John Wallis, C.J.
1. In Appeal No. 36 of 1911 : This appeal relates to the headship of the wealthy Mutt or Adhinam of Dharmapuram in the Tanjore District the affairs of which are unfortunately the subject of endless litigation before us. Sivagnana who was for many years Pandarasannadhi or head of the Mutt filed O.S. No. 86 of 1906 in the Subordinate Court of Kumbakonum to set aside a deed of relinquishment Ex. S. executed by him in 1903 in favour of Manikkavasaka, the defendant in this suit, whom he had previously ordained and nominated as junior Pandarasannadhi with the right of succession according to the custom of the institution. Sivagnana died shortly after the institution of the suit and the present plaintiff sought to be brought on the record as his legal representative on the ground that the day before he died, Sivagnana had ordained him and executed a will in his favour. It was held by the Subordinate Court, and by this Court on appeal, that the plaint in O.S. No. 86 of 1906 called in question the right of the defendant to be junior Pandarasannadi as well as his right to enjoyment of the Mutt properties under the deed of relinquishment, and it was accordingly ruled at the instance of the present plaintiff that the suit did not abate on Sivagnana's death, and under Section 367 of the Civil Procedure Code, the Court stayed the suit and left the plaintiff to bring the present suit against Manikkavasaka to establish that he is the legal representative of the deceased Pandarasannadhi and so entitled to continue O.S. No. 86 of 1906.
2. This suit necessarily involves the question whether the defendant Mannikkavasaka had been lawfully appointed junior Pandarasannadhi, and also the further question whether he was lawfully removed during the life time of Sivagnana, as, if not, he and not the plaintiff is the legal representative of the deceased. Accordingly the pleadings and issues in this case cover much the same ground as the principal suit. During the pendency of this suit the defendant Manikkavasaka has also died after nominating and ordaining a successor who has been brought on the record as his legal representative, so that the contest is now between the plaintiff claiming as nominee of Sivagnana and the present respondent claiming as the nominee of Manikkavasaka.
3. The Subordinate Judge has dismissed the plaintiff's suit on two grounds that Manikkavasaka must be taken to have been validly appointed and not to have been removed and that he was consequently Sivagnana's legal representative, and secondly on the ground that the plaintiff has failed to prove the will and ordination on which he relies to establish his character of legal representative. Either of these findings is sufficient to dispose of the present suit.
4. As pointed out by the Subordinate Judge in his very careful Judgment, this case is the, last stage in a long dispute between the defendant and an opposing faction in the Mutt headed by one Somasundara Thambiran, who at one time belonged to the institution and subsequently became the head of the wealthy Tiruppanandal Mutt. These opponents of the defendant endeavoured in the first instance to prevent his nomination as junior Pandarasannadhi and afterwards to get that nomination revoked. In the course of the dispute we find Sivagnana a weak and feeble old man embarrassed by the load of debts accumulated by his management acting under the influence first of one side and then of the other.
5. We first find him ordaining and nominating the defendant on 22-4-1900 (Ex. XXIII) in spite of the pendency of a suit,-subsequently dismissed - to prevent him from making the appointment, and then on 27-9-1900 giving a power of attorney to the defendant. On 19-0-1901 he cancelled the power by Exhibit MM. which contained injurious charges against the defendant. The defendant on 2-7-1901 by Exhibit UUUU surrendered the properties he had taken possession of under the power, and a few days later Sivagnana executed X by which he withdrew the charges against the defendant contained in Exhibit MM. Two months later on 12-9-1901, he purported by Ex. X to remove the defendant from the position of junior Pandarasannadhi on account of malversation and on vague charges of sexual immorality of which no particulars whatever were given. Thus challenged the defendant preferred a criminal complaint against him for defamation, and also filed a Civil Suit O.S. No. 74 of 1901 questioning his alleged dismissal. The next thing was that a compromise was arranged. The defamation case was withdrawn, and the suit was settled by a razinamah Ex. P 2 in which it was recited that the defendant Sivagnana had on further enquiries ascertained that the accusations made against Manikkavasaka were groundless, and that there were no reasons for dismissing him, and by which his right was recognised and it was further agreed that certain properties belonging to the Mutt should be handed over to him. On this a decree Ex. P 1 was passed on 2-1-1902 declaring him to be the junior Pandarasannadhi and the deed of dismissal to be null and void, and restraining Sivagnana from appointing any one else as junior Pandarasannadhi.
