1. The appellants filed the suit in the lower Court for themselves and as representatives of the Sirugudi Vellala Community of Tirunelveli District for a declaration that the first defendant Nammalwar is not the duly appointed trustee of the suit math called Sri Dakshi-namoorthi Matam, and for framing a scheme for the selection of the head of the math from among the Sirugudi Vellalas of Tirunelveli District having the necessary qualification in the vacancy that would be caused by the reason of the said declaration and to vest the math and its properties in the person so selected and to call upon the first defendant to render atrue and proper account of the income and expenditure of the math from May, 1957.
2. The suit math was founded by one Vedanayagaswami, who executed a registered will Exhibit A-1 dated 20th April 1920 providing for the management of the suit math. It is clear from the will and particularly from the second schedule of the same Riving a description of the charities to be conducted in the math, that it was founded for carrying out the public and religious charities mentioned therein at the samadhi of the founder Guru-natha Sri Michael Sidhar. The founder Vedanayagaswami nominated one Pichan-diya Pillai alias Paramanandha Sadhu as trustee for the math after his lifetime and provided for an Advisory Committee consisting of nine persons mentioned by him. He provided for hereditary succession according to lineal primogeniture of D. Vedanayagam Pillai and Kandaswami Pillai, mentioned as Nos. 1 and 9 in the Committee appointed by him. The said D. Vedanayagam Pillai is the maternal uncle of the first plaintiff's father. The sixth defendant, as the elder brother's son of first plaintiff, is the person who is entitled to become a member of the committee by hereditary right. But he has become a Christian and he is not entitled to be a member of the Committee. The second plaintiff Ramanathan is the son of Kandaswami Pillai and he is also entitled to become a member of the Advisory Committee by hereditary right.
The other members of the Advisory Committee appointed by the original founder Vedanayagaswami had only a life interest in the management of the suit math as Advisory Committee members. Defendants 2 to 5, who are closely related to the first defendant, are now said to be the members of the Advisory Committee.
Paramanandha Sadhu, who succeeded Vedanayagaswami as trustee of the suit math, in his turn executed the will, Ex. A-2, providing for his successor. He nominated the first defendant's father Muthu Pillai alias Paramanandaswami as the head of the math after him. Muthu Pillai alias Paramanandhaswami in his turn executed the will, Exhibit A-3 dated 20th January, 1956 appointing his own eon, the first defendant herein, as his successor. The first defendant succeeded to management of the suit math on the death of his father in May, 1957 and this suit has been filed in 1961 questioning the validity of the appointment of the first defendant as the trustee under Exhibit A-3, after exchange of notices evidenced by Exhibits A-8 and A-9.
3. The founder Vedanayagaswami has mentioned the qualifications of the persons to be appointed as trustees in his will Exhibit A-1. According to him, the person nominated should have been born in Sirugudi Vellala community and heshould be not less than 35 years of age and should possess good quality, good conduct, sympathy and devotion to Government and he should profess the Hindu Religion. While holding the post of a trustee, it is necessary that he should be a thuravi. It is clearly mentioned in the will that it is not, however, obligatory that the said person should wear kashayam (ochre robe). In Exhibit A-2 Paramanandha Sadhu, the successor of Vedanayagaswami, has added further conditions that the trustee nominated by him should not only remain as thuravi but also wear kashayam, that he should remain in the math and perform the pooja and other services, but should not reside in the math along with his wife or female disciples, or female cooks and that he should not have any family connection or relationship or money transaction.
In Exhibit A-3 the first defendant's father has purported to relax the conditions by stating that as some of the conditions mentioned in the wills of his two predecessors are not suitable in the present age, he did not like to mention them in his will. The founder Vedanayagaswami has provided for the devolution of the trusteeship for the management of the suit math and stated the qualification to be possessed by such trustee and it is not open to his successors to alter the same. In Gurupada v. Manmohan : AIR1936Cal215 , it has been held that a fundamental change in the devolution of the office of Shebait, which is inconsistent with the terms of the original foundation, cannot be valid and that even the founder cannot alter the line of succession unless he has reserved that right to himself. In Sital Das v. Sant Ram : AIR1954SC606 the Supreme Court has stated that succession to Mahantship of Math or religious institution is regulated by custom or usage of the particular institution, except where a rule of succession is laid down by the founder himself who created the endowment.
