Seshagiri Ayyar, J.
1. This is a suit by two worshippers of the temple for a declaration that a perpetual lease of temple-income in favour of the defendants is void and not binding on the Devasthanam. The defendants Nos. 1 to 9 represent the members of the Devasthanam Committee who granted the lease on the 9th September 1893. Defendants Nos. 10 to 15 are the representatives of the archakas of the temple who obtained the lease. The trustee of the temple has not been made a party to this litigation. It is undisputed that the temple in question came under the management of the Committee only in 1882. At the time of the lease, Srinivasa Ayyangar, one of the archakas of the temple, was the trustee.
2. A number of defences was raised to the action. It was pleaded that the collections leased out really belonged to the archakas and that the arrangement by which a sum of Rs. 300 a year was secured in perpetuity to the temple was beneficial to the temple. The further contentions were that the suit was barred by limitation and that the plaintiffs were not competent to maintain the suit.
3. The District Munsif dismissed the suit. On appeal the Subordinate Judge reversed the decree. Two appeals, one by some of the archakas and the other by the first plaintiff, have been filed.
4. It may be stated at the outset that the questions argued before us have not been considered at any length by the Courts below, although the pleadings raised the points. Mr. Rangachariar's main contention was that the lease of 1893 was the result of a bona fide settlement of disputed claims, and that consequently it is binding on the trust. There can be no question that until 1893 the archakas were permitted to receive the whole of the income derived from the presents made to the Deity by devotees. The learned vakil argues from this that the usage of the temple is to vest the proprietary right in the offerings in the archakas., Mr. Venkatarama Sastriyar contends in reply that prima facie the presents belong to the Deity and that no usage, however long and ancient, can sanction a permanent appropriation of them by the servants of the temple. Before dealing with the questions of law which these contentions involve, it is necessary to examine the facts placed in evidence in this case.
5. The temple in question is one of great repute among the worshippers. Under Regulation VII of 1816, it was under the management of the Collector of Coimbatore. In September 1825, Mr. Sullivan, the then Collector, directed the Tahsildar to report as to why 'the kanikas (offerings) made to God which were receivable by the Sirkar from a long time were not received during the year in question.' He stated that it is 'the custom that the money relating to kanikas in all Devasthanams are received by the Sirkar' and wanted to know 'how the right of receiving the money in. respect of the kanikas by the archakas came into existence in the said Devasthanam only'--Exhibit II. The Tahsildar reported in November of the same year that from the beginning the kanikas were received by the archakas. Thereupon the Collector directed the Tahsildar to continue the practice. Apparently the Government officials began to interfere with the collections even after this. Exhibit V, in April 1829, shows that one of the archakas complained to the Collector that if the collections were not paid back to him he would find it impossible to perform the puja, as the income from the land assigned to him was meagre. The Collector ordered the collections to be returned to the archaka. This state of affairs was not disturbed for a long time. The last order on the subject is Exhibit IV in April 1889. What led to this is not ascertainable. The order says that the in come from the lands was not sufficient and that the cash collections may be made by the archakas. At this time, the Committee was in charge of the Devasthanam. There must have been a trustee also. What the Revenue Department had to do with the temple at this period, is not apparent. However that may be, there were disputes regarding the right to these offerings in 1898. Exhibits I and I (a) (the lease and its counterpart) both refer to the respective claims put forward. The Committee--I am prepared to concede that they acted at this time honestly--in consideration of being paid an annual subsidy of Rs. 300, assigned in perpetuity the right to the cash offerings.
6. The first question is whether, granting that the Committee had power to act in the matter--I propose to say a few words on this question later on--they were justified in making an arrangement to enure for all time to come. I do not think that the Subordinate Judge construed the documents rightly when he said that the Collector did not assign the entire offerings to the archakas. If the income appertained to the archakas, there can be no question that the Committee acted wisely in securing a fraction of it to the Deity. If it belonged to the Deity, is the alienation valid and binding on the trust? On the documents on which Mr. Rangachariar relied strongly, there is no doubt that the offerings were regarded as prima facie belonging to the Deity. It cannot be otherwise. The intention of the donors is to propitiate God. They seek no obtain temporal and spiritual advantages by making these presents to the Deity. They have not the slightest idea of benefiting the archakas by these presents. The Hindu sastras which encourage pious gifts contemplate the upkeep of the places of worship and the performance of pujas and festivals to the Deity. Of course, it is competent to those who are in management to allocate either wholly or in fixed proportions the offerings as remuneration for the necessary services rendered by the servants of the temple. In my opinion, Exhibits II to V evidence only such an arrangement. The income from the offerings was not very large in those days, and the Collector thought it right that the archakas should be in receipt of it to supplement their remuneration. But this would not justify an unalterable arrangement by which the temple is deprived of the best part of its resources for ever. The arrangement should be subject to periodical revision, regard being had to the paramount interests of the institution.
