1. These are two connected appeals from the judgment of the District Judge of Madura, dismissing Suits Nos. 1 and 2 of 1905 which related to a mutt and a devasthanam respectively on the ground that they were not maintainable in law, because, firstly Section 539, C. P.C., (Act XIV of 1882), does not authorize an action instituted by two lay disciples of a mutt or by two worshippers at a devasthanam with the object of obtaining a declaration that neither of the two defendants-the defendants in both the suits being the same persons-is a lawful trustee entitled to be in charge of the matain and the devasthanam in question, for their removal from the management of the two institutions, for appointment of a new trustee for the administration of the trusts and for other appropriate reliefs; secondly the head of a mutt is not the trustee but holder of a life-estate in the (emoluments) of the mutt and, therefore, Section 539, C. P. C, has no application in his case, and thirdly though there may be a trust in respect of the devasthanam properties, yet as they were held according to usage by the head for the time being of the mutt to which it is affiliated and the head of the mutt cannot be removed, the suit must also necessarily fail with respect to the devasthanam properties in his possession-The plaintffs allege that by long established usage the office of the head of the mutt in question, i. e., the Tiruvannamalai Athinam, which is described as an important Sivite mutt owning extensive properties in the District of Madura, is hereditary, the Panda-rasaunadhi or head of the mutt for the time being having the power to appoint an ordinary disciple to succeed him but that the last lawful holder of the office died without appointing a successor. The defendants, therefore, it is said, have no title to the headship of the mutt, nor necessarily to the trusteeship of the Anjukoil devasthanam, although each of them purports to hold the mutt and the temple properties as the head of the mutt. The plaintiffs also allege waste and mis management on the part of the defendants. The suits were instituted with the sanction duly obtained of the Advocate-General.
2. In disposing of the first question which is common to both the suits it is not necessary to enter upon a discussion of the numerous and in many points conflicting decisions, under Section 539, C. P.C., as the new Code has settled most of the differences on the point which directly concerns us in these appeals.
3. We prefer to follow the ruling in Neti Rama Jogiah v. Venkatacharlu 26 M.k 450 which is in consonance with a dictum of their Lordships of the Privy Council in Bishen Chand Basawat v. Nadir Hossein 15 C.b 329than rather the ruling reported in Srinivasa Ayyengar v. Strinivasa Swami 16 M.b 31. The learned Judges who decided the case seemed to treat the suit against the defendant who was holding the office of the jeer of a mutt and whose removal was sought on the ground that he had not been duly appointed, on the same footing as a suit against a person who is in possession of a trust property adversely to the trust, but with every deference it appears to us that there is a substantial distinction between the two classes of cases. The latter is virtually an action in ejectment while the relief sought in a suit of the former class relates practically to the administration of the trust. The learned Vakil for the respondent also relied in support of his objection on Srinivasa Sigami v. Ramanuja Chariar 22 M.k 117 but there a machinery existed for the election of a proper jeer and the main reason why the Court refused to interfere was that the plaintiffs failed to satisfy it that, any good reason existed for not resorting to the usual machinery. In the present case the allegation in the plaint is and to that alone we must look in deciding an objection raised by way of demurrer that the proper authority to appoint the head for the mutt in question was the last holder of the office and he died without making an appointment.
4. The third objection, which is the other objection applicable to the devasthanam suit, is in our opinion quite groundless. For even supposing that the defendants cannot be removed from the headship of the mutt in a suit instituted under Section 539, C. P. C, as implied in the second objection, and the headship of the mutt, as in the case of both the parties, carries with it the trusteeship of the devasthanam, there is no reason why the properties belonging to the devasthanam, which the defendants admittedly hold in trust, should not be protected, if it be proved that the defendants have been guilty of waste and mis-management as alleged, or why if a proper case is made out the Court should not make the necessary provisions for a proper administration of the trust. A Court of Equity regards the interest of the trust as supreme above all other considerations and if the ordinary machinery laid down for its administration fails it always exercises jurisdiction in order to make whatever arrangements may be required for carrying out the objects of the trust, such as, by the appointment of a proper trustee and the like. As these are the two grounds on which Suit No. 2 of 1905 was held to be not maintainable and we consider them to be without validity, Appeal No. 90 of 1908 must be decreed and the judgment of the District Judge reversed so far as it governs that suit and he will be directed to dispose of the same according to law. Costs of the parties hitherto will follow the result.
5. The first objection being held not to be good the decision of Appeal No. 91 of 1906 now turns upon the determination of the second question : whether under the general Hindu Law the position of the head of a mutt is that of a trustee of its endowments or is it rather that of a life tenant of the income of such endowments? The latter is the view taken in Vidyapurna Thirtha Swami v. Vidyanidhi Thirtha Swami 27 M.k 435 while in Giyana Sambandha Pandara Sannadhi v. Kandasami Tambiran 10 M.k 375 and Sammanatha Pandara v. Sellappa Chetty 2 M.k 175 the head of a mutt is regarded as a trustee of the institution. As the question is one of the importance and we are informed that in several appeals now pending decision, the same question is involved we think it to be desirable to obtain the opinion of the Full Bench, on the point. The Appeal No. 91 will, therefore, stand adjourned pending the receipt of the opinion of the Full Bench. Appeal No. 90 allowed. Appeal No. 91 referred to a Full Bench.