4. The main question to be considered in this appeal is whether the appointment of the first defendant as trustee by his father is opposed to the terms and conditions laid down by the original founder Vedanayagaswami in his will, Exhibit A-1. Sri K. Parasaran appearing for the appellants urged this appeal only on the ground that the first defendant is not a thuravi as required in Exhibit A-l. According to the plaintiff, the first defendant was only 30 years old at the time when he succeeded his father as trustee. But according to the first defendant he was more than 34 years old and was about 35 years of age as required in Ex. A-l. Having regard to this requirement in Ex. A-l, that the trustee appointed should be about 35 years of age and the fact that the first defendant was more than 34 years old at the time of the suit, the learned Subordinate Judge did not consider that the first defendant was disqualified to be the trustee on the ground of under-age and this finding was not attacked in appeal, though a specific ground had been taken in the grounds of appeal.
5. Thuravi has been translated in the Tamil Lexicon, published under the authority of the University of Madras, Volume IV, Part I at page 2004, as ascetic, recluse, Sannayasi. In the History of Dharmasastra, Volume II, Part II, in Government Oriental Series, Class B, No. 6, Chapter XXVIII is devoted to Sannayasa. At page 946, there is a passage dealing with the question whether Sudras or women could resort to sannayasa. It is pointed out that if such a question is asked, there is likely to be some confusion; and that according to the Bhagvad Gita 'Sannayasa' means the giving up of actions springing from desires. It is observed on the strength of Srikara's Ehasya on Vedantasutra, that the order of Sannayasa, the peculiar rules of which are recommended by Vedic texts, is only for the three varnas, while mere nyasa (abandonment of wordly pleasures and desires) can be resorted to by women, Sudras and mixed castes. In Gopalchandra Sarkar, Sastri's Hindu Law, Eighth Edition at page 111, in dealing with inter-caste marriage, there is a reference to a passage in Mahabharatha as to who ts a Brahmana and whether Sudras can be Brahmanas. It is stated that 'he is ordained to be Brahmana in whom are found truthfulness, charity, forgiveness, uprightness, harmlessness, austerity and compassion' and that if in a Sudra by birth the characteristic of Brahmanas exists and in a twice-born by birth the same does not exist, then the Sudra by birth should not be regarded as a Sudra, nor the Brahmana by birth a Brahmana. But the distinction between the claims of Brahmana and Sudra by birth to become a Sanyasi is well recognised even in the decisions of our Courts.
Thus, in the decision in Dharmapuram Pandara Sannadhi v. Virapandiyam Pillai, ILR(1899) Mad 302, it is pointed out that all the authorities necessarily and clearly imply that a Sudra cannot enter the order of Yathi or Sannyasi and that the devolution of property left by a deceased person of the Sudra caste who has become an ascetic and renounced the world, is regulated by the ordinary law of inheritance, in the absence of any general or special usage to the contrary. In Somasundaram Chettiar v. Vaithilinga Mudaliar, ILR (1917) Mad 846 : AIR 1918 Mad 794 (2)), the above decision is referred to with approval. It appears from page 857 of the reports that Sri T. Rangachariyar for the appellants in that case urged that by immemorial usage in Kaliyuga, Sudras can become sanyasis and that such a right is recognised by custom in South India, But as pointed out by Mukherjee in Hindu Law of Religious and Charitable Trust 1952 Edition at page 326, the rules guiding these institutions of diverse types which have their origin in customs and usages followed by different religious orders vary widely from each other. The decision in Giyana Sambandha Pandara Sannadhi v. Kanda-sami Tambiran, ILR(1887) Mad 375 relates to Saivite Mutts in South India, particularly the Dharmapuram Adhinam. It is clear from page 385 of the reports that 'if an ascetic or a hermit is a Brahman, he is called a Yati or Sannayasi, if a Sudra, he is called a Paradesi, and if the Sudra is attached to an Adhinam, he is called a Tambiran, and if he is at the head of the Adhinam, he is called the Pandara Sannadhi.' The succession to the head of such Saivite and other Mutts is governed by custom or usage. Thus in Ramalingam Pillai v. Vythilingam Pillai, (1893) ILR 16 Mad 490 (PC), it has been laid down by the Judicial Committee of the Privy Council that the only law applicable to the appointment of a Dharma-karta of a mutt or temple is found in custom and practice,
6. In the present case, the succession is governed by the provisions of the will of the founder Vedanayagaswami. It is clear from the decision of the Privy Council in Mahant Ram Parkash Das v. Mahant Anand Das,1916 31 MLJ 1 : AIR 1916 PC 256 that even in cases where the reigning Mahant of a Mutt has the right of selecting his successor, the nomination must fall upon one who is competent to hold the office. It is pointed out by way of illustration in that decision that the person chosen may be disqualified by reason of bodily deformity, or bodily disease such as leprosy, or disease of the mind or of the leading of a life which is immoral or is inconsistent with the religious vows of the brotherhood and that in all such cases, the nomination would be void. It is further stated therein that the contracting of marriage is a ground of disqualification where, by the custom of the mutt, the Mahant must be a religious chela and a celibate.