7. It is not necessary to labour further the point that the archakas can have no proprietary right in the offerings made to the Deity. In all the important temples in Southern India, devotees are called upon to pay a fixed sum for the archana that has to be performed. This includes the wages of the person who performs the archana, the cost of the flowers, the remuneration of the person who recites the archana, etc., and the swarnapushpam offered to the Deity. A practice which distributes a portion of the levy to the persons who bring the flowers, who recite the holy names, and who actually do the puja, will not be illegal. But any arrangement which recognizes the swarnapushpam as the property of the archaka will be obnoxious to religious precepts and purposes. If the swarnapushpam is regarded as the property of the Deity and if a portion of it is utilized to supplement the pay of the servants, there can be no objection to it. But such an arrangement can only be of a temporary character, subject to periodical re-adjustment with reference to the exigencies of the time.
8. Mr. Rangachariar strenuously contended that a permanent allotment of the income of the Deity is not invalid. He instanced the various inams which have been granted to archakas and others, and argued that those endowments were really permanent alienations of temple property. I am unable to see the analogy. Inams have been granted either by the ancient Rajas or by pious donors to particular families to enable them to conduct temple worship. This was done because the property they gave away was their own. They made grants to the temple as well as to those who were entrusted with the duty of conducting the daily aradanas in the temple. They were entitled to mate any distribution of their property. The ingenious suggestion that we must consider that the donor dedicated to the Deity the total extent of the inam, that he constituted himself the trustee of the entire endowment and that front this endowment a permanent alienation in favour of those who conducted the worship was made, has no foundation either historically or in practice.
9. It is now settled law that ordinarily a permanent alienation of trust property is ultra vires of the powers of a trustee: Maharanee Shibessouree Debia v. Mothooranath Acharjo (1869) 13 M.I.A. 270, Mayandi Chettiyar v. Chokhalingam Pillay I.L.R. (1904) Mad. 291 and Narasimha Chari v. Gopala Ayyangar I.L.R. (1905) Mad. 391. The foundation for this rule is that the trustee's primary duty should be to see that the temple income is not parted with to the prejudice of the trust. A permanent conveyance would render it impossible for the institution to gain advantages which increase in the income may bring. Another position is also equally well settled, namely, that the trustee has no larger powers over the trust property than managers of Hindu families have. The principles of the well-known case of Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree (1856) 6 M.I.A. 393 have been applied by the Judicial Committee to temple endowments: Hossein Ali Khan v. Mahanta Bhagaban Das I.L.R. (1907) Calc. 249 and Pramada Nath Ray v. Poorna Chandra Ray I.L.R. (1908) Calc. 691 It follows from these two positions that a trustee has no right to part with temple-income permanently. Benefit to the institution and justifiable necessity are the criteria to be applied in dealing with alienation of temple property.
10. The exact point which we are called upon to decide has not been judicially considered in any Madras case. But in Manohar Ganesh Tambelkar v. Lakhmiram Govindram I.L.R. (1888) Bom. 247, Kalidas Jivram v. Gor Parjaram, Hirji I.L.R. (1891) Bom. 309, Chintaman Bajaji Dev v. Dhondo Ganesh Dev I.L.R. (1891) Bom. 612 and Girijanund Datta Jha v. Sailajanund Datta Jha I.L.R. (1896) Calc. 645, it was held that offerings made by devotees belong to the idol and not to the archaka. Apart from the particular facts of these cases, the principles laid down in them are applicable to the present case. Mr. Rangachariar's appeal to hoary antiquity does not disturb me. If my conclusion is correct that the income belongs to the temple, it would be a breach of trust on the part of those responsible for the management to consent to its permanent alienation. Time cannot convert such violations of law into recognizable customs. The principle of Hindu Law that custom outweighs the written text of law does not apply to illegal customs. Manu in Chapter VIII, Section 41, says: 'A king who knows the revealed law must inquire into the particular laws of classes, the laws or usages of districts, the customs of traders or the rules of certain families, and establish their peculiar laws, if they be not repugnant to the law of God.' The English law is equally explicit on the point; Tudor on Charitable Trusts, page 163. My conclusion on this part of the case is that the income from the offerings belongs to the Deity, that it is not competent to the manager of the temple to permanently assign it away to the appellants and that consequently the arrangement of 1893 is not binding on the temple.