6. Eighteen months later on 7-6-1903 Sivagnana executed a deed pf relinquishment Ex. S by which he retired in favour of the defendant, and sometime afterwards made his way to Benares. He returned from Benares early in 1906 and went to stay with the defendant's enemy Somasundara at the Tiruppanandal Mutt whence he sent the defendant on 12-5-1906 a notice, Ex. T of his intention to file a suit for declaration that Ex. S was invalid and to recover the Mutt properties. A suit was subsequently filed as O.S. No. 86 of 1906 for that purpose. It has been contended before us that Ex. T amounted to a fresh dismissal of the defendant from the office of junior Pandarasannadhi, but we do not so read it. There is, however, oral evidence that on two occasions after his return Sivagnana purported to dismiss the defendant from this office also. Sivagnana died on the morning of the 1st December 1906, as alleged by the plaintiff, or on the evening of the 30th November as alleged by the defendant. According to the plaintiff's case Sivagnana conferred abishekam upon him on the 30th and also executed a will Ex. W nominating him as his successor, but the finding of the Subordinate Judge is that the alleged abishekam and will have not been proved. This is a brief statement of the facts which are more fully set out in the Judgment of the Subordinate Judge.
7. The fifth and sixth issues dealt with' the validity of the defendant's original appointment, and with the question whether Sivagnana was entitled to dismiss him, referring to the first dismissal under Ex. K.
8. It appears from a note made by the Subordinate Judge in his record of the evidence that it was arranged, probably at the suggestion of the defendant's pleaders, that evidence on these issues should be reserved until after the disposal of issues 7 to 8 as to the compromise decree in O.S. No. 74 of 1901 which if found in favour of the defendant would make issues 5 and 6 unnecessary.
9. It will be convenient to consider in the first place whether the compromise decree in O.S. No. 74 of 1901 is valid and binding. As already stated it was entered into after Sivagnana had purported to dismiss the defendant by Ex. K and defendant had replied by filing a complaint for defamation and a suit to declare the alleged dismissal illegal. The Subordinate Judge has found that it was brought about after protracted negotiations and on the independent advice of persons who had the interests of the institution at heart and not by means of any pressure or oppression on the part of the defendant. If Sivagnana was not in a position to justify the charges he had made against the defendant, it was eminently proper for him to withdraw them, instead of committing the Mutt to further ruinous litigation. I do not however consider it necessary to pursue the matter further, because in my opinion the consent decree in O.S. No. 74 of 1901 was binding on Sivagnana and is also binding on the present plaintiff who claims through him, and even if there had been any grounds for setting it aside by suit, such a suit became barred during the lifetime of Sivagnana. A consent decree is binding on the parties to the suit until it is set aside just as much as if it had been passed after contest. Fateh Ghanad v. Narasing Das (1912) 22 C.L.J. 383, citing In re South American and Mexican Banking Co. (1895) 1 Ch. 37. The effect of the consent decree in O.S. No. 74 of 1901 is to establish as against Sivagnana and those who like the present plaintiff claim through him that the defendant had been duly appointed junior Pandarasannadhi and continued to hold that office at the date of the decree. Consequently, unless he was subsequently removed, he was junior Pandarasannadhi at the death of Sivagnana and then became his legal representative and entitled to succeed to his office. As regards the alleged illegality in the compromise decree in so far as it restrains the plaintiff from removing the defendant in case of future misconduct, I do not think that this would be any ground for setting aside the decree altogether in a suit by Sivagnana for that purpose, for it does not affect the consideration obtained by Sivagnana for entering into the compromise. See also Kearney v. Whitehaven Colliery Co. (1893) 1 Q.B. 700.
10. It is, however, found by the Subordinate Judge that after his return from Benares in 1906 Sivagnana purported to dismiss the defendant and it is contended that these dismissals were operative. To succeed in this contention it would be necessary for the plaintiff to get over the deed of relinquishment Ex. S executed in 1903 by Sivagnana in favour of the defendant which is attacked among other grounds as having been procured by coercion and undue influence and so liable to be set aside in the present suit. It is however, unnecessary to consider this question because assuming that Sivagnana continued to hold the office of Pandarasannadhi after the execution of Ex. S, and that as such he was empowered to dismiss the defendant from the office of junior Pandarasannadhi, it is not shown that the defendant received any notice or was given any opportunity of answering the charges on which Sivagnana purported to dismiss him. It has been contended before us that the defendant only held office at the pleasure of the Pandarasannadhi and that consequently the latter was entitled to dismiss him without giving him any opportunity of being heard. The nomination and ordination of a junior Pandarasannadhi is the customary manner of providing for the line of succession in Mutts of this kind, and it is not shown that the Pandarasannadhi has any power of arbitrary dismissal, while on the other hand, it has been held, in a previous suit relating to the institution that he may dismiss for good cause. In Vidyapuma Thirthaswami v. Vidyanidhi Thirthaswami I.L.R. (1904) M. 435, where the question was whether a Pandarasannadhi forfeited his position as such by reason of lunacy recourse was had to the analogies of the Canon Law, and applying those analogies to this case, the position of the junior Pandarasannadhi during the lifetime of the elder would appear to be that of a co-adjutor with the right of succession, a