1. Sivaji, the last Rajah of Tanjore, died in 1855 leaving 16 Ranees, two legitimate daughters, a mother, 40 sword wives and 17 children by these sword wives, six of them being males. On the death of Sivaji, the Government took possession of all his properties. The estate was restored to the senior surviving Ranee on the 21st August, 1862. On the 19th of March, 1863, the Government made over the Devasthanams to the senior widow in proceedings exhibited as Ex. 1 in these words:
It is desirable that the connection of Government with the pagodas should cease, and they will accordingly be made over to Her Highness Kamak-shi Bai Saheba.
2. On the death of Kamakshi Bai Saheba, the Government again took possession of the Devasthanams and put them in charge of the Devasthanam Committee of the Tanjore District. Upon this, Umamba Bai Saheba, who was then the senior surviving widow, brought a suit which ended in her favour. The judgment of the High Court in appeal Is reported in Kaliaitasundaram Aiyar v. Umamba Bayi Saheb 7 M L J 324. Justice Shephard, who wrote the leading judgment, came to the conclusion that it was the intention of Government to grant a widow's estate, i. e., to put Kamakshi Bai Saheba in the possession which she would have enjoyed had there been no confiscation on the death of her husband, the Rajah. The last surviving widow of the late Rajah died on 3rd May, 1912. After this, the Receiver of the estate in 1912 filed an interpleader suit to decide who was entitled to take the estate. That suit was numbered O.S. No. 26 of 1912 in the Court of the Subordinate Judge of Tanjore, and the judgments in appeal of Kumaraswami Sastri, J. and myself have been reported in Maharajah of Kolhapur v. Simdaram Aiyar I.L.R. (1934) M 1 . In 19l3 the Mangala Vilas people who represented the descendants of the Rajah by sword wives, filed a suit, O.S. No. 43 of 1913, against the two sons of Rajaram Ingle alias Sarfoji Rajah, who was adopted on the 1st of July 1863 by Kamakshi Bai Saheba as the adopted son of her deceased husband. O.S. No. 43 of 1913 was dismissed, the Subordinate Judge observing that the Devasthanams Were handed back to the family represented by Kamakshi Bai Saheba as the head of it. He said--
The grant is to a single individual or sole trustee and there can be no claim for participation. The same will therefore pass to the head of the family for the time being. The senior Ranee acted as such in succession and on the last Ranee's death the senior representative of the family is the 1st defendant. He is therefor entitled to be the sole trustee.
3. That case came to be heard before Kumaraswami Sastri, J. and myself on appeal and our decision appears in Ayiswarya-nandaji Sakeb v. Sivaji Raja Saheb 49 ML J 568. The appeal was dismissed and the judgment of the Lower Court confirmed. In so doing, I observed that if it were necessary for the 1st defendant to prove that sole trusteeship was an incident of this hereditary trust, I should be prepared to find it proved. 'Kumaraswami Sastri, J. found it difficult to accept the argument for the 2nd defendant that the management should be confined to the 1st and 2nd defendants by turns to the exclusion of the illegitimate sons. He observed.
Either the office is impartible and descends on the eldest member of the senior line, or it should be treated as partible and turns given to all those who are entitled to share in the family properties. There as no principle on which the office could be confined to the first and second, defendants to the exclusion of the Mangala Vilas branch.
4. After the Subordinate Judge had decided O.S. No. 43 of 1913, on 1st July, 1918, and found that the grant was to a sole trustee and that the 1st defendant was the senior representative of the family and thus entitled to be sole trustee, the younger son, who was the 2nd defendant in that suit, instituted the present suit for a declaration that the two brothers, sons of the adopted son, should be declared to be jointly entitled to the management of the Devasthanams and the properties belonging thereto under the will of Ranee Jijamba Bai Saheba.
5. The plaintiff in the present suit put in a memorandum of objections to the appeal in O.S. No. 43 of 1919 in which he took the point that the Lower Court was wrong in holding that the 1st defendant was the sole trustee of the Devasthanams and in adjudicating between the claims of 1st and 2nd defendants inter se. When we disposed of the appeal in that suit, we dismissed the memorandum of objections of the 2nd respondent. The present suit being instituted to obtain a declaration as to the character of the trusteeship which was decided in a prior suit and appeal, it is urged for the respondent that the matter is w judicatta and that the suit must fail on that ground alone.
6. When we held in Appeal No. 64 of 1920 [Ayiswaryat-nandaji Saheb v. Shivaji Raja Saheh 49 ML J 568], that sole trustees-ship was one of the incidents of this trust, we were not adjudicating upon the claims of the 1st and 2nd defendants in that suit inter se. The finding that sole trusteeship was an incident of the institution was held sufficient to defeat the claim of the illegitimate children. No doubt, the Memorandum of Objections was dismissed. But in that suit the present plaintiff and the defendant were ranged on the same side, and on this account 1 should not be prepared to deny one of them the right to prove his individual case against his brother if he has materials upon which he may establish that the right of trusteeship is joint and not single.
