1. Plaintiffs are the appellants. Their grandfather Ramachar had three sons. In 1891, he died leaving a will in which he founded a religious trust and appointed his second son Venkatasubbarayar to carry out its object, namely, the building of a temple, the installation in it of certain idols and the regular conduct of worship of the said idols. Venkatasubbarayar died in 1924 having performed the duties of trustee and was succeeded by his three sons defendants 1 to 3 who have continued in office till 1929 when this suit was filed. Plaintiffs are the sons of the youngest son of the founder. They seek to be declared trustees on the ground that the appointment by testator of Venkatasubbarayar was only for his life, that on Venkatasubbarayar's death in 1924 the office became vacant and the trusteeship vested in all the heirs of the founder, namely, themselves, defendants 1 to 3 and defendants 5 and 6 who are sons of Ramachar's eldest son, and who now support the plaintiffs. The lower Court held that the appointment of Venkatasubbarayar was for himself and his heirs. The appeal therefore is that the lower Court is wrong in its interpretation of the will. Other questions have been raised but this is the principal question which we have to decide.
2. The relevant clauses of the will are:
I have set apart the undermentioned lands for charity; for the cost of building Hanumantharayan's temple; for the worship and the daily upkeep of the same. For the purpose of conducting this charity my second son, Venkatasubbarayar has been appointed to the management' and again, 'Whereas, I have appointed.... Venkatasubbarayar my second son as manager to administer the charities out of the dedicated properties if the said charities be not conducted properly the leading persons in the village shall intervene and conduct the said charity properly. The Madhwas (testator was a Madhwa Brahmin) shall take an interest in the affairs of this charity and see that the puja and other duties to the God are performed by Madhwas alone.... My sons Venkatarayar, Venkatasubbarayar, and Venkataramanachar shall have no right whatever in the properties dedicated to the said charities, the properties given as stridhanam to my daughters and the properties set apart for the puja of Lakshminarayanaswami and Hanumantharayaswami.
3. Appellants' case briefly is that according to the law as established by the leading cases of the High Courts in India the appointment of a trustee without indicating how the trust is to devolve after his death confers on him a trusteeship only for life. It will be necessary therefore for us to examine the authority cited in support of this proposition. The learned Subordinate Judge in construing the will observes that if the testator had wished his eldest and youngest sons to participate in the management of the trust after Venkatasubbarayar's death he might well have made a provision to that effect in the will itself. We might add that he might also have made a similar provision in fayourof his existing grandsons the present 5th and 6th defendants - then aged 12 and 7 respectively - since in the natural course; they were likely to survive their uncle. We think these omissions do lend support to the inference that the testator intended the heirs of Venkatasubbarayar to be his successors in the office of trustee. Moreover in the clause in which the testator makes provision for the conduct of the trust in the event of Venkatasubbarayar's misconduct, the omission of the testator's eldest and youngest sons is we think significant. The duty of intervention is cast on the leading men of the village. It may be inferred that if the testator had intended his two other sons to be trustees on Venkatasubbarayar's death he would have thought them fit to supersede Venkatasubbarayar in the event of the latter's misconduct. If however the will as it stands creates a lawful and well-recognised mode of devolution we are not at liberty to draw these inferences. The testator must be held to have intended the legal effect of his words.
4. It may also be surmised that on Venkatasubbarayar's death 1st plaintiff and 5th defendant at least were not very certain of their right to succeed him in the office of trustee. For, 1st plaintiff within six weeks of Venkatasubbarayar's death set up an alleged will Ex. H in which Venkatasubbarayar is made to appoint his nephews as well as his own sons to be trustees after his death. The 5th defendant appears as an attestor of this will. First plaintiff sent it to the Collector for safe custody - a novel method of publishing it - but after that no one has attempted to enforce its terms up to the time of this suit when it is put forward by plaintiffs in support of their case. The lower Court has found it to be a forgery and that decision has not been appealed against. If 1st plaintiff and 5th defendant thought that they had a clear right to share in the trusteeship why did they fabricate this will?
5. It remains to examine the cases which the appellants have cited in support of their case. Raj Krishna Dey v. Bipin Behari Dey I.L.R. (1912) Cal. 251, cited in the lower Court and also before us does not in oar opinion help the appellants. The trust there was founded by the members of a Hindu family at the time of partition. In the partition deed and in a trust deed drawn up twelve years later there were provisions which showed that the family as a body intended to retain control of the trust. Nor was it contended by any party to the suit that after the death of the Shebait who was first appointed the office devolved on his heirs. So far as we can see that case is only relevant to the present discussion because it reiterates a rule laid down in 1899 by the Judicial Committee in Gossami Sri Gridhariji v. Romanlalji Gossami which is:
According to Hindu law, when the worship of a Thakur has been founded, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, course of dealing, or some circumstances to show a different mode of devolution. (See page 20 of the Report.)
6. Another case cited here on appellant's behalf is Sital Das Babaji v. Pratap Chandan Sharma (1909) 11 C.L.J. 2. There the rule is laid down that where the established line of succession fails the management of the trust reverts to the representative of the founder. See page 12 of the report:
The representatives of the founder have, from 1813, exercised control, direct or indirect, over the management of the endowment, and it is difficult to appreciate how it can be seriously contended that they have no right to intervene when it is found that the succession to the office of trustee has wholly failed.