right of which he cannot be deprived except for grave cause. When an office is held at pleasure the incumbent may be removed even on charges of misconduct without any opportunity of being heard, because he is removable at pleasure without any misconduct at all, but in all other cases, 'the objection for want of notice' 'in the language of an old case' 'can never be got over. The laws of Clod and man both give the party an opportunity to make his defence if he has any.' Rex v. Chancellor and Master of the University of Cambridge (1723) 1 Str 557, and Cooper v. The Wandsworth, Board of Works (1863) 14 C.B.N.S. 180. In Willis v. Gipps (1846) 5 M.P.C. 6 State Times New Series 311 the principle was applied to the case of a Colonial Judge who held office at the pleasure of the Crown but was also removable under a statute by the Governor and Council of the Colony for neglect of duty or other misbehaviour and it was held by the Judicial Committee that this order of amotion was bad because made without notice. It is. not suggested in the present case that any notice was given to the defendant by Sivagnana of the charges on which he purported to dismiss him after his return from Benares, and consequently such dismissal is wholly void and inoperative and the defendant, if he had not already succeeded by virtue of Ex. S, remained the junior Pandarasannadhi and on Sivagnana's death was his legal representative and entitled to succeed him. This is sufficient to dispose of the present case, but as to the other part of the case I may say that after listening to the elaborate arguments which have been addressed to us I am not prepared to differ from the finding of the Subordinate Judge that the Abishekam of the plaintiff and the alleged will of Sivagnana in his favour have not been proved. The appeal is dismissed with costs.
11. Appeal No. 22 of 1911 and Civil Kevision Petition No. 25 of 1911 follow and are dismissed with costs.
Seshagiri Aiyar, J.
12. In O.S. No. 86 of 1906 Sivagnana Desika Gnana Sambanda sued for a declaration that Manicka Vachaka Desika was not the Pandarasannadhi of the Dharmapuram Mutt and that the compromise entered into in O.S. No. 74 of 1901 is not binding on him. Sivagnana died on the 1st of December 1906, while the original suit was pending. The present plaintiff claimed to have been nominated by Sivagnana as his successor and applied to be brought on the record as his legal representative to continue the suit against the defendant. Manicka Vachaka, the defendant, pleaded that the suit abated with the death of Sivagnana and that plaintiff was not the legal representative of the deceased. On this application to be brought on the record the High Court agreeing with the Court of First Instance directed the plaintiff to establish his claim as the legal representative in a regular suit. The present suit, O.S. No. 53 of 1907 is the outcome of that order.
13. The plaintiff's case is that Sivagnana appointed him as his successor by a will executed on the 30th of November and that the necessary ceremony of Abishekam was performed on that day. He impeaches the validity of Manicka Vachakar's nomination by the will of Sivagnana on the 22nd of April 1900 on various grounds. He says that the will was brought about in order to avoid a conviction for defamation and that it was cancelled by the later will of the 12th September 1901. He further alleges that Manicka Vachaka was unfit to be a Pandarasannadhi in consequence of immorality and that Sivagnana validly revoked the nomination. As regards the compromise in O.S. No. 74 of 1901, the plea was that it is ultra vires in that it restrained Sivagnana from making any further appointment and that it was beyond the power of a Pandarasannadhi to consent to the terms embodied in it. The relinquishment of the 7th June 1903 is attacked on the ground of undue influence. The plaintiff prays for a declaration that the defendant was not the lawful Pandarasannadai of the Pharmapuram Mutt and for the recognition of his right to succeed Sivagnana.
14. The defendant (who died pending the appeal after nominating his successor who is the present respondent) traversed all the allegations and maintained that his nomination was proper and valid, that the razinamah was binding on Sivagnana and that the relinquishment clothed him with full rights even during the life-time of Sivagnana.
15. Before discussing the various questions of law which have been very ably argued in the appeal, I shall deal with issues 3 and 3(a) which relate to the plaintiff's nomination. The Subordinate Judge has dealt with this question at considerable length and although I am not prepared to agree-with all the reasons given by him, I agree in the conclusion at which he has arrived.
16. The will is said to have been made on the afternoon of the 30th November in Tiruppanandal, where Sivagnana had been living since his return from Benares 6 months ago. Sivagnana died on the morning of the 1st of December. The will, Ex. W, was not registered. Evidence has been let in to show that one Muthu Aiyar was asked at about 5 P.M. to go to Thiruvadamarudur (8 miles from the place) to bring the Sub-Registrar. Muthu Aiyar went there only next morning with. Exh. SS. The Sub-Registrar learnt at about 7-30 that the testator was dead and therefore did not go to Tiruppanandal. The will was apparently thought of on the 29th according to the plaintiff, and if that is true, it is impossible to believe that the Thambiran of Tiruppanandal Mutt who was helping Sivagnana, who was a gentleman of great influence would not have sent a messenger to Thiruvadamarudur early in the day on the 30th to bring the Sub-Registrar. There is considerable force in the suggestion of Mr. Sadagopachariar that Exh. SS was written to create evidence and not with the intention of procuring the attendance of the Sub-Registrar. Another circumstance is that the will does not refer to Abishekam which according to the evidence preceded its execution. Mr. Sadagopachariar's suggestion that this important matter was left out because there was no Abishekam and that the will when got up did not therefore mention it is entitled to weight.
