1. Plaintiff sues for partition and delivery to him of one-third of the properties annexed to the plaint which are claimed to be the properties of the joint family consisting of himself and of the 1st and 2nd defendants. He also prays for the settlement of a scheme for the management of the charitable and religious endowments mentioned in part III of the 2nd schedule.
2. The defence of the first defendant is that the properties are impartible. His contention is that he and his ancestors were the hereditary gurus of the family of the Maharajahs of Tanjore and that these properties appertain to the office of guru as such. He further contends that his ancestor who was brought to Tanjore as his guru by the then Maharajah was also the head of a mutt and that these properties appertain to that mutt.
3. The Subordinate Judge has found that the parties formed an ordinary Hindu family and has decreed partition. This is an appeal against the decision.
4. Most of the properties specified in parts I and II of schedule II were given by the then Maharajah of Tanjore to one Sri Sethu Banaswami stated to be a disciple of the Meruswami mutt in Manuargudi. He had an only son Sri Ramasethuswami who left an adopted son Sri Sethu Ramaswami who died in 1854. His adopted son, Sri Ramasethuswamy, died in April 1886 leaving three sons, the plaintiff and the first and second defendants and two daughters. From the date of the gift there was no occasion for partition. That gift seems to have been made by the Maharajah to Sethubanasami, as the latter was accepted by the Raja as his guru. Till the extinction of the Raj the ancestors of the first defendant continued to be the gurus and after the resumption of the Raj by the British Government, the first defendant's father, and after him the first defendant, continued to be recognized as the gurus of the Raja family. It is the case of the first defendant-appellant that the gift was made to his ancestor on account of his being the Rajah's guru and those properties together with the rest, which form an accretion to that estate are attached to that office of Rajah guru, cannot be separated thereupon and are, therefore, impartible. Sethubanasami, it is said, also established a,mutt, and it is contended these properties appertain to that mutt. Mutts are usually associations of Sanyasis, or celibates, devoted to divine worship, who give upedesam, or instruction to deserving candidates. There are also mutants of which the members are allowed to marry. The house in which they live is also called mutt. The office of the Raja guru and the headship of the mutt are attained at the same time. The first defendant's predecessors were all married men when they became Raja gurus. His father is not alleged to have become a Sanyasi. His grandfather and great-grandfather became sanyasis in their last moments. The disciples do not live with the first defendant. There is no doubt the residence of the first defendant is generally called a mutt. It is, however, also called 'asramam' by some and house by others. In support of his contention that there is an office of guru of the Tanjore Maharaja's family the appellant relies upon the ceremonies which were performed at the time when, on the death of one guru, the eldest son succeeded to the office. Evidence has been given in this case of the ceremonies that were performed at the time of the first defendant's installation. It appears that a few days before his father's death in the presence of the heads of certain other mutt's, the first defendant was taught Ramamantram by his father and a few days after his death he was installed as the head of the mutt. Various persons were invited to attend the said ceremony. The first defendant was made to wear a dress made of Kashaya cloth which the head of the the mutt should wear. He was made to sit on what is called an adhistana palaki' which consists of two wooden planks, one to sit on and the other to lean against. The head of Meruswami mutt who is said to be the guru hereditary of the first defendant's mutt placed the first defendant on that seat. Then his disciples made obeisance to him and he gave upadesam to one or two of the disciples. The representative of the Maharaja's family then placed him on what is called the 'gadi' which is a raised seat with a mattress on it. He had the dhandam (stick) given him. After that he started on a procession from his house, went to the Hanuman temple and as far as the Rajah's palace and after receiving alms from the palace he came back. It is said that no other person is entitled to sit on the gadi and the right to sit on the gadi is supposed to have been conferred upon the first defendant and his predecessors as they were the gurus of the Royal family of Tanjore.
5. It is also alleged and proved that a flag is raised on the new year's day on the mutt and that the anniversaries of all the predecessors of the first defendant are also performed. The sandels used by the predecessors of the first defendant are worshipped on the respective anniversary days.
6. The first defendant and his predecessors, in addition to their ordinary names, have also got spiritual names, the first defendant being, called Chitgurana Brahman, his father was called Sachit Sakhananda Brahman, his grandfather Ananda Brahman, and his grandfather's father Vimola Brahman, and his father, the first guru, Taraka Brahman.
7. The first defendant's predecessors, except his father, who were gurus had also sannadhis. These facts are, no doubt, clearly proved and they show, undoubtedly, that the family is one of great importance in that locality. They have been called Rajah gurus, no doubt, from their having been the gurus of the Maharajas of Tanjore. It is also clear from the evidence that the first defendant and his predecessors were also called Madathipathies.
8. The question for our consideration is, however, whether there are properties attached to this office or belonging to the mutt as such and for that reason whether they are impartible.