11. The next contention of Mr. Rangachariar may be briefly dealt with. He relied on Venkatachella Reddiar v. The Collector of Trichinopoly I.L.R. (1915) Mad. 1064 for the position that the suit for declaration is barred by limitation. It is not necessary to state whether I agree with the view taken in that case. It is enough to say that that case has no application to the present case. The Committee purported to assign away not any existing property, but what was expected to come into existence de die in diem. The cause of action to question such an alienation accrues every time that the offering is wrongfully received; see Holroyd v. Marshall (1861) 10 H.L.C. 191. The Judicial Committee in Jalandhar Thakur v. Jharula Das I.L.R. (1916) Calc. 244 said: 'on each occasion upon which Jharula Das received and wrongfully appropriated to his own use a share of the income to which the shebait was entitled, Jharula Das committed a fresh actionable wrong in respect of which a suit could be brought against him by the shebait.' Applying this principle the suit is clearly not barred by limitation.
12. I shall now say a word on the right of the Devasthanam Committee to enter into this transaction. I adhere to everything that I said in the Srirangam case regarding the respective rights and duties of trustees and of temple committees, Mr. Rangachariyar has not convinced me that the coarse of decisions in this Presidency which I followed in that case needs reconsideration. The decision in Kaliyanammayyar v. Mustak Shah Saheb I.L.R. (1896) Mad. 895 is not in conflict with my views. What Subrahmanya Ayyar, J., held in that case was, that where a committee does an act which is properly within the province of the trustee, the latter might adopt it. This is no more than saying that a person is not debarred from recognizing as valid an act done on his behalf without authority. He is not bound by it. He can repudiate it if he chooses: But he can take the benefit of it also. It was sought to justify the interference of the Committee on the ground that one of the archakas whose rights were in dispute was a trustee. That is a reason to my mind, to have asked the archakas to establish their claim in a Court of law. The trustee who was bound to protect the trust was making a claim against it in his capacity as archaka; and the claim was conceded by the Committee which had no power to grant or renew leases but only a visitatorial jurisdiction. To my mind, the transaction seems entirely unsustainable. However, as I have held that even if the Committee had power to actively manage trust property and to represent the temple, the permanent lease is ultra vires its powers; it is not necessary to say anything more on the subject.
13. I now come to the question of the plaintiffs' right of, suit. I am aware that the decisions on the subject are not uniform, and may probably require reconsideration. I shall state my views on the subject, as at present advised. The provisions which bear on the question are: (a) Order I, Rule 8 of the Code of Civil Procedure, (b) Section 92 of the same Code and (c) Sections 14 and 18 of Act XX of 1863. In my opinion, these provisions are mutually exclusive. An individual may have a right of suit irrespective of any of these provisions, when his civil right in relation to a trust is interfered with. If a man is denied access to a temple or mosque for purposes of worship, he can resort to a Court to establish his right. If the property of the institution is wasted or alienated, prima facie the collective body of worshippers can sue on behalf of the trust. Order I, Rule 8, is designed to consolidate this right of action and to confer the position of dominus litis on a few who obtain the sanction of the Court to represent others equally interested. Section 92 restricts by its second clause the right to obtain relief in respect of the conditions enumerated in Clause (1) to the persons who obtain the Collector's or the Advocate-General's sanction; if the claim preferred is outside the purview of Clause (1), it cannot be argued that the institution is without a remedy. I think the right to seek the aid of the Court existed independently of the statute and that the restriction imposed by Section 92 should not be interpreted as taking away this' right, except in so far as a special mode of enforcing it after obtaining a particular sanction was imposed on the litigant. Under the earlier Acts now superseded, only some tribunals were invested with the power to grant the reliefs. The Act of 1908 has done away with that distinction. What I have said with the reference to the Code of Civil Procedure applies mutatis mutandis to Act XX of 1863.