17. A significant fact is that Somasundara Thambiran, the head of the Tiruppanandal Mutt did not attest the will. It was under his protection the testator lived. There can be no doubt that he was the man on whom Sivagnana relied for everything. If it was a genuine will his failure to attest is not easily explainable. It is true that all the attesting witnesses have been examined in the case and support the will. Almost all of them were under the influence of Somasundaram, No doubt at Tiruppanandal it is riot easy to get witnesses who would not be beholden to the head of the Mutt in some way or other. At the same time too much stress should not be laid on the number of attestors and their consistency in supporting the will. I do not think that the evidence of D.W. No. 2 is entitled to credit when it is not supported by his certificate Ex. XVII. I see no reason to think that the Sub-Assistant Surgeon was not speaking the truth. Even on that evidence I must say that the signatures in Ex. SS and W do not satisfy me as those of the testator. They are not those of a person who had gone through the fatiguing ceremony of Abishekam an hour earlier and who died the next day. I do not think it fair to compare these signatures with that in Ex. XIII(c); because it is clear to my mind that Sivagnana was feigning illness at that time. The Subordinate Judge is apparently of opinion that the draft will was itself a concoction. Although to my mind the language of the document shows that it was not the production of Mr. Ramasubbier, there are ample grounds for believing that this draft was in existence before the ;29th of November. The pencil interlineations by Somasundara show that he wanted the will to contain a clause enabling the plaintiff to prosecute the suit. It was scored out. If it was a concoction after the 1st of December such an interlineation would not have taken place. Nor am I satisfied that pleader Doraisami Pillai was not speaking the truth when he said that he had the will on the evening of the 1st of December. What he says about what he heard before he started for Tiruppanandal must be due to lapse of memory. It is curious that the will should have been handed over in such hot haste to Doraisami Pillai. I, however, see no reason to disbelieve his evidence. The will was apparently brought into existence before Doraisami Pillai arrived and it was thought safer to entrust it to a respectable pleader than to keep it at Tiruppanandal. On the bread facts of the case, I am not satisfied that the evidence adduced by the plaintiff is sufficient to establish the genuineness of the will. I agree with the findings of the Lower Court on these two issues. Even if the will be true, if the plaintiff did not go through the ceremony of Abishekam, he has no locus standi; for it is by that ritual, the nominee acquires the right to be installed as Pandarasannadhi. There is a considerable body of evidence on this question. To my mind the non-mention of it in Ex. W is fatal to this part of the case. The entry of the expenses in the Mutt account does not carry the matter any further. I attach very little importance to what the Sub-Judge considers to be developments in the story; for after the cross-examination was directed to details, the plaintiff's legal adviser would naturally elicit those details in the examination-in-chief. I agree with the Subordinate Judge that the performance of Abishekam has not been satisfactorily proved.
18. These findings would ordinarily be enough to dispose of the appeal, but as the right of the defendant has been strenuously attacked on various grounds it is desirable to state our conclusion on the various points in controversy so that there may not be room for future litigation.
19. Mr. Srinivasa Aiyangar contended that in order to succeed in the suit all that need be shown by the plaintiff is that he acquired all the rights which Sivagnana was capable of conferring on his client, and that the rights of the defendant need not be gone into in this litigation. I do not think that this contention is well founded. The plaintiff as legal representative must show that he has stepped into the shoes of the deceased with all the attributes which he claimed. It is open to the defendant to prove that the deceased had no rights to transmit. The right' of representation is claimed with reference to an office, and it is undoubtedly within the competency of the defendant to show that the office was full and that there was no room for a successor. The learned Vakil's contention amounts to saying that the representation need only relate to all that the deceased was possessed of at the date of his death. This may or may not be the correct position to take where the deceased sued in his individual capacity. Probably in such cases, all that the applicant need show is that he is full heir to the party who is dead. But where the suit is brought in a representative capacity, the legal representative must show that the estate devolved on him. The estate in this connection is not the estate which the deceased had, but the estate which he represented, that is the estate to which he laid claim. If there was no estate outstanding, there can be no legal representation. I realise that the effect of such a decision is to compel the person seeking to come in as a legal representative to prove the very matters in controversy in the main suit. I do not see much hardship in this. To hold otherwise would be to expose the defendant to attacks from persons who could establish no claim to the trust of which he is in possession. In my opinion, the import of the words in Order XXII, Rule 3(1) 'where a sole plaintiff dies and the right to sue survives' shows that the applicant should be in a position to lay claim to the right which was agitated in the suit. Conversely the defendant can show that the person who seeks to continue the litigation had not acquired the right claimed, because that right was vested in himself. I am therefore of opinion that this objection fails.