9. In order to decide this question we have to consider the documentary evidence adduced. Exhibits--C series are apparently sanads by which the Maharajahs of Tanjore granted the properties in part II of the second schedule as well as the properties shown in part III of the said schedule, which are admittedly devoted to charitable purposes, to the predecessors-in-title of the first defendant. The earliest of them Exhibit C--3 is of 1739, and the latest of them is about 1760. Exhibit C--3 purports to be a grant made by the Maharajah of Tanjore to Rajah Sri Setu Goevari Baba. It is not stated to have been given to him for the maintenance of the office nor was it given to him as the head of the mutt. In fact he is not referred to in these documents as the Rajah's guru or even as the head of the mutt. His spiritual name also is not given. The sanad itself is in the form of an order issued to his officials by the Maharajah reciting that these grants have been made to Sri Sethu Babaswami with the exception of Exhibit C--3 where he is styled Goswami. There is also a direction in the sanad which is translated thus: 'Let it be conducted from sons to grandsons in succession. Let not the objection of a renewed document itself be taken every year.' The appellant's pleader relies upon these words to show that this sanad cannot be treated as evidence of an absolute personal gift. Since the obligation is laid upon the revenue officials to see that the injunctions of the Maharajah are carried out and it could, therefore, only refer to the performance of the duties by Sethu Babaswami of his office or to the head of the mutt. We are unable to accept this construction in the absence of anything in the body of the document itself to show that it appertained to the office, or the mutt. It may probably be intended to show that any further sanad was unnecessary every year or in case of succession on the grantees death.
10. In the case of the properties which were granted for charitable and religious performance the purpose is recited in the sanad itself (Exhibit C--2) and there is a specific direction let the charity be conducted perpetually.' On a comparison of these two recitals it appears to us to be clear that these were only directions to the officials by the Maharaja to see that in the case of the charities they were properly performed and in the case of the other properties the descendants of the grantee enjoyed them. After these 'sanads' by the Tanjore Rajah, the only other sanad that we have is Exhibit--II which purports to be a grant of a village by the then Governor of the Madras Presidency in exchange for some saltpan which the Government seems to have taken up for public purposes. This was in 1806. In that, the grantee is described as the domestic priest to the Mahrajah of Tanjore.
11. Of course, the property newly granted possesses the same incidents as the one resumed. In the absence of any recital in Exhibit--II itself to show that these properties were either attached to the office or they were granted to the Madathipathy we must assume that they were held on the same tenure as the properties of the grantee under the (C) series were held.
12. The Tanjore Raj was resumed by the British Government about 1855. The grandfather of the first defendant died in the year 1854, and in 1856 his widow presented a petition to the Board of Revenue in which after referring to her husband's death and his adoption, before his death, of the first defendant's father, she stated that his installation ceremony including procession was not performed either by her husband or the Maharaja 'to qualify him for my husband's adhinam and the Maharaja's priesthood,' and she stated that until the abishekam is performed he is ineligible for the priesthood. And she also stated that in collusion with the subordinate revenue officials, the first defendant's father, without her own consent and without the permission of the Rajah of Tanjore had performed the abishekam and the procession and taken possession of the properties. She alleged that till then the property was in her possession. But the Board of Revenue referred her to the Officiating Resident. There are statements made by the widow about her husbands's athenam and the necessity of an installation which support the first defendant. But her claim to hold the properties is against him. The properties, however, seem to have been placed under attachment, a report called for, and the matter in dispute appears to have been finally disposed of by an order which is Exhibit--Z in the case. That order was mainly based upon a report by the then Commissioner of Tanjore. The Commissioner referred to the death of the Swami in 1854. He also said that the adoption was perfectly legal and conferred on the adoptee, the first defendant's father, all the rights of the deceased Swamy. With reference to the properties which were called Sawmy Inams, he was of opinion that the inams would necessarily fall into the hands of the adopted son. He further pointed out that it was the practice of the Tanjore Rajahs themselves to appoint as managers of the estates persons for whom the Rajahs entertained feelings of regard, and that in the case of this family the agent of the Rajah's estates had, for some time after 1826, been also looking after the affairs of the inams but that the inam proceeds never reached the servants of the Rajah as such and that the revenue derived from the inams as well as the inams them selves were in no wise interfered with by the Rajah and the Swamy was quite free to hoard or dissipate their produce as to him seemed best. No accounts were rendered to the Rajah himself or to any one about his durbar or person.