7. According to the first of these cases therefore the trusteeship vests in the founder's heirs when the mode of its devolution has not been laid down by its founder and is not governed by some usage or course of dealing. According to the second case the trusteeship vests in the founder's heirs when the mode of devolution prescribed by the founder fails by reason of the line of succession dying out. Kunjamani Dasi v. Nikunja Behari (1915) 22 C.L.J. 404 is an example of the first rule. The testator left the property to the idol appointing as executors in succession his widow, his youngest son, and lastly an elder son Brojendra. He did not provide for the devolution of the office after Brojendra's death. The Calcutta High Court held that on that event the trusteeship vested in the founder's heirs. But the question in the case now under appeal is whether in appointing his son to the office, though he did not make any express provision for the succession after that son's death, the testator must be, held to have prescribed a line of succession in that son and his heirs.
8. Learned Counsel for the respondent contends that this is the proper interpretation of the will and that his view is fortified by the decisions of the Privy Council. We think he is right. Sethuramaswamiar v. Meruswamiar (1917) 34 M.L.J. 130 : L.R. 45 IndAp 1 : I.L.R. 41 Mad. 296 (P.C.) dealt with the case of a grant for charitable purposes by the then Rajah of Tanjore to his family priest. Plaintiff was one of the natural heirs of the last Guru and he claimed to be entitled as such to participate in the management of the charities. The Judicial Committee held that having regard to the nature of the charity and the manner in which the office of trustee was dealt with by the British Government on the cessation of the Tanjore Raj, the grant devolved on that one of the heirs who was the holder of the priestly office for the time being. It is clear that the Judicial Committee would have decided in the plaintiff's favour, if it had not felt compelled to construe the grant in the sense stated. It sets out first the general proposition in the following words:
With regard to what are called private charities such as endowments for the support of the family idol, the law as laid down by various decisions in India and apparently accepted in one case by the Privy Council Ramanathan Chetty v. Murugappa Chetty : (1903)13MLJ341 is that if there is no contrary provision in original grant the right of management passes to the natural heirs of the original grantee.
9. Then the Committee states briefly its reason for not applying this rule to the case before it:
The devolution of the management to the heirs of the original donee was inconsistent with the purpose of the founder when he created the endowments.
10. It is contended for the appellant that this was a case where the endowment had already descended from father to son several times and was admittedly hereditary. But there is no doubt that the Privy Council were considering the terms of the original grant which was 'to my Royal Priest Sethubhavasami'. We would observe parenthetically that the expression 'private charity' in the passage first quoted above means a charity founded by a private person. Ramanathan Chetty v. Murugappa Chetty : (1903)13MLJ341 , cited by the Privy Council as an example of such an endowment relates to the founding of a public temple as in the case we are now considering. It is reported as Ramanathan Chetty v. Murugappa Chetty : (1903)13MLJ341 .
11. Then there is the case Triparari Pal v. Jagat Tarini Dasi . than which nothing could be more decisive against the appellant's case. As here, the trust was founded by a will; as here the testator provided that his son should be shebait (though not before attaining his majority); and as here, the testator made no provision for the devolution of the office in succession to his son. It was held in the High Court of Calcutta that:
The will nowhere gives the son an absolute right to the shebaitship on attaining majority. We consider that he had only under the will a right to the shebaitship for his life.
12. In the Judicial Committee the judgment is:
Their Lordships are of opinion that the decision of the High Court cannot be supported. There is in their Lordships' view an absolute gift of the shebaitship to the son, Mukunda Murari Pal.
13. The plaintiff in that suit was the son of Mukunda Murari Pal, and he claimed to be entitled on the death of his father, and his claim succeeded.
14. The case of Kunjamani Dasi in the Calcutta High Court was decided after the foregoing decision in the Privy Council; but the learned Judges who decided it did not in terms explain how the facts before them differed from the facts in Tripurari Pal's case. There is obviously a difference. The succession prescribed was to the testator's widow then to his youngest son and lastly to an elder son Brojendra. Nothing was said as to the succession on Brojendra's death. And the learned Judges who decided the case held that on that event the Shebait vested in the heirs of the testator. At the end of their judgment however referring to Tripurari Pal's case, they observed:
Precisely the same result follows if we hold, on the authority of Tripurari Pal v. Jagat Tarini Dasi , that the shebaitship vested absolutely in Brojendra and on his death devolved on his heirs, namely, his four surviving brothers.
