Alfred Henry Ltonel Leach, C.J.
1. The appellants were the plaintiffs in the Court below. They claim that the first appellant is the Board, hereditary trustee of the Sri Radhakanta Mahaprabho temple of Bhavanipur. By an order dated 16th October, 1928, the Board of Commissioners for Hindu Religious Endowments framed a scheme for the management of this temple under the provisions of Section 57 of the Madras Hindu Religious Endowments Act, 1927. In spite of contentions by the appellants to the contrary the Board refused to recognise the temple as being an excepted temple within the meaning of Section 9(5) of the Act and rejected the claim set up by the appellants that their family possessed the hereditary right of appointing a member as trustee of the temple. On this basis the Board decided that there should be a council of three trustees and placed the management of the temple in the hands of this council. No member of the appellants' family was, however, appointed to this council of trustees. The appellants were not satisfied with the Board's decision and instituted the suit out of which this appeal arises, as they had the right to do under Section 57(3) of the Act. The learned District Judge agreed with the findings of the Board of Commissioners and adopted the Board's scheme. He held that the hereditary right claimed had not been established; that the temple was not an excepted temple within the meaning of Section 9(5) and, therefore, a scheme should be framed under Section 57; that the lands which the appellants claimed to be theirs were in fact temple lands; and that the appellants had been guilty of mismanagement of the temple while carrying out the duties of trustees. All these findings have been challenged before us.
2. It will be convenient to take the question relating to the lands first. It is quite clear in our opinion that these lands were not granted to the appellants' family, but have throughout been temple lands. There are two parcels of lands, one situate in the village of Bodogumala, and the other in the village of Bhavanipur, where the temple is situate. The Bodogumala lands were granted to the temple some time prior to the inam settlement of 1862. The register of inams shows that the original grantee of the lands was the deity of this temple and the title deed which was granted by the Inam Commissioner on the 3rd December, 1862, was granted to the great-grand-father of the appellants as the manager for the time being of this temple. Paragraph 2 of the grant reads as follows:
This inam is confirmed to you and your successors tax free to be held without interference so long as the conditions of the grant are duly fulfilled.
3. It will be observed that the grant was to the manager and to his successors and not to the great-grandfather of the appellants and his heirs. The register shows that the grant was given to the temple to defray the costs of daily pujas therein. In column 8 which is intended to contain the requisite information in the case of grants made for service, appear the words, ' for the daily offerings of the deity service performed '. It is on the strength of these words that the appellants contend that the grant was to their ancestors personally, subject to their defraying the cost of daily pujas in the temple. But this construction cannot be accepted in view of the fact that the register specifically states that the name of the original grantee is the deity of the temple, and in face of the wording of the inam grant we have no doubt that the appellants and their forefathers have regarded the Bodogumala village lands as their own and have so dealt with it. The fact that they have done so does not alter the fact that it was a grant to the temple and not to them. The title to the Bhavanipur lands is based on a patta granted in 1880 to the paternal uncle of the first appellant. It is not necessary to discuss whether the fact that this grant was in the paternal uncle's name makes any difference because it is admitted by the learned advocate for the appellant that the Bhavanipur lands stand in the same position as the Bodogumala lands and if the Bodogumala lands are temple lands and not family lands the Bhavanipur lands must also be regarded as temple lands. For these reasons we agree with the finding of the learned trial Judge that the appellants' family does not possess arty right of ownership.
4. With regard to the question whether the first appellant is the hereditary trustee of the temple we do not accept the finding of the learned trial Judge. It appears to us on the evidence read in the light of the authorities that the only conclusion open to the Court is the appellants' family does possess right of appointing the trustee of the temple, which means that it is an excepted temple. There is uncontradicted evidence that the management of this temple has been in the hands of the appellants' family for four generations. The Madana trustee in 1862, that is, at the time of the inam settlement, was their great grandfather and the office has been held by their H.R.E. paternal grandfather and by their father in succession. It Madras, has not been suggested that any one outside the appellants' family has ever partaken in the management of the temple. That this justifies the conclusion that the first appellant is the hereditary trustee is to be gathered from the decisions in Ganapati v. Sitharama I.L.R (1887)10 Mad. 292 and Rama Das v. Hanumantha Row : (1911)21MLJ952 . The case of Ganapati v. Sitharama I.L.R(1887) 10 Mad. 292 dealt with a claim to the office of karnam which had been held by the same family for three generations. The case of Rama Das v. Hanumantha Row (1865) 10 M.I.A. 183 related to temple lands, and a question was raised whether the trusteeship was hereditary in the family of the plaintiff. The members of the family had held the office of trustee continuously for over a hundred years and there was no evidence that it was ever held by any other family. White, C.J. and Phillips, J., considered that this was sufficient to prove the hereditary right which had been set up. In the case of Baboo Gopal hall Thakoor v. Teluck Chunder Rai (1865) 10 M.I.A. 183 their Lordships of the Privy Council held that the absence in the deed of words importing the hereditary character of the tenure was supplied by evidence of long and uninterrupted enjoyment and by the descent of the tenure from father to the son, and that from this hereditary character could be legally presumed. The same opinion was expressed by the Judicial Committee in Rajah Suttosurrun Ghosal v. Moheshchunder Mitte (1868) 12 M.I.A. 263. We have in the case before us proof that the office has been held by the head of the appellants' family for four successive generations and that it is at present held by the first appellant as the son of his father. Further there is no suggestion that the trusteeship has ever been held outside the appellants' family. For these reasons we consider that the learned trial Judge was wrong in refusing to regard this as an excepted temple.
5. It is said, however, that the trial Court had the right to deprive the first appellant of his trusteeship and vest the management of the temple in a board of trustees because the first appellant and his brothers had been guilty of breach of trust. The alleged breaches of trust are: (i) the failure to keep accounts and (it) the mortgaging of the temple lands. It may be observed that there is no suggestion that the appellants or their forbears have improperly spent the income of these lands, and when the complaint was made against them that accounts had not been kept they took steps immediately to rectify this. In addition they have since discharged all the encumbrances on the temple properties. In these circumstances we are unable to concur in the opinion that there has been such mismanagement on the part of the appellants that the Court is justified in taking away the right of management which the family possesses.
6. This means that the scheme has been framed on a wrong basis. The learned Advocate for the appellant does not object to a scheme being framed for the management of the templef provided that the first appellant is allowed to continue to be the trustee and the hereditary right is not interfered with. We have held that the first appellant is entitled to be the trustee and that the family does possess the hereditary right of appointment. The scheme should provide for this. In view of the fact that the learned District Judge has placed the management of the temple in a board of trustees it will be necessary for the scheme to be re-settled. The case will therefore be sent back to the District Judge for the re-settlement of the scheme in the light of this judgment.
7. We direct each party to bear his own costs throughout.