1. The question arising for decision in this appeal is whether the trusteeship of the suit choultry founded for feeding wayfarers goes with the ownership of the impartible estate and passes even to a stranger when he becomes the transferee of the estate. The suit choultry is situate at Teni, midway between the headquarters of the Thevaram Zamindari, which is an impartible estate in Madura district, and Madura, the headquarters of the district. The choultry was founded between 1875 and 1877 by Konda Bommu Naicker, the then Zamindar of the Thevaram Zamin. For the upkeep and conduct of the charity Konda Bommu Naicker endowed certain lands, shops and buildings situate in several villages. The village of Teni where the choultry is situate is outside the Thevaram Zamindari. The appellants' case is that the founder intended the choultry to be annexed to the Zamindari itself and that whosoever is the Zamindar for the time being of the Thevaram Zamin is to be the trustee and manager of the choultry. It is also said that by the usage of the institution the Zamindar for the time being is entitled to the trusteeship of the suit choultry.
2. After Konda Bommu Naicker who died in 1877, his eldest son Shanmughavalla became the Zamindar and he was also the trustee of the suit choultry and after him his daughter Bangarammal succeeded to the trusteeship. By a compromise in O.S. No. 31 of 1925, Bangarammal transferred the Zamindari in favour of the first plaintiff who is a stranger belonging to another caste altogether. Respondents 2 to 5 are Konda Bommu Naicker's brother's daughter's sons and they claim as the nearest heirs of the original founder. The first respondent is Shanmugavalla's wife's brother's son and is now in management claiming the right under a will said to have been executed by Shanmugavalla's widow. The first plaintiff in the lower Court and the first appellant here is the present proprietor of the Thevaram Zamindari. The second plaintiff in the lower Court and the second appellant here is described to be the choultry itself represented by the trustee the first appellant. It is enough to refer to the first appellant as the appellant as it is his individual right that is questioned in this litigation. We are not concerned with the title of the respondents and the only question is whether the appellant is entitled to the trusteeship of the choultry in question. The lower Court held that the trusteeship did not pass to the appellant and that an alienee of the estate does not become the trustee of the choultry. The suit was accordingly dismissed and hence this appeal.
3. The appellant's learned advocate urges that the intention of the founder was that whoever is the Zamindar for the time being should also be the trustee of the choultry in question. He also urges that the usage of the institution is also that the trusteeship should be in the Zamindar for the time being. We cannot accept these arguments. There is no deed of trust and we are asked to gather the intention of the founder from the devolution of the trusteeship after the founder's death. The alleged usage is also based on the same considerations. The trust came into existence only in 1875 and there has not been time enough for any usage to grow. There have been only two successions and the mere fact that after the original founder, his eldest son succeeded both to the Zamindari and to the trusteeship of the choultry and that after him his daughter did so is not enough to found a case of usage upon. Reliance is placed by the appellant upon a partition deed executed by Shanmuga-valla and his brother under which the trusteeship was allotted to Shanmugavalla and a provision made that if Shanmugavalla mismanaged the property the Local Fund authorities should take over the management. We are of opinion that this partition deed does not afford any basis for the appellant's claim. Both the sons of the original founder are parties to the document, and they both agreed that the elder should be the trustee. The document does not indicate that even without the consent of the younger brother the elder would have succeeded either by reason of the presumed intention of the settlor or in conformity with any usage of the institution. The provision that in the case of mismanagement, the management should be taken over by the Local Board authorities is really against the appellant's contention. The trusteeship was not considered to be always an annexe of the Zamindari. Similarly when Bangarammal succeeded, she did so by the will of her father Shanmugavalla and the will expressly passes the trusteeship of the choultry in question. By. that time Shanmugavalla's brother had died leaving only a widow and Shanmuga's daughter would succeed as his heir at any rate after his widow's death. The widow obviously did not mind her daughter getting the estate and the trusteeship even during her lifetime. Here again it is under an express devise that Bangarammal got it. No doubt Shanmugavalla was the holder of the Zamindari and so was Bangarammal. But these facts are not enough to enable the Court to presume that the intention of the settlor was that the trusteeship should vest in the Zamindar for the time being or that an usage has sprung up to that effect which could be recognised by a Court of law; much less can we presume that even a stranger who becomes entitled to the Zamindari is to be the trustee of the choultry.
4. It is argued that the choultry is an annexe of the Zamindari itself and that the management passes with the Zamindari. We are not satisfied that there is any basis for the argument that the choultry is an annexe of the Zamindari. Mr. Rajah Ayyar, the learned advocate for the appellant, has referred us to certain documents which describe the choultry as the Zamin choultry. These documents have been analysed at length by the lower Court in paragraphs 31 to 34 of its judgment. We entirely agree with the view taken by the lower Court as regards these documents. The choultry has properties of its own and it is not shown that it is maintained from the general income of the Zamindari. Even if a choultry or a temple is maintained out of the income of the estate, it may give the institution a right to be maintained out of the income of the estate even when the estate passes to a stranger but that by itself would not make the alienee the trustee of the institution.
5. Further, in a case where the trusteeship of a choultry or a religious institution devolves on the person who succeeds to an impartible estate, where the estate itself is transferred to a stranger, the right to the trusteeship will not vest in the transferee of the estate. The character of impartibility is attached to certain estates by family custom. It will hardly be correct to say that impartibility may arise out of a local custom. It is difficult to postulate that all estates in a particular locality are impartible. At any rate, it is not so in this country. Whenever an estate has been alleged to be impartible, evidence has been required to show that by the custom obtaining in the family, the estate is not partible. In some other cases where the estate is held on a military or some service tenure, or under a crown grant, impartibility has been held to attach by reason of the tenure or by the terms of the crown grant. Apart from cases where an estate is impartible by reason of the tenure or grant on which it is held, it is clear that where a stranger becomes by purchase or otherwise the owner of an impartible estate, the estate is no longer impartible in his hands. This view is supported by Section 7 of the Madras Impartible Estates Act (Madras Act II of 1904) which provides that the provisions of the Act do not apply where the estate is transferred to a stranger. Hence when the impartible estate is transferred to a stranger in whose hands the estate will not continue to be impartible, the trusteeship of a religious or charitable institution cannot be held to pass as an annexe to the impartible estate even if we take it that so long as the original family held the Zamindari, the trusteeship vested in the Zamindar for the time being. We agree with the statement of the law on this subject in P.R. Gana-pathi Iyer's Law of Hindu and Muhammadan Religious Endowments, pages 476 and 477:
Where the office is attached to an impartible Zamindari and follows the line of devolution applicable to Zamindari, and the Zamindari ceases to exist as in a case where the person holding the Zamindari sells or alienates it to a person who is not governed by the family custom of impartibility, the office cannot devolve on the purchaser of the Zamindari.
The expression 'and the Zamindari ceases to exist ' obviously means ' the Zamindari ceases to exist as an impartible estate.' The position is beyond argument in a case where the charity is outside the estate and is maintained out of the income derived from properties endowed or purchased for the trust.
6. The appeal fails and is dismissed with costs--one set. Advocate's fee to be divided equally between respondents 1 to 5 (one half) and respondents 7 and 10 (the other half).