1. These appeals are by the Zamorin of Calicut from decrees in two suits O.S. Nos. 1 and 2 of 1929 in the District Court of South Malabar in both of which he was the 2nd defendant. Both suits were brought under Section 63 (4) of the Hindu Religious Endowments Act to amend a scheme of administration settled by the Hindu Religious Endowment Board (the 1st defendant in both suits) under Section 63(1) of the Act in respect of the Guruvayur Devaswom of which the appellant is a trustee (Uralan). The plaintiff in O.S. No. 1 was the Malliseri Namburi the 1st respondent in A.S. No. 211. His claim was that he also was an Uralan of the Devaswom. His complaint was that the Board had in their scheme ignored his rights and he prayed that the scheme be amended in that respect. The plaintiffs in O.S. No 2 were certain worshippers on whose petition the Board had started the enquiry, which led to the scheme. Their complaint was that the Board had accepted in toto the scheme put forward by the Zamorin and had not adopted sufficient safeguards for the proper management of the institution and their chief prayer was that the scheme should be amended by adding to the number of trustees and placing the management in the hands of a Board of 5 trustees, three of whom were to be nominated, and a manager who was to be appointed by the Board. The appellant was the chief contesting defendant in both suits. He resisted the Malliseri Namboori's claim to Uraima on certain technical grounds which will be explained more fully later, depending on the construction of the decree of this Court in A.S. Nos. 8 of 1917 and Section 73 of the Religious Endowments Act. He resisted the suit of the worshippers on the ground that the amendments in the scheme as proposed by them were unnecessary. The Board while adopting an attitude of unconcern about the rights claimed by Malliseri Namboori, was inclined to favour the proposals of the worshippers as to future management because, in its opinion, the appellant had not worked the scheme already settled by it in the proper spirit and it was improper to leave any longer an important temple like Guruvayur in the sole management of a hereditary trustee like the appellant who could never pay personal attention to the temple affairs both by reason of the great age at which Zamorins usually attain the stanom and the distance of their residence from the temple.
2. Two groups of questions thus arose in the suits the first, relating to the claim of the Malliseri Namboori and the second, to the amendments of the scheme which were either proposed by the worshippers and the Board or became necessary by the Namburi's claim being allowed.
3. The learned Judge in a very exhaustive judgment upheld the claim of the Malliseri Namboori to be a hereditary trustee of the temple with rights in the management as declared in the decree in A.S. No. 35 of 1887 of this Court. He also made certain amendments in the scheme of administration settled by the Board which were either necessitated by the Namburi also being recognised as a trustee or which in his view were required for the future good management of the institution.
4. In dealing with these appeals together it will be convenient to deal first with the questions relating to the Namboori's claim and then to deal with the scheme.
5. To understand the dispute about the Namboori's right it is enough to state the principal events in bare outline. In Appeal Suit No. 35 of 1887 in a suit between the Zamorin and the members of the Malliseri Illom this Court went elaborately into the dispute and declared both parties to be entitled to the joint Uraima right of this Davaswom and also that, except so far as an agreement therein marked Ex. O (Ex. 1 in this case) describes special powers as vested in either party, both have equal powers to manage all the affairs of the temple. There were also some specific declarations relating to specific matters which are not now material. In 1912 four persons as relators with the sanction of the Advocate General filed a suit, afterwards numbered as O.S. No. 27 of 1916, against both the Uralens alleging mismanagement and praying for their removal and for a scheme. The suit ended in a rather curious manner in 1918. Pending the suit, the Court of Wards took charge of the estate of the Zamorin for 12 years and with it of the management of this Devaswom. The Namboori was also induced to grant a power of attorney to the Court of Wards to manage the temple. The management having thus got into capable hands for a considerable time, the Subordinate Judge before whom the suit was pending thought it unnecessary to frame a scheme, but directed that the Namboori was not to revoke the power of attorney as long as the Court of Wards was in management and otherwise dismissed the suit. The plaintiffs took the matter in appeal to this Court in A.S. No. 8 of 1917 and represented that it was in the power of the Namboori to revoke the power of attorney at any moment and that, therefore, some other safeguard should be provided for the management by the Court of Wards not being interfered with. The Court considered that in the interests of the Devaswom it was necessary that the Court of Wards should be sole trustee while in management and that it was not enough that it should hold a power of attorney from the Namboori. Therefore in order to provide for the undivided responsibility of the Court of Wards, this Court removed the members of the Malliseri Illom from trusteeship. In other respects the suit was dismissed. On an application for review by the Namboori who had not appeared at the first hearing and who complained that sufficient provision ought to have been made in the decree to safeguard the interest of the Illom after the expiry of the management by the Court of Wards, this Court held in effect that all that their previous judgment intended to do was to provide for the period of management by the Court of Wards, after the expiry of which liberty to apply to be put back into their respective rights was impliedly reserved for all parties, and in order to remove doubts made an express declaration that, after the termination of the management by the Court of Warde, all parties to the suit should have liberty to apply to vary the decree with reference to the then existing facts.