20. In dealing with the right of the defendant, the first point on which Mr. Srinivasa Aiyangar laid great emphasis was that the position of a junior Pandarasannadhi is not a free hold office; but that it is a position held during the pleasure or will of the senior Pandarasannadhi, the appointer. I am not inclined to hold that it is a freehold office in the sense in which the Subordinate Judge designates it. But I feel no doubt that the appointee does not hold it at the will or pleasure of the appointer. Under the Hindu Law the property of a hermit or an ascetic is inherited by the preceptor and after him by his disciple: Mitakshara Ch. II, Section 8. See also Yajnavalkya Smrithi, Slokas 187, 188 and 191. In the cases of Mahants or heads of Mutt, the same rule would apply, although the precedence given to the preceptor is open to question. It is now well-established that the rule of succession among the Matadhipatis must be deduced from the usages of the Mutt. See Greedharee Doss v. Nundokishore Doss, Mohtmt (1867) 11 M.I.A. 405 and Ramalingam Pillai v. Vythilingam Pillai . In the first of these two cases, their Lordships of the Judicial Committee inclined to the view that the ordinary mode of succession in Mutts is by appointment of the successor by the predecessor either by will or by word of mouth. That is the practice in all the important Mutts in this Presidency. Now, the question is whether this power of appointment carries with it the absolute power of dismissal as was strenuously contended for by Mr. Srinivasa Aiyangar, or whether by the appointment, a status is acquired by the appointee which is not lost unless removed for good cause. After listening to the very able argument of the learned Vakil for the appellant, I feel no hesitation in holding that the appointer has not the absolute power to dismiss which is claimed for him. Before dealing with the cases cited, I shall refer to what takes place on the nomination of a successor in this Mutt. Ex. C, the plaint in O.S. No. 21 of 1900 mentions in para. 4, the ceremonies that have to be gone through in selecting a successor and also those which the person selected has to undergo-The most important of these is the Abishekam. The rites to be observed on this occasion are described by the plaintiff as his 33rd witness. This may be taken to represent correctly what happens when a junior Pandarasannadhi is anointed. It is also in evidence that the senior Pandarasannadhi himself offers puja to the junior, because by the Abishekam the junior attains godhead. The Abishekam enables the junior to initial e disciples himself. He performs separate puja to gods Vignesvara and Subramania. He is called the Sadhaka Acharya, or co-adjutor with the senior. These being the attributes with which the junior is invested, I am unable to accede to the suggestion that he acquires no status and his position is dependent on the goodwill of the senior. To my mind, by these ceremonies the senior is instituting an heir to himself. It may be that the analogy of the adopted son would not apply in all particulars. I am willing to concede that the right of removing the junior for proved misconduct inheres in the senior. Otherwise a person once anointed must be retained even if he has proved himself utterly unfit to hold the religious office. But the grounds of removal must be such as would disentitle the senior himself to continue in office. Subject to this reservation I am of opinion that the person appointed under a will and to whom Abishekam has been performed becomes the heir presumptive, entitled to succeed to the headship on the happening of a vacancy. Mr. Srinivisa Aiyangar relied strongly on Sitapershad v. Thakur Dass (1879) 5 C.L.R. 73. In that case, the right of appointment vested in the incumbent in possession. The Mutt was a mourosee Mutt, an incident of which was the right of selecting a successor vested in the Mahant for the time being., The report does not show that after the process of selection any ceremony was gone through by which the nominee became sanctified and competent to initiate disciples. Moreover, it was found in that case that the successor was found guilty of immoral conduct which led to his supercession. Mr. Justice Prinsep lays down too broadly in my opinion that the appointee holds his position 'until the appointment has been declared to be a bad appointment and invalid.' The learned Judge would give this right of declaration absolutely to the appointer. The facts of the case before the learned Judge might have justified that view. But I am not prepared to accept it as a general rule of law governing succession in similar institutions. Reference is made among the cases cited in argument to a decision of Glover and Romesh Chunder Mitter, JJ. to the effect that the appointment cannot be cancelled. The decision has not been reported and is not available for reference, Samarendra Chandra Deb v. Birendra Kishore Deb I.L.R. (1908) C. 777, was next relied on. In that case it was found that the Tipera Raj was entitled to nominate his successor as Job Raj from among the members of the family. It was not denied that the person so nominated would succeed to the Raja if he survived him. But it was contended that as the right of succession was contingent upon the plaintiff surviving the reigning prince, a suit for declaration will not lie. There were other important questions raised in the case. The Full Bench after deciding that the Calcutta Courts had no jurisdiction, held that the plaintiff was not entitled to a declaration. It is doubtful whether this decision is correct, having regard to the ruling of the Court of Appeal! n England in the Law Times Reports and to the provision and illustration to Section 42 of Specific Relief Act. The Calcutta High Court accepted the principle of the previous decision in Beerchunder Manikkya v. Rajcoomar Nobodeep Chunder Deb Burnumo I.L.R. (1893) C. 535. However that may be, these decisions are not authorities for the position that a junior Pandarasannadhi has not a recognised status which he can protect when that status is denied. Sellappaswamy v. Manikkaswamy (1911) M.W.N. 359, was disposed of on the failure to plead the proper cause of action and is not a considered authority binding on us.
