1. The plaintiff sues for a declaration that he is solely entitled to the management of ' Pichai Kattalai ' in the Amirtagateswaraswami temple at Thirukkadaiyur and to the possession of the lands attached to the said Kattalai ; in the alternative, he claims that he should be given joint possession and management with the defendant. His first claim is based on the plea that as he is the seniormost male among the descendants of the original founder Chidambaram Pillai, he alone is entitled to the sole management and possession of the Kattalai. Incidentally he contends that the female members of the family of Chidambaram Pillai have no right. His second claim is based on the ground that as he and the defendant are only surviving male members of the junior branch of the original founder's family, they should both be declared trustees entitled to joint possession and management of the Kattalai and its emoluments. This claim also involves the contention that female members have no right.
2. Originally there was only one defendant, Parameswara. During the course.of the suit he died, and his widow is the second defendant, and the son-in-law who is alleged to be in sole possession of the lands is the third defendant. The Subordinate Judge, in a judgment, which both sides have attacked as being inconsistent with itself and as being inconclusive as regards the findings, held, that the plaintiff was solely entitled to the management of the Kattalai and to the enjoyment of the lands appertaining thereto. The defendants have appealed.
3. Before dealing with the contentions raised on either side, it is desirable to state some facts.
4. The original founder, Chidambaram Pillai, No. 1 is said to have endowed the properties in the beginning of the 19th century. After some years, 'the Board of Revenue took up the management of the Kattalai ; but in 1857, they restored to two members of the family, Namasivaya and Ambalavanar, representing respectively the senior and the junior branches, the management of the Kattalai and the enjoyment of the lands. Disputes soon arose as regards the rights of the other members to a share in the management. O.S. No. 19 of 1866 was filed by three persons representing both the senior and the junior branches against Namasivaya and Ambalavana and others belonging to both the branches, for the purpose of defining the respective rights of the members of the family. Ex. A. is the judgment in the case and it shows that the rights of the various parties to the suit were adjusted by giving them definite shares. It may be pointed out that the shares fixed do not exactly correspond with what would have been obtained under the Hindu law had the Kattalai been regarded as private property.
5. The next litigation was in 1876 by Ambalavana, Chidam-barm Pillai (No. 2) and others against some of the tentants. A decree was obtained for possession and it is clear that that decree was executed not only by Ambalavana but also by the other plaintiffs to whom shares were allotted in the suit of 1866. It is true that after the execution of the decree against the tenants, muchilikas were taken for a number of years by Ambalavana alone. This is not sufficient evidence (vide Ex. VI Series) to show that Ambalavana had ousted the other members of the family from possession or management. The previous suits and the course of events suggest that as a matter of convenience Ambalavana was permitted to manage the Kattalai without prejudice to the rights of the other members of the family.
6. In 1878, one Muttuswami, son of Kuttala Pillai one of the plaintiffs in the suit of 1866, transferred his share of managment to the Pandara Sannadhi of Dharmapuram (Ex. B). In 1883, Namasivaya's son Kanakasabhai transferred his right to the same Pandara Sannadhi (Ex. B1). on the strength of these two documents the Pandara Sannadhi instituted a suit in 1891 for a share in the management of the Kattalai. Arunachala Pillai, who belonged to the second branch was the first defendant. Somasundaram Pillai, the present plaintiff, was the second, defendant. Parameswara Pillai, the original defendant in this suit was the third defendant. The fourth defendant was the widow of Ambalavana Pillai. It may be mentioned that at this time, Arunachala Pillai was in sole management of the Kattalai under a Will left by Ambalavana in his favour. The allegation of the Pandara Sannadhi was that the defendants were unlawfully excluding him and his transferors from the management of the Kattalai, that an attempt made by his transferors to obtain possession of the lands under Chapter 12 of the Criminal Procedure Code had failed inasmuch as the Magistrate maintained the possession of the defendants and that by virtue of the right possessed by his transferors, he was entitled to a share in the management of the Kattalai and the enjoyment of the properties. Vide Ex. C. Paragraph 6. The plea of Arunachala in this suit was that the senior branch from whose members the Pandara Sannadhi had obtained the transfer had been totally excluded for over the statutory period and that therefore the plaintiff had no subsisting right, which he could enforce. He pleaded that the management should be in the family of the founder and that a stranger was not entitled to acquire any rights in it. He accepted the statement that the Magistrate maintained him and his co-defendants in possession of the property as correct. (Vide Ex. 1l, para. 6). He further stated that he was exclusively managing the Kattalai. The other defendants including the plaintiff and the original defendant in the present suit stated that they adopted the contentions of Arunachala (Ex. C2.) The Suit was ultimately compromised by the Pandara Sannadhi receiving back the consideration paid by him to his two transferors and executing a release in favour of Arunachala of all his rights (Ex. C, 5). Arunachala continued in management till 1902. Muchilikas were executed by tenants to him alone (Ex. VI series). His son Vythialinga succeeded him and died in 1912. He left a Will in favour of Parameswara, the original defendant in this case. This suit was instituted in 1913.