6. The management of the estate of the Zamorin by the Court of Wards terminated in 1927 and the Devaswom was handed over by the Court to the Zamorin in September 1927. The Court of Wards naturally could, not accede to the Namboori's request to be put into joint possession because technically it was not acting under the power of attorney of the Namboori after the decree of this Court above mentioned. The Zamorin having thus got an unlooked for advantage over the Namboori was in no mood to part with it. By this time the Hindu Religious Endowments Act had come into force and certain worshippers who wished to take advantage of its provisions applied to the Religious Endowment Board to hold an enquiry and settle a scheme. It is the scheme settled at that enquiry that is the subject of these appeals. So far as the Namboori's rights are concerned, he urged them before the Board. But they took the view that it was for him to establish his rights before the Court, and that they could not reinstate him, Thereupon he started two proceedings, He filed the Suit No. 1 of 1929 to amend the scheme which ignored his rights and he also filed a petition in the suit of 1912 asking to be recognised in or restored to the position which the Illom occupied before the Court of Wards management began, in pursuance to the liberty to apply expressly reserved in A.S. No. 8 of 1917.
7. The Zamorin does not, as indeed he cannot after the decree in A.S. No. 35 of 1887, deny the right of the Namboori's Illom to joint Uraima with him. But he contended (1) that the decree in A.S. No. 8 of 1927 deprived the Illom of the Uraima till the Namboori became restored to it by appropriate proceedings and that no such proceedings have been taken; (2) that so far as the application of the Namboori in the suit of 1912 is concerned, it is ineffective because according to the Full Bench decision in Veeraraghavachariar v. Advocate-General of Madras 106 Ind. Cas. 665 : 51 M. 31 : (1927) M.W.N. 816 : 39 M.L.T. 422 : 26 L.W. 728 : A.I.R. 1927 Mad. 1073 : 53 M.L.J. 792 it was incompetent to this Court to reserve power to modify a scheme and, therefore, the power could not be used; and (3) that so far as the Suit No. 1 of 1929 is concerned, the Court has no power on a proper construction of the relevant provisions of the Hindu Religious Endowments Act to appoint in a suit brought under Section 63 (4) new trustees to an excepted temple.
8. The learned Judge on the strength of the decision in Veeraraghavachariar v. Advocate General of Madras 106 Ind. Cas. 665 : 51 M. 31 : (1927) M.W.N. 816 : 39 M.L.T. 422 : 26 L.W. 728 : A.I.R. 1927 Mad. 1073 : 53 M.L.J. 792 held that the direction in the judgment in review in A.S. No. 8 of 1917 reserving liberty to apply inter alia to the Namboori to be recognised as or restored to the trusteeship could not be given effect to. He, therefore, dismissed the Namboori's application in the suit of 1912 (M.P. No. 344 of 1929). The Namboori has acquiesced in that decision and has not appealed therefrom.
9. The learned Judge also held that in a suit brought under Section 63 of the Religious Endowments Act to amend a scheme settled by the Board the Court has only the powers of the Board, which according to him do not include the right to appoint a new trustee in an excepted temple.
10. The learned Judge having thus accepted the two technical objections raised by the appellant was faced with the difficulty that the Namboori's suit if regarded as one to get himself appointed as trustee of the Devaswom would be incompetent under Section 73 of the Act as the consent of the Board had not been obtained for its institution. The learned Judge overcame this by holding that the Namboori's suit may be regarded as one for the vindication of his personal rights or the rights of his Illoms to the trusteeship and not one for any of the reliefs for which a suit under Section 73 is necessary. For the purpose of ascertaining the Namboori's rights in such a suit, the learned Judge held that he was at liberty to consider the effect of the decree in O.S. No. 27 of 1916. On this last point he came to the conclusion that on the decree ceasing to operate (by the termination of the management of the Court of Wards) the rights affected by the decree revived. The result was that the Namboori became automatically restored to his position before the suit began, as a hereditary co-trustee with the Zamorin.
