1. This appeal arises out of a suit brought by three plaintiffs, under Section 92, Civil Procedure Code, after obtaining sanction of the Advocate General. It relates to certain kattalais in the temple of Sri Mulanadaswami of Poovalur within the Trichinopoly District. One Annavu Chetti was admittedly managing the kattalais till his death in December 1909. He left a Will (Exhibit X, dated 17th November 1893) by which he appointed the defendants to manage the kattalais besides leaving other directions. The present suit was instituted on the ground that the defendants ate not legally constituted trustees of the suit kattalais. The Subordinate Judge finding that the defendants are the hereditary trustees and that the charges of misconduct alleged against them have not been made out framed a scheme. The plaintiffs appeal. The first and most important point that arises in the appeal is the subject of the 8th issue. On this issue, the plaintiffs' case is that the Vellan Chetti community were the founders of the kattalais and that they did not appoint Annavu as a trustee and that consequently neither Annavu nor defendants are lawful trustees. With the help of the oral evidence and Exhibit (1)(a partition deed) the following pedigree of the defendants family may be constructed.
--------- A Muthayan B----------
| | |
Chockalinga Nallan (i) Nalla
| | Vinayaga
Rajahgam | |
| | Jivantha-
Jambulingam | lingam (2).
(defendant No. 2.) |
| | | |
Viswa- Kanaka- Sabapathy Somasundara
nathan sabai | |
| | Kalyana Annavu (3).
Subramania. Tirumala Snndaram
(defendant No. 1.)
2. (It is suggested for the respondents that Nallan and Nalla Vinayagam are the same, persons. The suggestion is likely but is opposed to the evidence of D.W. No. 1. The point is not material). The earliest item of evidence that is available is that Nallan (No. 1) purchased 4 acres of land in July 1816, and that the land was enjoyed by him on behalf of the Sayarakshai and ardhajama kattalais (see Exhibit IV). The next document is Exhibit II a patta issued in 1860 by the Collector of Trichnopoly to Jevanthalinga Chetty 'of the sayarakshai and ardhajamam kattalais of Sri Moolanathswami.' It is not clear to what kattalias Exhibit D series relate and, therefore, they do no help us in this case. We then find a series of documents connected with Annavu ranging from 1865 to 1908 in many of which Annavu (No. 3) was described as the Kariyam or agent of the sayakshai and ardhzjarnam kattalais of Sri Moolanathaswami (see Exhibit A dated 5th September 1877, A2 dated 28th November 1881, A3 and Vd, dated 26th January 1885, V2 dated 4th August, 1880, A4 dated 2nd April 1887, and A.5 dated 17th May 1904). Exhibit III is a patta issued 'to Annavu Chetty for Sri Moolanathaswami' by the, Collector of Trichinopoly in 1878. It is a fair inference from these documents that members of the family of Annavu were the persons who took the greatest interest in the kattalais and they were successively the trustees of the kattalais from 1816 to 1909 and as there is nothing in the succession inconsistent with their being hereditary trustees, I think it is a proper inference to draw from these documents, that the members of the defendant' family were, holding as hereditary trustees see Rama Das v. Hanumantha Row 12 Ind. Cas. 449 : 36 M. 364 : (1911) 2 M.W.N. 387. The recitals in Exhibit X also seem to support this inference, but as it is objected that they are not legal evidence; Bansi Singh v. Mir Amir Ali 11 C.W.N. 703; I prefer not to rely on them. Neither Exhibit VIII nor Exhibit D series nor the incident deposed to by P. Ws. Nos. 1, 2, 4, and 6 relating to an assembly of the Vellan Chetti's consequent on a misunderstanding between Annavu and the defendants (assuming the incident to be true) supports the appellant's argument that the whole of the Vellan Chettis' community must be regarded as the founders of the trustees of the kattalais. The case in Appasami v. Nagappa 2 Ind. Dec. 931 cannot help the appellants as the evidence in that case disclosed circumstances inconsistent with the hereditary right set up.