7. A material piece of evidence which was not considered by us in that appeal is an agreement filed as Ex. A (1) in which the appellant and the respondent in 1915 mutually agreed to appoint a common agent to manage the Devasthanams and that they should each take it in turns to be the managing trustee for one year at a time.
8. For the appellant it is now urged that this agreement constituted a bona fide settlement of a disputed claim and that the elder brother, who is the respondent in the appeal, is bound thereby. In his oral evidence the respondent stated that himself and his brother were on good terms at the time of the agreement and that there was no dispute between them, but he entered into the agreement because their agents or managers were disputing and he personally was under the mistaken impression that Jijamba Bai Saheba had a right to devise the trusteeship by will and that when he understood that he was labouring under a mistake, he took legal advice and read the judgment of the Subordinate Judge in O.S. No.43 of 1913. His brother the appellant gives a somewhat different account. He states that the object of the agreement was to avoid misunderstanding between the respondent and himself. But his second witness deposes that there were no dis-putes or misunderstandings between the parties and that the disputes were between their agents. If the parties were acting under a mutual mistake as to what their rights were, thinking that they were jointly entitled to the management of the Devasthanams, they will not be bound by such an agreement. Vide Cooper v. Phibbs I.L.R. (1925) M 116 and Daniell v. Sinclair (1881) 6 A C 181
9. I am of opinion in the first place that Ex.A (1) does not purport to be a bona fide settlement of an existing dispute between the parties to it as there was no dispute then as to which of the brothers should be the sole trustee in the event of its being found that sole trusteeship was a characteristic feature of the trust, and secondly, I think that the parties had no power to alter the scheme of the institution at their own will and pleasure as if they were settling some private right. [See the observations in A yiswaryanandaji Saheb v. Sivaji Raja Saheb I.L.R. (1925) M 116 . In Sivaji Raja Saheb v. Ayiswarya-nandaji Saheb (1915) 29 ML J 209 this Court decided an appeal relating to proceedings between the Mangala Vilas people and the present appellant and respondent as regards the appointment of a Receiver for the Devasthanam property. At that time it was considered that, rightly or wrongly, the two sons of the adopted son were in possession of the Devasthanam property, both parties assuming that they were rightly in possession. If therefore the respondent was mistaken his mistake was not without justification.
10. In the hearing of this appeal I have been shown no rea-son for departing from my conclusion in the prior appeal that the Rajahs of Tanjore who founded these religious institutions intended that they should be managed by a sole trustee. That conclusion is sufficient to dispose of the present appeal and to confirm the right of the elder son, who is the respondent, in his management during his life-time. But one or two minor points have been raised which may be briefly disposed of.
11. It was argued that the adoption by Kamakshi Bai Saheba of the father of the parties divested the widow of her estate and vested it in the adopted son, that his widow having continued nevertheless to manage the estate acquired a prescriptive right against the adopted son which she was entitled to devise by will. In her will (Ex. N) she bequeathed her right of management of the trust to both the sons of the adopted son jointly and she personally delivered over the keys to them both.
12. The Hindu law of divestment of a widow's estate by an adopted son applies to the property that she inherits from her husband. The trust property, which Government gave back to her by the grant of 1863 in order that she should mana as head of the family for the time being, created a right which was different from the right of a widow who enjoys property for her lifetime after the death of her husband. In this view she acquired no prescriptive right by managing the property. There can be no Stridhanam right in trust property and nothing during her management happened to destroy the institution of sole trusteeship, nor could the usage of the insti-tution be altered by mere custom for one or two generations. Moreover by her enjoyment as widow of the last male owner she could not prescribe for anything higher than a woman's estate. Lastly, she has no power to alter by will the natural course of devolution of a trust already in existence.
13. Then it was urged that the proceedings of the Sub-divisional First Class Magistrate in 1912 have become final under Article 47 of the Limitation Act as no suit was brought to establish the right of the defendant within one year. The Magistrate's order confirmed the possession of the two parties in this appeal until evicted in due course of law, on his finding that they should be considered to be in actual possession, and the proceedings were instituted by one of the sword wives' sons and ended unfavourably to him. No doubt, as he did not bring a suit within the limitation period he would have Been barred from raising the question of actual possession after the period of limitation. But, there was no necessity arising out of that order for the two successful parties to bring a suit to declare which of the two was entitled to a separate right of possession.
14. It is then suggested that the plaintiff in this suit, having assisted the defendant to defend the suit filed by the sword wives' sons (O.S. No. 43) and having shared the expenses of that litigation, the latter is estopped from now claiming a right subversive of his brother's interest. In our final judgment in the appeal we directed that the costs of the two respondents should be paid out of the Devasthanam estate. There is thus no question of estoppel arising out of the conduct of the prior suit and appeal, and this contention fails.
15. The result is that the appeal is dismissed with costs of the respondent payable by the appellant.
16. I agree.