11. It is plain that if the opinion of the learned Judge about the meaning and effect of the decree in A.S. No. 8 of 1917 is right, the technical objections raised by the appellant in bar of the suit and upheld by the Judge together with the answer to them on which he found the Namboori's suit still maintainable, all become irrelevant as they would not arise at all. This was admitted by the learned Advocate for the appellant.
12. We agree with the learned Judge in his construction of the decree in A.S. No. 8 of 1917. The appellant's Advocate has drawn our attention to the judgments and decree in the appeal and urged that the removal of the Namboori though only intended, for a temporary purpose to prevent the power of attorney given by the Illom to the Court of Wards from being revoked during its management--was still in terms neither temporary nor conditional but absolute and effective until altered as contemplated by subsequent application. We are unable to agree with this contention. To ascertain the meaning and effect of a decree of any Court, it is permissible, where the words are capable of more than one meaning, to look at all relevant papers and circumstances which were before the Court and the object which the directions contained in the decree were aimed to achieve. Of two possible constructions, the Court will not accapt the one which leads to plain injustice and makes its own decree an instrument of depriving parties, whose case had not been heard and decided, of valuable and cherished rights which no one had any intention to destroy. That would be the effect of adopting the appellant's construction of this decree. It is not necessary to repeat the considerations set out in paras. 28 to 30 of the judgment of the lower Court which deal with this question. It is sufficient to refer to the fact that removing the representatives of the Malliseri Illom was only an expedient devised to ensure that the management by the Court of Wards should not be disturbed by the power of attorney given by the Illom being revoked. It was not for any misconduct. In fact the only male member who had any subsisting rights in the Illom was then a minor and, therefore, incapable of misconduct. As pointed out by the learned Judge, when this Court said in Ex. J that it would be open to the Sub Judge to consider whether any change should be made in the management, it meant not the management of the Court of Wards but the management before the Court of Wards the management by both the trustees. The effect of this is that on the termination of the Court of Wards' management the previous state of affairs revived and Malliseri Illom became re stored to its previously existing rights.
13. In this view of the case the objection to the Namboori's suit as one under Section 73 of the Act and as involving the appointment of a new trustee for which the Court has no power in a suit under Section 63 does not arise. He is entitled as a trustee to sue under Section 63 (4) to have the scheme settled by the Board which ignores his rights so amended as to provide for them. The Board itself does not object to this and the worshippers also do not object. The main ground of Appeal No. 211, therefore, fails. The only matter left in it is whether the concequential amendments made by the learned Judge to the scheme are suitable. It is convenient to deal with this matter separately.
14. We shall deal now with the major objections and suggestions of the several parties before the Court to the schemes settled by the learned Judge. The minor objections can be dealt with in finally passing the draft scheme on the footing of our conclusions.
15. Objections and suggestions of the Appellant,
16. (1) Objection is taken to the manner of appointing the manager on the ground that it will in practice vest the real power of appointment in the Board and not in the trustees whose nomination the Board is empowered to veto. The procedure of the Zamorin submitting 3 successive names in 3 months to the Board is also criticized as cumbrous and likely only to result in much needless waste of time. Taking the scheme as a whole the learned Judge while not acceding to the request of the Board and the worshippers to add new trustees as in hie view the Court had no power to undo so in a suit brought under Section 63 produced almost the same effect by taking the appointment of the manager, the chief executive officer, out of the hands of the trustees. The elaborate procedure prescribed in Clause 3 of the scheme of the Zamorin sending nominations to the Board, their consulting the Namboori and on the Board's disapproval of the nominated person itself calling for 2 more nominations one after the other after the interval of a month each time and after all this the Board choosing its own man, really puts the appointment into the hands of Board and if we intended to uphold that principle we should adopt the much more simple and direct method of empowering the Board to make the appointment in the first instance. But we think the principle wrong. The duties and powers of trustees are generally laid down under Section 40 of the Act. The provisions of the other sections in Chap. IV of the Act which applies to all Religious Endowments impose specific duties on trustees and confer specific powers on the Board in respect of all Religious Endowments. Chapter V relates to ordinary temples and Chap. VI to maths and excepted temples like Guruvayur. The policy of the. Act as seen from a comparison of these chapters is to place maths and excepted temples in normal conditions under much less direct and detailed interference from the Board in matters of internal management than ordinary temples. This does not mean that in cases of proved mismanagement or incapacity or in the imperative interests of future good government, such interference may not have to be provided for in a scheme. But in the absence of such special grounds we conceive that the proper aim in a scheme of administration for an excepted temple is to leave the internal management as much as possible to the trustees providing only such safeguards as are sufficient to prevent grave misgovernment and to make the power of superintendence of the Board effective.