3. On this finding that the trusteeship of the suit kattalais was hereditary, it follows that first defendant who is the heir of Annavu on his death in 1909 is entitled to be the trustee of the kattalais. No doubt, the second defendant has no such right and it is urged for the appellant, relying on Narayanan Chettiar v. Lakshmanan Chettiar 29 Ind. Cas. 1 : 28 M.L.J. 571 that we should give directions so as to prevent the second defendant from having anything to do with the suit kattalais. As the first defendant who is the lawful trustee is willing to associate the second defendant with himself, in carrying out the work of kattalais the facts of this case do not resemble those in Narayanan Chettiar v. Lakshmman Chettiar 29 Ind. Cas. 1 and it is unnecessary to give any directions relating to the second defendant.
4. In view of the finding as to the hereditary nature of the trusteeship, the question whether Annavu could acquire see Palaniandi Malavarayan v. Vadamalai Odayan 28 Ind. Cas. 9576 : 2 L.W. 723 and did acquire the office of trusteeship by prescription does not rise and need not be discussed.
5. It appears that some of the lands in the suit (viz., Items Nos. 32, 33 and 42 covered by Exhibit Vaa, Item Nos. 34 and 39 covered by Vbb Items Nos. 38 and 41 covered by Vdd, Item No. 60 covered by Exhibit A4, Items Nos. 66 and 68 covered by Exhibit Vaa, and Items Nos. 53 to 59) Were not connected with the sayarakshai and ardhajamam kattalais. The defendants are not estopped from contending that they do not relate to the sayarakshai and ardhajamam kattalais. The decisions in Srinivasa Moorthy v. Venkatavarada Iyengar 11 Ind. Cas. 447 : 34 M. 257 : 15 C.W.N. 741 : 8 A.L.J. 774 : 13 Bom. L.R. 520 : (1911) 2 M.W.N. 375 : 14 C.L.J. 64 : 21 M.L.J. 669 : 10 M.L.T. 263 : 38 I.A. 129 (P.C.) and in Appeal Nos. 285 and 381 of 1917 do not apply. The various title-deeds mention the specific purposes for which these lands were purchased. It is clear from the plaint that the plaintiffs intended to obtain relief in respect of these lands also though they made an erroneous allegation that they were attached to the sayaraksha and ardhajamam kattalais. I think the interests of the temple are best served by modifying the decree of the Court below by directing that the accounts to be submitted by the defendants should include the income of those lands attached to other minor kattalais subject in the case of Items Nos. 32, 33 and 42 to the result of the suit instituted in respect of them. The appellant next contended that the suit kattalais are subject to the Devasthanam Committees. Their argument is that, as the temple itself is not governed by Section 4 and is subject to the supervision of the Devasthanam Committee, the kattalais must be similarly subject, but we have got to do, not with the temple, but with the kattalais which are independent trusts. The words 'religious establishment' in Section 3 cover the case of kattalais and unless the kattalais itself is such that its trustee is to be nominated by the Government or a public officer or the nomination is subject to the confirmation of the Government or of a public officer, Section 3 cannot apply to the kattalais see Vencatabalakrishna Chettiyar v. K. Ramaiyangar 5 M.H.R.R. 48. It, therefore, follows that the Devasthanam Committee has no right of supervision over the kattalais. This leads me to the memorandum of objections filed by the respondents.
6. The first Clause of the scheme must be modified thus: The defendants will submit their accounts once a year to the Court; and a copy will be posted up in a conspicuous part of the temple.
7. The existing third Clause is unnecessary. The defendants will file accounts for all the suit-lands. The fourth Clause may be modified thus: All the surplus funds above Rs. 1,000 shall be invested in securities net authorised by the Indian Trusts Act except with the permission of the Court. There will be a clause added giving liberty to any interested parties or the Advocate-General to apply for any desirable modification of the scheme. But it is not desirable to provide that any breach of trust by the trustees may be dealt with by the Court on an application by the parties interested, as the appellants want us to do.
8. This is no reason why the respondents or the kattalais should be deprived of their costs. I would modify the order of the lower Court by directing the appellants to pay the costs of the respondents throughout including costs of the former appeal.
9. I agree.