13. If the Rajah was interested in those properties, it is scarcely likely that the Rajah's officials would have refrained from any such interference, more especially when we take into consideration the fact that the native Rajahs in ancient days actively interfered in the management of religious institutions. Then, in finally passing orders, the Government observed that the lands could, in no way, be treated as service lands or endowments attached to the priestly office conferred for the performance of duty but that they were simple personal grants unconditionally bestowed from favour and affections, and the properties were accordingly made over to the first defendant's father. Those assigned for the maintenance of Chattrams charities were charged with the support of the institutions for which they were granted. This is, undoubtedly, strong evidence against the first defendant's contention. In the subsequent enquiry by the Inam Commissioner, that officer seems to have acted on the same view. Exhibit--L series are extract from inam Registers and Exhibits D--series are the inam title deeds. The title deeds of the land which were granted for charitable purposes, those in part III of the plaint schedule, were granted to the first defendant's father, as the manager for the time being, and his successors so long as the charity and the religious institutions are properly maintained. The lands which were treated by the Government as personal inams were confirmed to the grantee and his heirs as personal inams. If these lands were attached to the office, it was probably open to the Government to have them resumed, If they were properties belonging to the mutt, they would certainly have been so treated. The conduct of the first defendant's father after obtaining possession of the properties also is only consistent with the same view as was adopted by the Government and the Inam Commissioner. In 1867 he sold certain properties for a sum of Rs. 5,000. In 1875 he made a gift of certain properties to his foster daughter and in 1877 he sold certain other items of property for Rs. 14,000. In 1878 he mortgaged certain other properties for a large sum of Rs. 60,000. In all these, the properties were treated by him as his own: and a security bond (Exhibit--A 3) executed by him contemplates the possibility of a suit for partition. But there is no suggestion anywhere of the properties appertaining to either the office or to the mutt. When he appointed an agent in 1878 he specified certain properties as Chattram properties and the other properties he treated as his own. The first defendant's father died in the year 1886, when he (the first defendant) was a minor. The Court of Wards seems to have taken possession of the property and managed it till 1889. They managed the property not only on behalf of the first defendant but on behalf of the first defendant and his brothers (see Exhibits--T.T., and 02) and they never attempted to dispute the validity of any of the alienations made by the first defendant's father on the ground that he had only a life-interest in the property, and that they appertained to the office of guru or that they belonged to the mutt. The first defendant seems to have succeeded to the management in 1890. He also recognised his father's alienations and undertook (see Exhibit--A 9) to discharge the balance of what remained due of the debt of Rs. 60,000 under Exhibit--A 4. On that occasion, Exhibit--A 9, he treated the property as family property, neither the office nor the mutt being referred to. Suits were brought not against the first defendant solely but against the first defendant and his brothers with reference to those properties by third parties and the written statement filed by the first defendant and his brothers and in the razi that followed, (see Exhibit-O and O 3), the properties were treated as joint family properties and then a decree for specific performance was passed against the first defendant and also against his brothers, not against him alone (See Exhibit--O 4). Similarly he filed suits with his brothers as co-plaintiffs. On one occasion he seems to have proceeded on the ground that he alone was entitled to sue and that it was unnecessary to make others parties to the suit as he was in exclusive possession of the estate on that occasion. The Sub-Collector pointed out that he originally sued as the managing member of an undivided family and refused his prayer.
14. After the estate was delivered to the first defendant by the Court of Wards in 1890, pattahs were granted by him in the capacity of the manager of an undivided family (Exhibit--E).
15. Mortgages were taken in the name not only of the first defendant but also of his brothers and the discharge was also signed by them all. All this evidence can lead only to one conclusion and no document has been referred to before the date of this plaint in which the first defendant ever asserted his exclusive title as against the other member of the family.
16. Assuming that the defendants' predecessors were holders of an office or heads of a mutt, they were also competent to acquire property for the benefit of themselves and descendants, including the female members of the family, and there is no presumption that properties acquired by them were acquired for the office or mutt and not for their own use and benefit. Other members of the family also may have acquired properties. The properties referred to in Exhibit--L 4 included in this suit are alleged to have been acquired by a lady who is a member of this family. It would require strong evidence to show that these properties also were devoted to the office or mutt. There is nothing in the account books to show that these were treated as trust property.
17. For these reasons the appellants' contention must be disallowed.
18. It was further contended that the management of the family properties devoted to charitable or religious uses descended according to the rule of primogeniture and that the plaintiff as a junior member is not entitled on partition to any share therein. We are unable to accept this contention. It is now well-settled that the right of management ordinarily descend to the natural heirs of the donee (Mayne 439) and there is nothing to take the present case out of the rule. The authorities are collected by Bashyam Iyengar, J. in Ramanathan Chetty v. Murugappa Chetty 27 M. 192.
19. The way in which the right of management is enjoyed is stated by the learned Judge as follows:
20. Except in the few cases in which the hereditary office may be descendible only to a single heir, the usage and custom generally is that along with other properties the office' (of manager) 'is divided also in the sense that it is agreed to be held and the duties thereof discharged in rotation by each member or branch of the family, the duration of their turns being proportionate to their shares in the family property. Even in cases in which recourse is had to a suit for the partition of the family property, the Courts give effect to the usage and custom referred to by providing for the management of religious and charitable institutions by different members or branches of the family in rotation on the above principles.' There can be no doubt that these statements are correct. The case of Nubkissen Mitter v. Harrisenden Mitter 2 MD 146 appears to show that the usage and custom were well-established as far back as the year 1818, and it is now too late to question them. It will be observed that the enjoyment is stated to be divided between the different members or branches of the divided family, and this is in accordance with the recent decision of this Court in Thandavaroya Pillai v. Shunmugam Pillai 19 M.L.J. 59 that the managing member of an undivided family has the right to manage the family charities and that the other members of the family have no right to participate in the management so long as they continue Undivided. We, therefore, dismiss the appeal with costs.