In Sathappayyar v. Periasami, ILR(1891) Mad 1 , it is stated that the usage of the institution in that case conveys the impression that either an ascetic or a married man is eligible for the office and that in former times there was a conventional notion that the management of a religious charity by an ascetic was more disinterested than that by a married man and therefore likely to prove more beneficial but when the usage of the institution is clear on this point, we are not at liberty to ignore it. It is pointed out that in ordinary parlance, the words paradesi and mutt, no doubt, designate a Sudra ascetic and the institution presided over by him, but they are of themselves inconclusive, since there are mutts in the Madras Presidency of which the representatives are not ascetics. In Hari Das v. Raja Ram, AIR 1935 Lah 545, it has been held that there are married and unmarried Bairagis and that there is no prohibition in the Shastras against the marriage of Bairagi and that the custom of the institution in question was for the mahant to appoint his successor and the fact that the successor is a married man was no bar to his taking over the office of the mahant,
7. It is clear from Exhibit A-1 that the founder VedanayagaswamI did not exclude a married man from becoming a trustee of the suit math. But he only wanted the person to be a thuravi. In fact, it was not obligatory that the person should take to kashayam. It is true in Exhibit A-2 the successor to Vedanayagaswami has added further conditions, namely, that the trustee should not reside in the math along with his wife and that he should not have family connection or relationship or money transactions. In interpreting the qualifications of trustee, one should ignore those additional requirements mentioned in Exhibit A-2. A Sudra cannot be a sannayasi in the strict sense of the term. The very fact that the suit math recognises that a married man can be a thuravi clearly shows that the trustee need not renounce everything in the world. It should be noted that the suit math is not like the well-known saivite religious mutts, such as the Dharmapura Adhinam, Thiruvadu-thurai Adhinam and Tiruppanandal Adhinam, where spiritual instructions are given and the saivite religion is propagated.
The present suit math is only a Sama-dhi, where some charities mentioned in Schedule II to Exhibit A-1 are performed. In fact, it is clear from the evidence adduced by both sides that there is no thuravi in the strict sense of the term in the Sirugudi Vellala community from which a trustee can be appointed. The first defendant has married his sister's daughter as his second wife, as spoken to by P.W. 2 Ramanatha Pillai. The said marriage having taken place, after such marriages have been prohibited by law, it would be invalid and that the position of his wife who is also his niece is no better than that of a concubine. But he took his sister's daughter in marriage as his second wife, as he had no issues by his first wife. Such a marriage was not prohibited by Sastras, or Hindu Law, as administered prior to the prohibition of such marriages by statutes. Having regard to the duties of the trustees, it could not be said that the fact of the first defendant having contracted a second marriage would disentitle him from holding the office of a trustee. In fact, it is not the case of the plaintiffs that the first defendant is not leading a proper life, or is otherwise disqualified from being a trustee of the suit math. In the absence of a clear provision in the terms of the will Exhibit A-1 disentitling a person like the first defendant who has married two wives from being appointed as a trustee, we are unable to hold that the first defendant is not competent to be a trustee of the suit math. The use of the word thuravi, by itself, cannot, having regard to the facts and circumstances of the case, imply that the trustee should be a celibate in order to be a trustee of the suit math. There can be no doubt that the word thuravi has been used in a loose sense in Exhibit A-l and we say so having regard to the nature of the math, the duties attached to the office of trustee and several other circumstances referred to above.
8. We are unable to uphold the finding of the learned Subordinate Judge that the suit is hit by Section 108 of the Hindu Religious and Charitable Endowments Act. The learned Subordinate Judge has himself felt the difficulty and he has observed that he finds it difficult to enter a finding that the prayers in the plaint could not be fitted in one or the other of the provisions in the Act. In fact, Sri V. Thyagarajan could not show how any of the prayers in the suit could properly form the subject-matter of any of the suits contemplated in the Act under the several provisions such as Sections 59, 60 etc. It is, however, unnecessary to discuss in detail whether the suit is hit by Section 108 of the Madras Hindu Religious and Charitable Endowments Act in view of our concurring with the trial Court that the first defendant is not ineligible to be a trustee of the suit math, having regard to the terms and conditions of the will Exhibit A-1.
9. The decree and judgment of the learned Subordinate Judge are, therefore, confirmed and the appeal is dismissed with costs.