7. We have thus far traced the history of this litigation up to the date of the suit. Now, we shall deal with the contentions put forward on either side. The learned Advocate-General for the appellant contended that Ambalavana was in sole management when he willed away his right of management to Arunachala, that Arunachala became solely entitled to it under the will as well as by adverse possession for over 12 years, that Vythialinga inherited this right and that the defendant who claimed under the will of Vythialinga was therefore entitled to the exclusive right of trusteeship and to the possession of the property. We are unable to agree with this contention. So far as Ambalavana is concerned, it is clear that by joining the other members of the family in instituting the suit against the tenants and in taking possession jointly with them of the property from which the tenants were evicted he never intended to set up any right adversely to the members of the family. His management must be taken to have been on behalf of all the members of the founder's family. It is the commonest thing in this part of India for one of the members of a family who happens to be more intelligent than the others to manage charities like the present one. It stands to reason that such management should be regarded as being held on behalf of all the members and not adversely to them Therefore we must hold that Ambalavana had not become the sole manager and that he had no right to will away that right in favour of Arunachala. In our opinion, Arunachala also took up the management on behalf of the other members of the family, because he was considered to be better fitted than others to conduct the affairs. Arunachala in his own statement in the suit of the Pandara Sannadhi (Ex. C. 1) says that he assisted Ambalavana during his lifetime. It was therefore natural that he should have been selected to continue the management.
8. As regards the contention that Arunachala himself by exclusive management became solely entitled to it, the facts are against it. In 1883,immediately on the death of Ambalavana, the transferors of the Pandara Sannadhi complained to the Magistrate and asked that Arunachala, the present plaintiff and the defendant should be restrained from interfering with their possession. The Magistrate held that Arunachala, the plaintiff and the defendant should be retained in possession. This fact is alleged in the plaint of the Pandara Sannadhi (Ex. C) and is accepted in the written statement of Arunachala (Ex. C.1). As we stated already, the fact that he was solely looking after the affairs of the Kattalai is not, without more evidence of ouster of the others, in view, especially of the fact that these were also maintained in their possession by the order of the Magistrate. We must therefore negative the contention that Arunachala had acquired a prescriptive right against the other members of his family. Vythialinga managed only for ten years and we are not prepared to say that his management was adverse to these others. On his death disputes at once arose. In our opinion, it has not been proved that any of the active trustees acquired by prescription the right to exclude the other members of the family through whom the plaintiff claims.
9. We must now deal with contention of Mr. Ramachandrier for the respondent. He argued that, the plaintiff as the senior-most male member in the family of Chidambaram, was entitled to the sole trusteeship. The first answer to this suggestion by the learned Advocate-General was that there is one Kanaka-sabhai who belongs to the senior branch and who is older than the defendant. If the contention of the respondent that the seniormost male member is entitled to manage to the exclusion of the other members is well-founded, it would have to be considered whether the existence of Kanakasabhai is any bar to such a right, because we find that Kanakasabhai had not only parted with his rights in favour of the Pandara Sannadhi by Ex. B. I, but, after the suit of the Pandara Sannadhi by a document dated the 7th September, 1891, Ex. C. 6 , he and the other members of the senior branch of the family in terms relinquished their rights in favour of Arunachala. But in our opinion, the contention of the learned Vakil for the respondent that the senior-most male is entitled to sole management has not been made out. As pointed out by the Subordinate Judge, during the lifetime of Arunachala and Vythialinga, there were senior members who did not assert their rights to sole management as against the active trustee. The custom or tradition in the family in this behalf has not been established by any cogent evidence. We must overrule this contention.
