager and his successors tax-free to be held without inteference. 'so long as the conditions of the grant are duly fulfilled.' It is not possible to reconcile this document with the respondent's contention. Exhibit B is the register of Inams prepared by the Inam Commissioner. In that it is recorded that the grant was made for the support of the Gosai Muttam at Manthithope and that the Muttam is well kept up. Exhibit C is the Inam statement put in by the plaintiff's father and the grant is described in it as made by the former Government for the maintenance of the charities conducted in Sankara Bharati Tambiran's Muttam.
11. Exhibits T and Q are yadasts addressed by Tahsildars to Plaintiff's father which tend to show that the object of the grant was as found by the Subordinate Judge. They are dated respectively in 1872 and 1882. It is contented on behalf of the first defendant that they are not evidence against her. They are admissible however, as indicating the general consciousness as to the nature of the grant.
12. Exhibit 27 is the Ayakat account of 1803 in which the village of Manthithope is entered as 'Suddamaniam Village belonging to Grssamiars.' There is nothing to indicate that the object with which it has prepared was to show the precise nature of the grant and it is not safe to attach weight to it.
13. Exhibits 31 and 32 only show that it was customary for the chief of the Mutt for the time being to allot lands for the maintenance of his Junior sons when he has several sons and to his brothers and that this practice was followed in 1879 and 1877. Exhibit XIV under date May 1842 which is the grant relied on by 1st and 2nd defendants shows that prior to it there had been similar grants.
14. Exhibit XXVIII is a Jamabundi account and gives no useful information.
15. Exhibit XVII which was a great for maintenance made in 1888 describes the usage of the Mutt as regards such grants in the following terms: 'As among the hereditary descendants of our adinan, be the number of brothers what it may in each generation, when the eldest of them who is the heir-apparent to the dignity comes to be the head of the Mutt it has been the practice with such eldest brother to allot to his younger brothers for their maintenance certain lands, maniyams, houses and grounds and such other properties as may be sufficient therefore and thus to separate them after obtaining from them written agreements for the same.'
16. Exhibits XXIX and XXX are the Razinamahs in O. S. 381 of 1861 and the written statement in O. S. 139 of 1860. They also show that maintenance grants were usually made and no partition was allowed.
17. The other Exhibits to which Respondent's pleader has drawn our attention are hypothecation bonds and mortgages executed by those to whom lands were granted for maintenance. The effect of the oral evidence is sufficiently stated by the Subordinate Judge and it is unnecessary to recapitulate it.
18. Neither the oral nor the documentary evidence proves the Respondent's case that the village was originally granted as private property and not as an endowment. The evidence taken as a whole points to the conclusion that the village was granted as an endowment for the Mutt and the charities connected therewith. Having regard to the usage of the institution, the specific trusts are (1) the up-keep of the Mutt (2) the distribution of Sadavarties to Gosayi pilgrims (3) the performance of puja in Sankara Bharati Swami Kovil (4) the maintenance of watershed at Ellantope and (5) the support of the descendants of the grantee.
19. The evidence does not show that at each generation the village was divided subject to the obligation of contributing to the cost of maintaining the charities or that any portion of the village was specially set apart as trust property and the rest as partible property, as would ordinarily be the case, if the villages were granted for the personal benefit of the grantee and his heirs, subject to the fulfilment of certain trusts annexed to the grant. The conclusion to which we come is that the village was granted as an endowment for the Mutt and the charities connected with it and that what might remain after the due execution of those trusts was intended to be applied to the maintenance of the grantee or his descendants. It has no doubt been usual from before 1840, for the head of the Mutt for the time being to make provision for his brother or junior sons, but such grants would be valid only if they were real maintenance grants. The Subordinate Judge considers that only money payments should have been made and that no lands ought to have been allotted. We do not concur in this opinion. Whether maintenance is provided by an assignment of land or paid in cash from time to time, there is no difference in principle, provided that the allotment is purely by way of providing maintenance. That which vitiates the allotment is its character as an absolute grant and the grant is bad to that extent. The first defendant being by marriage part of the family of a descendant of the grantee the grant should be declared to be valid during her life and liable to revert to the representative of the Muttam or her death. The decree of the Subordinate Judge must therefore be set aside so far as it declares that the plaintiff is entitled to rent and a decree be passed declaring him entitled to hold the lands on and after the demise of the first defendant. Each party will bear his or her own costs.