14. In the present case, the right to obtain a declaration that the lease is not binding on the temple is not a relief covered by any of the sub-clauses of Clause (1) of Section 92. Nor does the Religious Endowments Act apply. No doubt by impleading the trustee and by slightly changing the nature of the relief claimed, the suit can be made to fall either under the Code or the Temple Act. But is a suitor bound to adopt this expedient on penalty of being denied redress, if he does not do so? If I understand Mr. Rangachariar aright, a suit of this kind ought certainly to claim a scheme: that is the only proper procedure: and if a litigant does not adopt that course, he has no remedy. As at present advised, I do not see my way to adopting this drastic suggestion. I think that before the plaintiffs like the present, are told that they have no locus standi, it should be shown that the relief they claim has been specially reserved for persons who ought to have armed themselves with a sanction under the Code. Until that is done, the Courts which are charged under Section 9 of the Code with, jurisdiction to try all civil suits are not powerless to act.
15. I now proceed to the decided cases which I do not propose to examine in any detail. Dasondhay v. Muhammad Abu Nasar I.L.R. (1911) All. 660 is a decision in point. Even the provisions of Order I, Rule 8 were not complied with, although the inclination of the learned Judges was for holding that a sanction should have been obtained. In the case reported as a foot-note to Kamaraju v. Asanali Shenff I.L.R. (1900) Mad. 100 the learned Judges hold that all but suits for possession can be maintained by two worshippers. Probably this is an extreme case. In Subramania Iyer v. Nagarathna Naicker : (1910)20MLJ151 , the trustees were no doubt defendants, but the suit was by the worshippers. Mr. Bhashyam Ayyangar has collected and placed before us quite an array of cases in which Courts were moved by worshippers to deal with malversations of temple endowments. In this Presidency, the weight of authority is in favour of permitting such a suit. Mohiuddin v. Sayiduddin I.L.R. (1893) Calc. 810 takes the opposite view. According to this decision, the body of worshippers is too vague an entity to be entrusted with rights of this kind. I prefer the view of Mahmood, J., concurred in by the other members of the Full Bench in Jawahra v. Akbar Husain I.L.R. (1885) All. 178: 'It is an undoubted principle of Muhammadan Law that the persons who have the most direct interest in a mosque are the worshippers who are entitled and accustomed to use it.' This observation applies to Hindu devotees also. The Manager and the archakas have far less at stake than the worshippers. Their interest is that of servants or agents. The worshippers have a deeper interest in the integrity and well-being of the institutions. It is no answer to this to say that they ought not to be allowed to disturb rights. Order I, Rule 8, imposes a limitation on the exercise of their powers. It is in this view I take it that the decision as to res judicata in Muhammad Amir v. Sumitra Kuar I.L.R. (1914) All. 424 proceeds. The observation of Ranade, J., in Kazi Hassan v. Sagun Balkrishna I.L.R. (1900) Bom. 170 support this view. The decision in Adamson v. Arumugam I.L.R. (1886) Mad. 463 does not affect the present question. The right of worshippers in a temple is not analogous to the right of persons to use a public pathway. I do not think that Shephard, J., in Srinwasa Chariar v. Raghava Chariar I.L.R. (1800) Mad.28 intended to lay down that if as individuals, persons belonging to a community have not certain rights, they cannot collectively possess them. In that case, the individual right was recognized and it was pointed out that the sanctity of a sanction under Section 30 would not add to the rights. I do not consider it necessary to deal with the other cases quoted at the bar. I think that the action is not liable to be dismissed on the ground of want of capacity in the plaintiffs. I am aware that the decree is wrong in clothing the absent trustee with rights. I am also of opinion that the trustee should have, been made a party to the suit. But that can be done even now.
16. Although I have stated my views fully, I recognize that conflicting views have been held on this question; and it is desirable in a matter relating to procedure to formulate a common rule. 1 have, therefore, no objection to refer to the opinion of a Full Bench the question which my learned brother has framed.