1. In this case the plaintiffs and defendants Nos. 2 to 5 belonged to two houses, Pattanur Edam and Kiloth, and instituted the suit to recover certain lands from the 1st defendant and defendants Nos. 3 to 18.
2. The two houses above mentioned and another house called Nayarkandi were divided branches of a tarwad Pattanur Yelangeri Edam. The Nayarkandi branch became extinct, according to the plaintiff, in 1898. The contesting defendants claimed the lands under a kanom from the Nayarkandi tarwad in 1893 and a sale which followed it in 1898, their case being that the properties belonged exclusively to their vendors. The plaintiffs' case, as stated in the plaint was that the lands claimed in the suit belonged to five temples whose names are given in paragraph No. 3 in the plaint. The temples themselves, it is stated, belonged to the Velangeri Edam tarwad. The plaint alleges that these lands being indivisible, it was agreed, at the partition of the original tarwad into three branches mentioned above, that they should be managed by the senior-most member of all the three branches, and that he should conduct the affairs of the temple out of the income of the said properties. The District Munsif passed a decree in the plaintiffs' favour for a portion of the properties claimed. On appeal the District Judge dismissed the suit. He found that the plaintiffs had not succeeded in proving that the plaint property was set apart for the temples. The learned pleader for the appellants has not been able to raise any legal objection to this finding, and we are bound to accept it. On this finding we are of opinion the second appeal must fail.
3. Mr. Kunjunni Nair contends that, notwithstanding the finding, his clients are entitled to recover the lands as the joint property of all the three branch tarwads, urging that, on the extinction of the Nayarkandi branch, the two other tarwads became entitled to them by survivorship. We are clearly of opinion that the case as set forth in the plaint is that the properties belong to the temples and not to the three tarwads beneficially. It is urged that there is no distinction between temple property and tarwad property as the temples themselves belonged to the tarwad. The temples are claimed as private temples in which the public have no interest, but we cannot accept the contention, even in the case of private temples claimed as belonging to a tarwad, that the properties admittedly set apart for the temples can be regarded as tarwad properties. Assuming that the public have no right in the temples, it cannot be doubted that the properties must continue to be regarded as trust property until at any rate all the beneficiaries concerned, that is all the members of the three families to which the temples are said to belong, put an end to the temples or to the endowment assuming that they could do so. (See the judgment of this Court in S.A. No. 1077 of 1892 and Rupa Jagshet v. Krishnaji Govind I.L.R. (1884) B 169.
4. We are unable to agree with the ruling of the Sudder Court relied on by Mr. Kunjunni Nair in A. No. 64 of. 1861, where the learned judges who decided that case would seem to have held that a karnavan was entitled to dispose of property belonging to a tarwad temple in the same manner as he could deal with property belonging to the tarwad itself. That ruling was not followed by this Court in S.A. No. 1077 of 1892 referred to above. The Subordinate Judge from whose decision S.A. No. 1077 was preferred, had refused to follow the Sudder Court ruling and this Court adopted his view, though the ruling in A.S. No. 64 of 1861 was not expressly dissented from. It may be open to doubt whether, when a temple has been founded by a tar wad for the benefit of the family, the members for the time being can put an end to the trust, so as to affect those who may be subsequently born in the family, but it is unnecessary in this case to express an opinion on that point.
5. It is not alleged in this case that the allotment of the lands to the temples was ever revoked by the members of the three tarwads. We cannot, therefore, accept the argument that the allegation in the plaint that the lands belonged to the temple was tantamount to an assertion that they were the joint property of the three tarwards. And we must refuse to go into the question whether plaintiffs could sustain a claim to the lands as the joint property of the three tarwads and not the property of the devaswoms.
6. We must, therefore, dismiss the second appeal with the costs of the 1st respondent. The appellate court, in its judgment, gave the contending defendants all his costs in the Mnnsif's court. The omission in the appellate decree to include the half of the commissioner's fee paid by him must be rectified.
[See Appu Pathar v. Kurumba Umma reported below Ed.]