21. The English decisions to which our attention was drawn by the learned vakil only lay down that the power to appoint carries with it the power to dismiss. That position is not denied here. The power no doubt can be exercised for good cause shown ; and especially in religious institutions where the appointment carries with it a certain dignity and is construed by worshippers as implying sanctity of the person, it would lead to disastrous results to hold that the appointee is dependent for his position on the will of the appointer. The attempt to show that the usage of the institution warrants the arrogation of such extraordinary powers has not been successful. The observation of the Subordinate Judge in MMM does not find support in the Appellate Judgment Ex. A. Exs. SSSS series only show that the junior Pandara, is subordinate to the Pandarasannadhi. I am clear that the usage of the institution does not justify the claim made on behalf of the appellant. On the other hand, there are numerous instances in this Presidency of the junior being regarded as the unquestionable successor to the office. The consciousness of the people is entirely opposed to the contention advanced in this behalf. This being my view, I do not consider it necessary to examine at any length the English decisions quoted by the appellant. In Marquis of Abergavenny y. Bishop of Llandaff (1888) 20 Q.B.D. 460, there was an absolute discretion given to the appointer. In The Queen v. Manchester and Sheffield Railway Co. (1854) 4 El. & Bl. 88, the appointment was to be during the pleasure of the person appointing. On the other hand, it was held in Wright v. Zetland (Marquis) (1908) 1 K.B. 63, appointees who held office during pleasure should not be removed without good faith. In a very elaborate judgment Bashyam Aiyangar, J compares the position of the head of the Mutt to a Corporation Sole and says that 'as in the case of a bishopric, perpetual succession in a Mutt is secured by the provision for nomination of a successor.' Doubts have been cast upon certain dicta in this decision in relation to the rights of property possessed by the head of the Mutt, but I do not think the principle which is enunciated in this sentence has even been taken exception to. My conclusions on this point of the case are : (a) that the head of the Mutt is entitled to appoint a junior Pandarasannadhi, (b) that this junior has a recognised status, (c) that he is entitled to succeed to the headship, if he survives the appointer, (d) that for good cause shown he can be removed, (e) that the tenure of his position is not dependent upon the good will of the appointer and(f) that it is not open to the head of the Mutt to dismiss him arbitrarily.
22. The next branch of Mr. Srinivasa Aiyangar's argument was directed to showing that the appointer is the solo Judge for ascertaining whether the appointee is guilty of conduct which disentitles him from continuing to hold on, and that Courts are not competent to scrutinise his reasons or to question his discretion. There have no doubt been cases where it has been held that the sufficiency of the reasons is not for the court, Hayman v. Governors of Rugby School (1874) 18 Eq. 28 and Hill v. The Queen (1854) 8 M.P.C. 138. In another class of cases it was held that where a club or association is proprietory, dismissal from it need not be after enquiry, Baird v. Wells (1890) 44 Ch.D. 661. It was contended that, this Mutt was voluntary association and that consequently the head of the association had plenary powers to expel a member including the junior Pandarasannadhi. I do not grant the premises. The origin of these Mutts has been explained elaborately by Sir Arthur Collins and Muthusami Aiyar, JJ. in Gyana Sambandha Pandara Sannadhi v. Kandasami Thambiran I.L.R. (1887) M. 375. It is enough to state for the purpose of this case that they ace not voluntary brotherhoods. They owed their existence in most cases to the piety of the ancient Rajas who founded Mutts to impart religious instruction; in some cases, the special sanctity of individuals was availed of by disciples to endow property to the institution founded in his name and honour. The fact that the Pandarasannadhi has a synod of Thambirans from whom he selects his successor does not make the Mutt a voluntary association. They are not proprietory clubs in the sense in which Stirling, J. uses the term in Baird v. Wells (1890) 44 Ch. D. 661. Green v. Howell (1910) 1 Ch. 495, only construes the articles of the association as conferring unrestricted powers of expulsion. On the other hand, in Willis v. Gipps (1846) 5 M.P.C. 379, the dismissal of a Judge without enquiry by the Colonial Governor, although the Judge held office only during the pleasure of the Queen was held invalid by the Judicial Committee. The general principle is well-established that no one who has a recognised status or office can be removed for misconduct without giving him an opportunity to show cause against his removal. I am therefore of opinion that the cancellation of the appointment is of no effect by itself. In this connection I cannot help expressing my regret that the Subordinate Judge should have declined to receive evidence on two of the issues in the case. In a case of such magnitude which engaged the attention of the Court for over 6 months, every part of the case should have been heard and adjudicated upon. However I agree with the learned Chief Justice that this case can be disposed of on the materials on the record.