17. There is absolutely no evidence in the case of any previous mismanagement by the present trustees in this case for the very good reason that for 12 years ending September, 1927, the temple was in hands of the Court of Wards. A scheme was settled by the Board on 3rd November, 1928, leaving the power of appointing the manager to the existing trustee who wap to consult the Board about it. These suits were filed within six months afterwards. The learned Advocate for the worshippers complained that the learned Judge had shut out evidence of mismanagement. But the evidence which the learned Judge considered irrelevant and so excluded was not evidence of mismanagement before the date of the scheme but of evidence that the scheme had not worked satisfactorily, we consider that the learned Judge's opinion that in a suit under Section 63 for the modification of a scheme evidence to show how the scheme worked is inadmissible is wrong. Obviously the need to amend a scheme may arise as much from the fact that it does not work or has not been worked properly as from previously existing facts such as mismanagement. But we consider that this defect does not affect the case seriously because we agree with the learned Judge that the evidence which was intended to be offered and which the Board has by separate petition requested this Court to admit in appeal was not of great moment in the question of power of appointing the manager but relates to suggested improvements in lighting, sanitation, custody of records and the like. There being thus no question of mismanagement, we think it appropriate that the appointment of manager should be with the trustees who are the persons really responsible. It is argued that Mr. Venkatarama Sastriar in the lower Court said that he did not object to a provision for the appointment being made with the previous consent of the Board. But having regard to the elaborate provisions found necessary by the learned Judge in the attempt to reconcile that consent with any real freedom of choice in the trustees which ends as it must in the Board really making the appointment, we think it proper to abandon the attempt and to give the power of appointment to the trustees themselves to be exercised as between themselves in the manner provided by the agreament, Ex. 1 after consultation with the Board.
18. We think the terms of 2 years fixed by the scheme too short as it will fail to attract desirable persons and it is necessary to give more time for a new man to become proficient in his work. We fix the term as five years. The pay should we, think, be Rs. 200-10-250, the man if re-appointed to start on the salary he had before re appoint' mant. The minimum qualification for appointment will also be prescribed by requiring that candidates must be at least holders of the B. A, degree of the Madras or any other recognised University in India and must possess experience of office management and knowledge of accounts unless the person appointed is a retired Government official who has held permanent office drawing a pay of not less than Rs. 250. Every appointment must be made after calling for applications by public advertisement.
19. The trustees will make rules prescribing the duties and powers of the manager in detail and submit them to the Board and on failure of the trustees to do so in 3 months the Board will itself make such rules.
20. The powers of punishment and dismissal of the manager must be exercised by the trustees on the lines indicated in the agreement Ex. 1 as far as it goes and in matters not therein provided by the Zamorin in consultation with the Malliseri Namboori, the decision of the Zamorin to prevail in case of disagreemant.
21. We understand that the manager who was in office when these suits began has been dispensed with by the appellant and that there is now an appeal pending before the Board by the manager. We do not wish in any way to interfere with the merits of that appeal but we think it desirable that the appointments under this scheme should start independently of the result of it and, therefore, direct that without prejudice to the appeal the term of that manager should terminate at the end of two years from his appointment which we understand expires in November, 1930. The trustees will make arrangements for a fresh appointment from that date.
