1. This Revision Petition raises a question of some little difficulty. It arises out of an application, made by the petitioners under Section 84 of the Madras Religious Endowments Act, to have an order passed by the Religious Endowments Board on 8th September, 1930, set aside and to have it declared that the suit temple is an 'excepted' temple whereof the petitioners are the hereditary trustees.
2. The learned District Judge has found that the suit temple was founded by one of the ancestors of the petitioners, that properties were purchased by the petitioners' ancestors and endowed to the temple, that there were also endowments by the Mohiri Zamindar's family but that all the properties were registered in the name of the temple represented by its archaka for the time being. He has also found that there is no evidence to show that the petitioners and their ancestors were acting as trustees of the temple. On these findings, he dismissed the petition.
3. Mr. Jagannadha Das, on behalf of the petitioners before me, contends that the learned District Judge has not addressed himself to what is really the material question for decision in the case, because in finding whether a temple is an excepted temple or not the Court has only to consider whether the right to the trusteeship is hereditary and not whether in fact such right has been exercised by the members of the founders' family. In the litigation which immediately preceded the present proceedings that is in O.S. No. 12 of 1928 on the file of the District Court of Ganjam a claim was put forward by the Bairagi Archaka that he and his predecessors were the hereditary heads of this institution on the footing that it was a Mutt and not a temple. That claim was found against, the Court holding that the institution was a temple and not a Mutt and that the Bairagies were only Archakas and had no hereditary right to the trusteeship. Mr. Jagannadha Das is of course right in his contention that any observations made by the District Judge in that judgment as to the loss of rights by the petitioners' family as the result of non-user do not constitute the matter res judicata.
4. The question still remains, what exactly is the test to be applied for the purposes of the definition in Section 9, CI. 5 of the Religious Endowments Act.
5. A long line of cases out of which it is sufficient to refer to the decision of the Privy Council in Gossami Sri Gridhariji v. Romanlalji Gossami (1889) 16 I.A. : I.L.R. 1889 17 Cal. 3 (P.C.) has established that when a person founds a religious institution, the office of trusteeship thereof is held to be vested in him and his heirs in default of evidence that he has disposed of it otherwise. Mr. Jagannadha Das contends that reading Section 9, CI. 5 of the Religious Endowments Act in the light of this line of authority, it must be held that wherever a religious institution is shown to have been founded by an ancestor of the claimant it must be held to be an institution the trusteeship whereof is hereditary within the meaning of that definition and it is therefore an excepted temple. According to the learned Counsel it is immaterial whether members of the family have up to date been exercising the right of trusteeship or not, because their prima facie right could be lost only by some other line of trustees acquiring the right by grant or prescription and if so, that will in turn bring it within another portion of the definition itself so that in either view the institution will remain an excepted temple, whomsoever the trusteeship might vest in. He further contends that as in O.S. No. 12 of 1928 it has been found that the Bairagies have acquired no hereditary right to the management of the institution, the prima facie hereditary right of the present petitioners' family must be taken to bring the case within Section 9, Clause 5, independently of the question of actual, management by the members of the petitioners' family.
6. I am free to admit that there is considerable force in this argument, but having given the matter my best consideration, I am not sure whether the framers of the definition in Section 9, Clause 5 really had in their mind the kind of presumptive right that the Privy Council speak of in Gossami Sri Gridhariji v. Romanlalji Gossami (1889) 16 I.A. 137 : I.L.R. 1889 17 Cal. 3 (P.C.). The language of the Clause is 'the right of succession to the office of trustee...whereof has been hereditary'. The words 'has been' seem to me to suggest that the right contemplated is one which has continued to be exercised up to date. It is common knowledge that most of the minor temples in villages in this Presidency have at one time or another been founded by private individuals and in theory the presumption laid down in Gossami Sri Gridhariji v. Romanlalji Gossami (1889) 16 I.A. 137 : I.L.R. 1889 17 Cal. 3 (P.C.) would apply to all of them. But if the course of enjoyment for all the time known has been such as to negative the exercise of trusteeship rights by the members of the founders' family, it could hardly have been the policy of the legislature to exclude such institutions from the control given to the Board over non-excepted temples merely on the basis of a presumptive right in the founder's line. No doubt the classification in this Act has to some extent followed and to some extent departed from the classification adopted in the Religious Endowments Act of 1863, but I am inclined to prefer that interpretation of the clause which would take account of the de facto exercise of hereditary right and not of a mere presumptive right not exercised for several generations. The question really is, not whether the theoretical hereditary right of the family could have been lost by non-user until and unless it has been acquired by some other set of trustees by prescription but whether the legislature contemplated a right in actual exercise at the present day or a mere theoretical right.
7. In this view, I am not disposed to interfere with the order of the lower Court, but I must add that there is some point in Mr. Jagannadha Das's statement that the temple is too poor to afford the luxury of a paid trustee. The very fact that the Board has appointed one of the petitioners as an honorary trustee shows that there is nothing to be said against him. The record shows that it was at his instance that the second respondent was appointed paid trustee. It does not appear whether apart from their legal objection to the jurisdiction of the Board or the committee the petitioners ever offered to accept appointment as honorary trustees without any body else being associated with them. I have no doubt that any such offer made by them when an opportunity arises will be duly considered by the Board or the Committee as the case may be. The Revision Petition is dismissed; but as the question is not free from difficulty and I do not find anything blameworthy suggested against the petitioners, I do not propose to make any order as to the costs of this petition.