10. It was next argued by Mr. Ramachandrier that, as the plaintiff is now the only male member in the junior branch he is entitled to the right to the exclusion of the females. He relied upon Purappavanalingam Chetti v. Nallasivan Chetti (1863) 1 M.H.C.R. 415 and on Chennakesavaraya v. Vaidelinga () I.L.R. 1 Mad. 348 for the proposition that the office of a trustee in a public institution is indivisible and that succession to it must be regulated as in the case of impartible estates. However much one may wish that such a rule of law should obtain in regard to the management of trusts, we are of opinion that the course of decisions in this Presidency which has the sanction of the Judicial Committee is opposed to this principle. In Ramanathan Chetty v. Murugappa Chetty 13 Mad. L.J. 341 Sir V. Bhashyam Aiyangar, J., pointed out that the right of trusteeship in a public institution possessed by the members of a family when hereditary descends in the same manner as the right to the enjoyment of ordinary family property. In that case, the founder as the last trustee, had two wives. Both wives had a number of sons. The dispute was as regards the rights of management among the sons. The Madras High Court holding that the senior branch had lost its right owing to adverse possession decided that the arrangement among the members of the junior branch to manage the trust by rotation must be upheld. The matter was taken up to the Privy Council and in the very opening sentence of the judgment delivered by Lord Macnaghten in Ramanathan Chetti v. Muru-gappa Chetti 16 M.L.J. 265 it is pointed out that it was a public trust and that the right of management has devolved upon all the members of the family. This decision of the Judicial Committee has been applied to public trusts in a very large number of cases in this Presidency,and the decisions in Chenna Kesavaraya v. Vaidelinga I.L.R. 1 Mad. 348 and Purappavanalingam Chetty v. Nallasivan Chetty (1868) 1 M.H.C.R. 415 quoted by the learned Vakil have never been regarded as binding authorities. Mr. Ramachandra Aiyar laid stress on certain observations contained in Sethuramaswamier v. Meruswamiar 84 M.L.J. 130 in the course of which Sir Walter Phillimore, who delivered the judgment of the Judicial Committee referred to the decision in Ramanathan Chetty v. Murugappa Chetty 6 M.L.J. 265 as relating to a private trust. These observations which were purely obiter appear to have proceeded on some misconception as to the facts of that case, as it cannot be contended that the trusteeship of a public temple is a private trust. The deci-sion of the Judicial Committee proceeded on the view that such a trust was a public trust, and applying that decision to the present case we must hold that in this case also the trusteeship devolved on the general body of the founder's heirs of whom the plaintiff is one. The learned Vakil for the plaintiff respondent also contended that the 2nd defendant, the widow of the 1st defendant, Parameswara, who is now in possession and management through her son-in-law, the 3rd defendant, is disqualified by reason of her sex. He relied upon the judgments in the suits of 1866, 1871, etc., which speak of the descendants of the founders as being entitled to the management. We have looked into the original and the language is ' Vamsasta' which is not accurately translated as ' descendant.' Even otherwise we fail to see, except when it is established, by cogent evidence that there is custom to that effect, how the widows and daughters of a divided member can be excluded, from the management of charity property. Even in regard to religious offices, this Court has held in a Full Bench decision that the widows of divided members cannot be superceded by the rever-sioners. A fortiori in the case of a secular office like the present, there is absolutely no justification for the contention that they are not entitled to manage. The evidence as to usage has been fully discussed by the Subordinate Judge and we agree with his conclusion that it has not been shown that females are not entitled to manage this Kattalai.
11. The result of the above discussion is that the plaintiff is one of the persons entitled to manage the Kattalai along with the 2nd defendant and any other members of the family who have not lost their right. One of them who has not been made a. party to the suit is the widow of Vythialingam. There may be others about whom the record is silent.
12. The question on these facts is whether the plaintiff is entitled to any rleief, and if so, to what. The learned Advocate-General contended that as the plaintiff had not brought a suit for settling a scheme of management, his suit should be dismissed. We are unable to see the force of this contention. The fact that the persons entitled to the office of the trustee may not be able to work harmoniously together is not a ground for dismissing a suit by one of the heirs of the founder for a declaration of his right to share in the management and for joint possession of the trust properties with the heir who is now in possession and management. If it is found that a scheme of management is necessary in the interests of the institution, such a scheme may be settled either by the heirs themselves or by resort to the Court. In the absence of such a scheme the plaintiff is entitled to the rights of the joint management and possession claimed in the plaint. We must, therefore, in modification of the decree of the Court below, declare that the plaintiff is entitled to manage the trust along with the second defendant who is now in possession. It is unnecessary to decide anything as to the rights of Vythia-lingam's widow or other members of the family to share in the management of the Kattalai.
13. In the circumstances of the case, each party must bear his own costs. No portion of the costs should come out of the charity property.