15. For it so happened that the heirs of Brojendra were also the heirs of the founder.
16. Learned Counsel for the appellant has also relied on certain observations made by a Bench of this Court in Venkataraya Prabhu v. Vasudeva Prabhu (1928) M.W.N. 127. By a compromise in a partition suit which was embodied in the decree two brothers Upendra and Ramakrishna set apart some properties for religious purposes and agreed that Ramakrishna was to be the trustee. In the event of his misconduct, it was prescribed that the younger brother Upendra should take possession of the endowed property and perform the duties of the trust and moreover that he was at liberty to do this by way of execution of the decree itself. Ramakrishna made default and Upendra proceeded in execution to recover the properties. Before he had completely done so he died. But before he died he executed a trust deed and a will in favour of his son Venkataraya appointing him trustee and empowering him to continue the execution. On an application in execution by Venkataraya the Courts held that he was not entitled to be trustee and not entitled as such to proceed with the execution. In the course of that decision Kumaraswami Sastri and Wallace, JJ., said:
The general rule of law is that the founder of a trust or his heirs have got the right to appoint trustees in case of failure of trustees, or where the deed of trust does not make provision for the appointment of trustees to succeed the incumbents mentioned in the deed.
17. Stress is laid by the learned Counsel for the appellants on the last clause. But the respondents' case is that where the deed confers the trusteeship on the founder's son without further words, it does, by implication, make provision for the appointment of trustees to succeed him. It confers the office on his heirs after him.
18. The strongest case relied on for the appellant is Gopal Lal Sett v. Purna Chandra Basak (1921) 43 M.L.J. 116 : L.R. 49 IndAp 100 : I.L.R. 49 Cal. 459 (P.C.) a decision of the Privy Council. A Hindu testatrix appointed her grandson Udoy Chand to perform the worship of an ancestral idol out of the income of certain Government securities, and the worship of another ancestral idol out of the income of a certain garden, purchased in the idol's name and of two houses which by the will were gifted to Udoy Chand himself. Their Lordships of the Privy Council held that the will was most obscure but agreed with the Calcutta High Court that no heritable shebaitship was established by it. There is no indication in this judgment that the facts were regarded as the same as the facts in Tripurari Pal's case or that the rule laid down in that case was intended to be modified. All we can say is that without knowing more of the details of the will by which the trust was founded and of the reasons which induced the Calcutta High Court to interpret that will in the way it did, we are unable to hold that this case helps the appellants.
19. We do not think it necessary to refer to the other cases which with considerable learning have been expounded by learned Counsel on both sides. On the merits we think this appeal must fail. The appointment of Venkatasubbarayar amounted to a grant of a heritable trusteeship.
20. Before concluding there are some other points of the lower Court's decision which we must briefly notice. Plaintiffs in addition to the main relief, namely, the declaration of their right, prayed that a scheme should be framed for the future management of the trust and that defendants 1 to 3 might be directed to render account of their management. But these latter reliefs cannot be obtained in an ordinary suit since the suit temple is governed by the Madras Hindu Religious Endowments Act. Section 73 of that Act, Sub-section 3 provides that no suit in respect of the administration or management of a religious endowment shall be instituted except as provided by this Act. And under Sub-section (1) it is the Hindu Religious Endowment Board itself or some person having interest and having obtained the Board's consent who is competent to institute a suit to obtain a decree directing accounts and enquiries. As for the framing of a scheme of management that is governed by Sections 62 and 63 of the Act.
21. Nevertheless it is contended by learned Counsel for the appellants that in a private suit for the office of trustee the plaintiff can obtain a decree settling a scheme so long as the scheme involves only the method in which the plaintiff is to enjoy the office along with existing trustees. It is urged that it is the practice in such cases for the Court to institute a system of rotation. We do not admit the existence of any such practice. To prescribe a scheme by which the existing trustees should be deprived of their office if only for a time is not within the competence of a Civil Court in its ordinary jurisdiction. A trustee can be removed only by a suit under Section 73 of the Hindu Religious Endowments Act. Before that Act he could be removed only by a suit brought under the provisions of Section 92 of the Civil Procedure Code. See Ramanathan Chetty v. Murugappa Chetty : (1903)13MLJ341 :
The view that one of several co-trustees is not entitled to ask a Court to partition the duties of the trust between himself and his co-trustees so as to give him the exclusive possession and management for (say) six months in the year putting the other trustees entirely aside...is one to which no exception can be taken.
22. See also Thandavaraya Pillai v. Shanmugham Pillai (1908) 13 M.L.J. 59 : I.L.R. 32 Mad. 167 and the earlier case Sri Raman Lalji v. Sri Gopal Lalji I.L.R. (1897) All. 428 which are direct authorities on the point. The Court however will recognise and enforce a system of rotation which by the consent of co-trustees has been in force for many years. See again Ramanathan Chetty v. Murugappa Chetty : (1903)13MLJ341 and also the recent case Alasinga Bhattar v. Venkatasudarsana Bhattar (1935) 70 M.L.J. 424. But where no system of rotation exists the only course open to a co-trustee who wishes to have one established is to proceed under the provisions of the Hindu Religious Endowments Act in the case of a religious institution and under Section 92 of the Civil Procedure Code in the case of other charitable trusts.
23. Lastly we would observe that one finding of the lower. Court is wrong. It held that the suit was barred by Section 73 of the Hindu Religious Endowments Act as it was a suit for, the appointment of additional trustees. It is not a suit of that nature.
24. This finding is not supported by learned Counsel for the respondent.
25. In the result, the appeal is dismissed with costs of respondents 1 to 4.