1. The lower Courts were clearly right in holding that the suit mosque fell within the category of institutions to which Section 3 of the Religious Endowments Act (XX of 1863) is applicable. It is certainly a mosque to which the provisions of Madras Regulation VII of 1817 were applicable. Mr. Chandra Reddi, the learned Advocate for the appellants urges that even if it be so there is no proof that the other condition laid down in Section 3 has been satisfied in this case; namely, that the nomination of the trustee, manager or superintendent thereof, at the time of the passing of that Act was vested in, or may be exercised by, the Government or any public officer. He contends that there is no evidence to show that this right was vested in or exercised by Government or the Revenue Board or any other public Officer.
2. He relies on the rulings of this Court in the Tinnevelly Siva Devasthanam Committee v. Sri Ambalavana Pandara Sannadhi Avergal and Anr. (1915) 28 I.C. 833 and Panduranga v. Nagappa I.L.R. (1889) Mad. 366. I have also been referred to a ruling of the Full Bench in C. Thiruvengada Mudaliar v. M. Rajabathar Mudaliar : AIR1941Mad546 which is however not directly on the point now before me, but the learned Chief Justice in that decision observes at page 946,
For the purpose of appreciating the provisions of the Religious Endowments Act, 1863, it will be useful to refer first to the Madras Endowments' and Escheats Regulation, 1817, which governed religious endowments in the Presidency until the passing of the Act of 1863 by the Government of India.
Clause 12 of that Regulation is important. It provides inter alia that in those cases in which the nomination had usually rested with the Government, or with the public officer or in which no private person might be competent and entitled to make sufficient provision for the succession to the trust and management, it will be the duty of the local agents to propose for the approval and confirmation of the Board, a person or persons for the charge of trustees, manager or superintendent. Clause 13 provides that on receipt of the report the Board of Revenue shall be required to appoint the person or persons nominated for their approval, or to make such other provision for the trust, management or superintendence as might seem right and fit. To ascertain whether at the time of the passing of Act XX of 1863 the nomination of trustee, manager or superintendent in an institution was vested in or may be exercised by Government or any public officer the above provisions of Clauses 12 and 13 of Regulation VII of 1817 must be borne in mind. If there is evidence that there is sufficient provision for the succession to and the devolution of the office of trustee either made by the founder or by Court or other competent authority, then undoubtedly the Board of Revenue or the local agents will not have any right in the appointment of trustee, manager or superintendent. But where it cannot be said that there are vested rights in any person to appoint the trustee, the power to appoint is by Clauses 12 and 13 vested in the Board of Revenue on the recommendation of the local agents. Institutions to Which these provisions would have applied before the passing of Act XX of 1863 would automatically come within the scope of Section 3 of that Act. This is what was laid down in the decision Panduranga and Ors. v. Nagappa and Ors. I.L.R. (1889) Mad. 366 cited by the learned advocate for the appellants. At page 369 Muthuswami Aiyar and Parker, JJ., say that:
The true construction of Section 3 is that the power of nomination or confirmation must be lawfully vested in the Government or a public officer or lawfully exercised by them, and it is, therefore, necessary to see whether the actual exercise of such power is referable to a legal origin, either to the exercise of a like power by the former Government or to the terms of the deed of endowment or to the grant of endowment made by the Government or to the power to provide a competent trustee when a religious institution has no competent trustee.
Then again at page 372 the learned Judges on an examination of the evidence held that:
There is not only no public document which contains a recognition that the trusteeship was hereditary in the respondents' family, but the conduct of the respondents' ancestors also negatives such belief in his family.
and finally at page 374, it is pointed out:
That there is not a single public document which contains a recognition of hereditary trusteeship.
Therefore the learned Judges held that the temple in question was of the class mentioned in Section 3 of Act XX of 1863 and was as such subject to the jurisdiction of the temple committee. In this case it is clear that according to the finding of both the Courts, the third defendant is not a hereditary trustee and there appears to be no evidence that the trusteeship of the suit institution has ever been hereditary. It follows therefore that the right to nominate the trustee, manager or superintendent for the institution must be deemed to have vested in the Government or any public officer when the Act XX of 1863 came into force.
3. The decision in the Tinnevelly Siva Devasthanam Committee v. Sri Ambalavana Pandara Sannadhi Avergal (1915) 28 I.C. 833 depended on the finding in that case that persons were appointed to manage the temple only by the Pandara Sannadhi. That was not a case in which it could be said that there was no provision for succession to the office of the trustee or manager. The learned Judges at page 834 referred to the right of Government to appoint trustees when there were not found persons competent to make such appointments. It is obvious that they had the provisions of Clause 12 of Regulation VII of 1817 in their minds. They however found in that case that the Pandara Sannadhi was the person competent to appoint the manager for the temple. Therefore it followed that such power was not vested in the Government. It is not suggested that the right of appointing a trustee for the suit mosque vests in any competent person. The ruling, therefore, in the Tinnevelly Siva Devasthanam Committee v. Sri Ambalavana Pandara Sannadhi Avergal (1915) 28 I.C. 833 cannot apply to this case. The second appeal is, therefore dismissed with costs. Leave to appeal is refused.