23. Closely connected with the argument that the defendant could have been removed by Sivagnana without notice was the contention that the defendant forfeited his rights by the various acts of misconduct alleged against him, Ex. K. I am in agreement with Mr. Srinivasa Aiyangar that if the head of the Mutt or the junior is proved to be living an immoral life, he is liable to be removed. There can be no condonation of such an offence as in the case of breach of trust by trustees where it has sometimes been held that the full leach should be given an opportunity to mend his ways before bringing in an empty leach to feed on the trust resources. Celibacy and a scrupulous avoidance of sexual indulgences are of the essence of the position held by these persons. Devotees of both sexes resort for initiation to them and it would cut at the root of the whole system, if the heads of the Mutts are permitted to live profligate lives. In the Narada Smrithi, it is stated ^^jkt ,o fg nkl% L;kr~ [ky% izoztrksfi lu~AA**. This power possessed by the king is delegated to the Courts : and when a clear case is made out that a religious ascetic who ought to set an example of sexual purity is leading an immoral life, the courts will find no difficulty in dismissing him from office. But it does not follow that suspected immorality entails forfeiture. This would lead to complications and would encourage baseless insinuations. Until the accusation is openly made and found, the incumbent should not be disturbed from his office. The learned Vakil has quoted no authority for the extreme contention that a forfeiture is incurred by an ascetic's immoral conduct. '
24. I agree with the Subordinate Judge that the relinquishment by Sivagnana did not deprive him of his religious office. I understand Ex. S in the same way as he does. Moreover I am not satisfied that Sivagnana was a free agent at the time of the release.
25. The real point on which the defendant's right rests is the compromise evidenced by Exs. P 1 and 2. The facts leading up to the compromise are fully stated by the Subordinate Judge. The learned Judge in one place seems to suggest that the pendency of the criminal prosecution for defamation against Sivagnana was one of the factors which led to the compromise. The evidence of Mr. Krishnaswami Aiyangar which I see no reason to disbelieve makes it clear that Sivagnana was harassed in all ways, that he was an imprudent manager, had incurred heavy debts, found it impossible to carry on his religious and secular duties owing to the' number of claims made against him and that he sought relief from all this worry by making the defendant the virtual manager of the institution. He had competent advisers and influential adherents. I do not believe that the defamation case in any way affected the compromise. After all it was a compoundable criminal offence. I do not agree with the contention that the compromise was vitiated by any agreement to stifle prosecution. The next contention of Mr. Srimvasa Aiyangar is that as the compromise decree included an injunction restraining Sivagnana from making an appointment of a junior Pandarasannadhi under all conceivable circumstances, the decree is invalid altogether. It is true that the last clause is bad. As I have said already, the defendant was liable to be removed for good cause shown against him or he might die in the lifetime of the head of the Mutt. Therefore it was not competent to the Subordinate Judge to grant an injunction permanently depriving Sivagnana of the exercise of his power of making a fresh appointment. But, in my opinion this portion of the decree is severable from the anterior portion. The first part of it confers a right on the defendant; the second part enforces an illegal disability. The two are not so mixed up as to be inseparable. The true principle applicable to mixed stipulations of this nature has been thus stated by Lord Esher in Kearney v. Whitehaven Colliery Co. (1893) Q.B. 700, to which Mr. Sadagopachariar drew our attention : 'If the consideration, or any part of it, is illegal, then every promise contained in the agreement becomes illegal also, because in such a case every part of the consideration is consideration for the promise. But suppose there is nothing illegal in the consideration; then upon that valid consideration may be several promises or liabilities. If any one of those be in itself illegal, then it cannot stand, not because the consideration becomes illegal, but because the promise itself is illegal. It is a bad promise which cannot be supported by the consideration. But the other promises which are good and legal in themselves remain, and can be supported by the good consideration. The rule of law has long been acted upon, and it was applied by the House of Lords in the Netherseal case (1888) 26 Q.B.D. 606; on appeal (1889) 14 A.C. 228;' See also Newman v. Newman (1815) 4 M & S 66. Section 24 of the Contract Act is not against this view. I am therefore of opinion that the portion of the decree enjoining Sivagnana not to make any appointment at all can be severed from that portion of it which recognises the defendant's appointment. We have next to see whether as contended before us, Sivagnana was not competent to enter into this compromise. The objection is based on the ground that as the head of the' Mutt sues or is sued on behalf of the trust, he has no power to accept a compromise to the prejudice of the institution. Before dealing with the law bearing on the subject, it may be stated that in my view the compromise did not affect the usage of the institution in any way. By the compromise Sivagnana was only recognising a person who was entitled to succeed had there been no aspersions on, his character. Sivagnana in the compromise withdrew from the position of antagonism which he had taken up against the defendant. He was apparently advised that there was no justification for his attitude towards the defendant; and the compromise decree was only an act of reparation.
