1. The trustee of Sri Sahasralingeshwara temple filed the suit out of which this appeal arises for recovery of a sum of Rs. 288-1-6 under the following circumstances. Two brothers Narayana Bhat and Keshava Bhat executed a Karar (Ex. A.) in favour of the plaint institution on the 18th of July, 1899 undertaking to perform certain charities or viniyogams as they are called in the suit temple every year. Some properties of the brothers were charged with the performance of these viniyogams at a cost of Rs. 60 every year. These viniyogams were not performed during the years 1932, 1933, 1934 and 1935 by the defendants and thereupon the temple performed them and seeks to recover the sum of Rs. 288-1-6 and to enforce the charge over the properties mentioned in the plaint schedule. The trial Court granted a decree but the appellate Court reversed it holding that Ex. A., was not valid either as a trust or a contract and that the plaint institution has no right to sue.
2. The plaintiff appeals and the only question that arises for decision is whether the plaintiff is entitled to perform the viniyogams and recover the amount from the plaint properties. Ex. A., is a registered agreement executed by two persons Narayana Bhat and Keshava Bhat in favour of the plaint institution. It recites that it was executed and delivered to the Bhandhara of Uprangady Sri Sahasralingeshwara Devaru in Kerikar village. Bharidara, it is agreed means a trustee. The material portion of it runs as follows:
Our senior paternal uncle Verikapa Bhatta, the son of Hennal Puttanna Bhatta, residing at Ulamogra of Adethala village, Bandadi Magane, has this day conveyed to us through Moktyarname, the immovable property of the beriz of Rs. 2-8-0 and valued at about Rs. 600 out of the warg entered in the name of Hemal Subbayya, bearing Muli No. 12 of the said Hirebandi village and movable properties of the value of about Rs. 400 executed by him and executed Moktyarname. As mentioned therein, we have to maintain him properly in future and in accordance with this direction, we shall, for the welfare of our family, perform Brahmanasantarpane for Brahmins (feeding of Brahmins) at an expense of Rs. 60 on the day following Poornima Makha of every year, in the said temple, on the liability of the property lying within the undermentioned boundaries of the beriz of Rs. 15-8-5, warg of which is entered in the name of Kesa alias Thimmayya, bearing Muli No. 5 of Illantila village, Uprangadi Magane, Uprangadi Sub-District, South Kanara District. Further, we shall also give gangamrita (water) to the persons gathering on the occasion of three makha festivals every year in the said temple. We shall also give dakshina (present) according to (our) mite to the Brahmins who gather at the santarpane (feeding) at not less than one pie for each (Brahmin).
3. The properties mentioned in the schedule attached to this document are clearly charged with the performance of the feeding of Brahmins in the temple and of payment of a small sum as a present to the Brahmins who gather at that feeding ceremony at not less than one pie per Brahmin. The agreement is addressed to and is executed in favour of the plaint institution represented by its trustee. The lower appellate Court is clearly in error in holding that there was no consideration for the undertaking in this agreement to feed the Brahmins in the temple. The Subordinate Judge says:
There is no legal connection established between the transaction of conveyance by the uncle to the nephews and the undertaking in Ex A. There is nothing to show that the uncle conveyed his property on the promise of Narayana Bhat and Keshava Bhat to perform the ceremonies.
4. This is a clear misreading of Ex. A. After referring to the settlement made by the paternal uncle of his properties on the executants, the document says:
As mentioned therein, we have to maintain him properly in future and in accordance with his direction, we shall, for the welfare of our family, perform Brahmanasantarpane for Brahmins (feeding of Brahmins) at an expense of Rs. 60.
5. This clearly means that the undertaking to perform the feeding was part consideration for the settlement by the uncle. That is the plain and obvious inference of the sentence just set out and no further evidence is necessary to show that the uncle conveyed his property on the promise of Narayana Bhat and Keshava Bhat to perform the feeding. There was no need in the plaint to set out anything further than that Ex. A, provides for the performance ,of this feeding by the two brothers. The property mentioned in the schedule attached to Ex. A is not wholly dedicated to the trust but the performance of the feeding in the temple was made a charge on those properties. There may be a partial dedication as pointed out in Ganapathi Aiyar's. Religious Endowments, p. 76.
6. In such a case, the general trustee of the institution is sufficiently interested in the performance of these charities and in fact it is his duty to see that all these festivals and charities are properly performed. It would be a breach of his duty if he did not do so. In Nellaiyappa Pillai v. Thangama Nachiyar I.L.R.(1897) Mad. 406 : 1897 8 M.L.J. 119, Subrahmaniya Ayyar and Benson, JJ., say this on p. 408:
In our opinion the Subordinate Judge has overlooked the circumstances that the plaintiff in this case was the general trustee of the temple and as such held a special position in regard to the protection of its interests. In that character it was not only his right, but his duty to see that the temple funds in the hands of special trustees were duly appropriated.
7. It cannot be said that where the special trustee in possession of the properties charged with the performance of the charities does not perform a particular festival which he is bound to do, the general trustee cannot perform it out of the funds of the temple and recover it from the special trustee and from the properties over which there is the charge. In Vythilinga Pandarasannadhi v. Somasundara Mudaliar I.L.R.(1893) Mad. 199 the general trustees carried out certain repairs for which there was a special endowment in charge of a special trustee. The general trustee was held entitled to sue the special trustee for recovery of the sum spent from the general funds. On p. 202 they say:
There is also no doubt that as dharmakartas, respondents are bound to see that the temple is kept in proper repair by those who are bound to do so according to usage.
8. The decision in Venkatachala Pillai v. The Taluq Board, Saidapet : (1911)21MLJ305 relied on by the lower appellate Court has no application to this case. There the only question was whether the provision in a will that butter-milk, betel and nuts, fans and sugar should be given to people attending a festival in a temple was a religious trust or merely a charitable trust. There was 110 feeding to be done in the temple itself. It was held that the trust was not religious in character. This decision has no application to the present case. Feeding of devotees in the temples is a well-known thing as pointed out by Muttusami Ayyar, J., in Vythilinga Pandarasannadhi v. Somasundara Mudaliar I.L.R.(1893) Mad. 199. The point is when there is such a trust performable in a temple, is the general trustee entitled to perform it if the persons who are primarily to do it do not do so and recover the cost from the properties?
9. On the authority of the decision in Vythilinga Pandarasannadhi v. Somasundara Mudaliar I.L.R.(1893) Mad. 199 I hold that the general trustee can recover the sum in question and I reverse the decree of the lower appellate Court and restore that of the first Court with costs here and in the lower appellate Court.