1. First defendants appeals from a reversing judgment of Ramakrishnan, J. He allowed the respondent's suit for recovery of possession of the plaint schedule properties in their capacity that they were sole surviving trustees of a private family trust under which the properties had been endowed. One Srinivasa Naidu purchased in 1881 the plaint schedule properties and constituted the same, as we were told, as a trust or endowment for performance of certain objects. What precisely are the terms of the trust, are yet to be ascertained. The founder nominated his brother's son, Nayeena, to succeed him as a trustee, but made no further provision for devolution. Nayeena died in 1908, Parankusam, the son of Srinivasa Naidu, succeeded to the office and held it between 1922 and 1936. He died in 1936 leaving his widow Govindammal and a will Ex. B-2. He nominated her to be the trustee after his lifetime and provided further that she might, according to her will and pleasure, nominate any one as a trustee to succeed her to perform the objects of the trust. She accordingly nominated her sister's son by a will and died on 28-11-1958. We may in passing notice that because Parankusam was a minor, Parthasarathi, the eldest son of Sami who was a brother of Srinivasa, held the office until 1921. The respondents, sons of Ramanujam who was the third son of Sami, instituted the suit claiming that after the lifetime of Govindammal they were entitled to succeed to the trusteeship. The first court dismissed the suit on the view that the will of Govindammal dated 17-8-1955 by which she made the nomination in favour of her sister's son was valid. But on appeal, Ramakrishnan, I took a contrary view.
2. In our opinion, with due respect to Ramakrishnan, J. his view cannot be supported. He has, right through his judgment, proceeded on the basis that the trust in this case was property. Mr. T. R. Srinivasan, for the respondents, says that the beneficial interests in the trust properties was attached to the trusteeship. No such suggestion has been made at any stage, either at the trial or in the appeal before Ramakrishnan, J. The learned Judge took the trusteeship itself, irrespective of whether the beneficial interest was attached or not, as property and considered that to such property the rules of succession under the Hindu law applied. On that process of reasoning he thought that neither Parankusam nor Govindammal was competent to alienate the office treated as property belonging to the family of Srinivasa. In the view of the learned Judge, after the death of Govindammal the office of trusteeship reverted to the family of the founder which meant that the respondents would be entitled to succeed to the office.
3. It appears to us to be well established by now that a bare trusteeship to which only duties are attached which is in this part of our country known as Dharmakarthaship, is not property in any sense of the term unlike Shebait in Bengal. K. A. Samajam v. Commissioner, H. R. and C. E. Hyderabad : 2SCR878 held that the office of hereditary trustee was not property within the meaning of Art. 19(1)(f). The Supreme Court did not agree with the earlier view that such an office was itself property within the meaning of the Article if no emoluments were attached to it. The distinction between a Mahant and a Shebait in whose offices are blended not merely duties but personal interest in the trust property on the one hand and a mere office of trusteeship to which only duties are attached, was drawn. In Manathunainatha Desikar v. Sundaralinga : (1970)2MLJ156 to which one of us was a party, it was held that the Dharmakartha or Manager of a temple who had no emoluments attached to his office but only duties to discharge had no personal interest of beneficial character in the institution and that the office of Dharmakartha, though a highly prized office, could not be consider to be property when no material benefits were attached even apart from the context of Art. 19(1) of the Constitution. It follows, therefore, that the approach to the case made by Ramakrishnan, J. as if the office of trusteeship to which only duties are attached and no beneficial interest attached to the office was itself property, cannot be supported.
4. If the office of trusteeship is not property in the sense we have explained above. Gauranga Sahu v. Sudevi Mata, ILR 40 Mad 612 : AIR 1918 Mad 1278 will, in our opinion, govern the decision in the instant case. Sir John Wallis, C. J. with whom Abdur Rahim, J. concurred held the view that it was competent to the heir of the founder of a Shrine in whom the trusteeship had vested owing to the failure of the line of the original trustees, to create a new line of trustees. The rule was actually based on the presumed intention of the founder that the heirs should be at liberty to make fresh arrangements for devolution of the trust instead of leaving it to devolve in the family. Though that was not a case of nomination made by a widow, the ration of the decision applies to her too when either she took the office of trusteeship as an heir or as a nominee of the previous heir or nominee. In the course of arguments in that case, Sukhbir Singh v. Nihal Singh, (1913) 18 Ind Cas 232, was cited as authority for the proposition that where a widow, founder's heir, nominated a trustee she had a right to do so. We are not quite sure whether this statement can be extracted fairly from (1913) 18 Ind Cas 232. But we find it to have been referred to by Abdur Rahim, J. apparently with approval. The position, therefore, as we think, is that the office of trusteeship is not property to which the ordinary rules of succession under the Hindu Law would apply. The heir of the founder or his nominee, be it even the widow of the last heir of the founder, would be competent to make nomination to such an office.
5. Unfortunately, in this case, it has not been investigated, with reference to the facts emerged from record, whether trusteeship is a bare one to which only duties are attached and not any beneficial interest in the plaint schedule properties. As we mentioned, Ramakrishnan, J. proceeded on the assumption for which we can find no basis in his judgment, that the trusteeship was property. He did not express himself anywhere in his judgment that any beneficial interest in the trust property was attached to the office of trusteeship. Nor was this question gone into or decided by the trial court. As a decision on that question is essential for a proper disposal of the suit, it turns out to be necessary to remit the suit to the trial court. If the trial courts finds that the trusteeship is a bare one without any beneficial interest in the plaint schedule properties attached to it, the court should dismiss the suit. If on the other hand the trusteeship carries with it the beneficial interest, the suit will of course have to be decreed. The result of the suit will also depend upon the other questions including the impact of the provisions of the Hindu Succession Act, 1956. The appeal is, therefore, allowed. Costs will abide the result of the suit. We have heard full arguments on either side and we are not inclined, therefore, to direct refund of the court-fee paid on the memorandum of the Letters Patent Appeal.