22. Objections and suggestions of the Malliseri Namboori.
23. His position as co Uralan having been upheld by the lower Court and by us, his chief concern in this part of the case has been to secure that his rights are practically preserved and given effect to in the scheme. The declaration contained in Clause (1) of the scheme as framed by the Judge fully achieves this in theory. But his learned Advocate has pointed that some of the other clauses do not recognise his right to participate in the acts of the trustees in all of which he claims an equal right with the Zamorin. So far as his complaints relate to matters which are not specifically provided for in the agreement the two trustees must act together and the provisions in the scheme must be go drawn as to recognise this but so as to prevent a dead-lock in case of disagreement,
24. Objections and suggestions of the Board and the worshippers.
25. 1. These may be dealt with together as the most important of them which relates to the appointment of new trustees or associates to the hereditary trustees, is common. Both the hereditary trustees naturally object to this proposal. The learned Judge did not appoint new trustees as he held that he had no power to do soin a suit under Section 63 (para. 36) and he declined to associate other persons with the trustees in the administration as contemplated by Section 63 (2) for the reason that it would probably lead to friction which would probably wreck the scheme (para. 57). The ground on which the proposal for additional trustees or associates was made is as the Judge puts it that the public has been dissatisfied with the management of the temple and that there is a considerable body of feeling that the administration of the temple should not be left solely in the hands of hereditary trustees.
26. The question whether the Board in framing a scheme under Section 63 or the Court in a suit to amend a scheme so framed has the power to appoint new trustees in an excepted temple in view of Section 73 of the Act which lays down that a suit under that section must be brought for appointing or removing the trustee of an excepted temple has been argued at some length. It is not necessary for us to express any opinion on these points in the view we take of the undesirability of exercising the 'power even if it exists. The Board itself did not exercise the power of appointing additional trustees in this case and, therefore, the question whether such power if exercised would have been valid does not arise at all. So far as the Court is concerned the question does not arise as we do not think this a fit case to appoint new trustees for the reasons already mentioned in dealing with the appointment of the manager. The same remark applies to the appointment of persons or a separate body to associate with the hereditary trustees in the management. The power to do this in the case of excepted temples is not expressly conferred on the Board by any provision of the Act. But it is argued that it is implied by the language of Section 63 (2) which applies to maths. Assuming that it is to be so implied, the Board which is so em powered has not exercised the power and no question arises whether the Board would have been entitled to exercise the power in the case of this temple. So far as the Court is concerned we agree with the learned Judge that such a step would only lead to friction and would wreck the scheme. We may add that as present advised we do not see any difference between the legal position of persons or bodies to be associated in the administration with hereditary trustees and those trustees themselves although it may be permissible to entrust them with specific duties or departments of the administration. Qua the duties entrusted to them, they would be subject to the same duties and possess the same powers as trustees. We see no ground at present to complicate the machinery of the administration in the way suggested.
27. 2. The opening of the Bhandarams has been made a point of complaint by the worshippers. There was no evidence whatever that the trustees or temple, officials have been guilty of any malpractices during or after the counting. In this, as in other matters, the complaints appear to be due to suspicion engendered of the feeling that the administration should not be left in the hands of hereditary trustees. We are bound to say that we have not found any justification for this suspicion in the case at any rate of the Bhandarams. The directions of the learned Judge in this matter must, therefore, be simplified. It is not necessary, for the Inspector of the Board to have a key but the manager, the responsible official on the spot, must have one. Notice to individual worshippers is not necessary but a public notice of the opening may be put up. Those who care to attend may do so, and 'any two of them will attest the formal entries. The opening may take place on fixed occasions a certain number of days before and after each of the two principal festivals ekadasi and vaisakham when offerings are largely received.
28. 3. All available surplus should be invested. But all mortgages and purchase of land and investments in non trustee securities must have the previous sanction of the Board. All investments should be reported to the Board and should be in the name of both the trustees as such. All title deeds and valuables shall be kept in a safa place in the Devaewom premises.
29. The other matters dealt with in the Judge's scheme were not objected to.
30. The parties will file in Court drafts embodying the above modifications in 2 weeks and they will furnish to the other parties copies of each other's drafts 8 days before the next hearing. The appeals will stand adjourned for final orders to 3rd November for being spoken to on the questions of the appointment of a treasurer.
31. These appeals and the memorandum of objections coming on for being spoken to, the Court delivered the following
32. Judgment.--Final scheme has been drawn up and passed to-day. Costs of all parties in Appeal No. 212 of 1930, will come out of the estate, Rs. 500 each to the four parties, Zamorin Raja--2nd defendant, Malliseri Illom 1st defendant, Hindu Religious Endowments Board, and plaintiffs. There will be no costs in Appeal No. 211 of 1930. No orders are necessary on the memos of objections. Second defendant (Zamorin Raja) will get costs of printing out of the estate on presentation of vouchers accepted by the Deputy Registrar.