26. In Gyana Sambanda Pandarasannadhi v. Kandasami Thambiran I.L.R 10 (1887) M. 375, a compromise regulating the course of succession to the Mutt was recognised as it was in consonance with the usages of the institution. Mr. Sadagopachariar also quoted Nilakandhen Nambudripad v. Padmanabha Devi Varma I.L.R. (1894) M. 1 in support of this position. In the Kamudi case, Sankaralinga Nadan v. Rajeswara Dorai I.L.R. (1908) M. 236, the compromise by the Rajah of Bamnad was distinctly against the usage of the institution and in the teeth of the decree recognising the usage. There are no English cases directly in point. It was held in Attorney-General v. Leanderfield (1743) 9 Mod. 286 that an agreement between the next of kin and the Governor of the charity to share the estate in a particular proportion should be given effect to by the Court.' In Tudor's Charitable Trusts Numerous authorities are cited for the position that questions relating to the interests of a' charity may be compromised (see. p. 378).
27. In all such cases, the matter will be brought to the notice of the court and its sanction will be obtained for the compromise. I do not see why the same principle should not be applied to the present case. It was said that the mere acceptance of a compromise, by the court is not proof of its sanction, and the case of minors was instanced. In the case of infants, there is a statutory prohibition and a direction to observe certain formalities. It is not analogous to this case. Reliance was mainly placed upon the authorities which lay down that, a trustee should not transfer his office to persons in the immediate line of succession. In Madras, although there is a course of decisions sounding that way, Mr. Justice Bashyam Aiyangar in Ramanathan Chetty v. Murugappa Ghetty I.L.R. (1903) M. 192, was not prepared to regard it as settled law'. The Bombay High Court has taken a different view. It is not necessary in this case to express any opinion on this question as I am of opinion that those cases afford us no guidance. The alienation of the Office of Trustee in most of the cases quoted before us was vitiated by considerations personal to the parties concerned. But where the object of the agreement is to recognise the usage of the institution and to accept the validity of an appointment which but for the conduct of Sivagnana would' have in the ordinary course of events given the defendant the right which was secured to him by the decree. I see no reason for holding that the decree based on such an agreement is illegal. I do not therefore that it necessary to examine the cases quoted by Mr. Srinivasa Aiyangar.
28. Mr. Sadagopachariar argued that the compromise was binding on the parties until it was set aside and as Sivagnana died before ; that happened, his rights were unaffected by the suit. It was held in Great North, West Central Railway v. Charlehir (1899) A.C. 114, that a decree based on compromise was of no greater validity than the contract. If the observations in Rajah Kumar a Venkata Perumal Raja Bahadur v. Thatha Ramaswami Chetty I.L.R. (1911) M. 75, are against the view, I am not prepared to follow them. At the same time, it is well-settled that until the decree based on the compromise is recalled, it is binding on the parties to the suit. Lord Esher in The Bellcarm (1885) 10 P.D. 161 says 'I agree with Butt, J., that when at a trial the Court gives judgment by the consent of the parties, it is a binding judgment of the court and cannot be set aside by a subsequent agreement between the solicitors.' I take the reason of the rule to be that although the force of a consent decree is derived from the consensus ad idem of the parties, it having received additional validity by being accepted by the court, it cannot be set aside by the consent of the parties as any other contract could have been, but can only be vacated by the court by a proper proceeding in that behalf. The court of appeal in In re South American and Mexican Banking Co. (1895) 1 Ch. 37 affirmed the principle stated in 10 Probate Division 161. It follows, therefore, that until and unless the compromise decree was set aside Sivagnana was bound by it and the defendant was entitled to the benefit secured to him under it. I agree with the Subordinate Judge in holding that the compromise is binding on Sivagnana.
29. The result of the above conclusions is that at the time that Sivagnana made the will and had Abishekam performed on the plaintiff, the position of the junior Pandarasannadhi was not vacant and consequently he had no power to appoint the plaintiff to it. I have, of course, assumed that the will was made and that the Abishekam was performed. I have given my reasons already for not believing the story in that behalf. The plaintiff is not therefore the legal representative of Sivagnana. The appeal fails and must be dismissed with costs.