1. The appeal arises out of a gait brought under Section 92 of the Civil Procedure Code with respect to a temple and the properties alleged to have been dedicated to the temple. Defendants NOS. 1 to 4 are the hereditary archakas of the temple. The District Judge. has passed a preliminary decree directing the removal of the defendants from the trusteeship and found that the properties in suit were, With the exception of two items, in fact the endowments of the plaint temple, which was a public one.
2. As regards the question whether the properties formed the endowment of the plaint temple or were personal inans of the defendants family, as contended by defendants, we have sanads as well as Inam Registers and title-deeds and takeeds in connection with these properties. Items Nos. 5 and 12 are the properties which are found by the Subordinate Judge to be service inans, that is to say, grants to the defendants ancestors for the performance of archaka service. As regards the other items the Subordinate Judge found that the grants were made to the idol, and that consequently the temple is entitled to the entire income.
3. The contention of the defendants with regard to those properties, as urged by Mr. A. Krishnaswami Aiyar before us in the appeal, is that even if the grants were to the temple, any surplus that accrues after the performance of naivadyam and deeparadanai, mentioned in the sanad, was intended to be appropriated by the defendants. It is not necessary to refer to all the sanads, it would be sufficient to take one of them as a sample. Exhibit XI, dated 2nd June 1764, is styled: 'Deed of gift of land executed by two persons in favour of Akilandakoti Brahmananda Nayaka Sri Swamivaru of Buchpeta.' The dooument goes on to say: 'We have dedicated 4 kathis of land: one kathi dry, one kathi wet, in all 2 kathis, in Yudumudi Gundooru Pargana and 2 kathis, one dry and one wet, in Karakatoor as maniam for conducting your daily naivadyam. and deeparadanai by archaka Muthuvei Vydya Padmanabhacharlu (the defendants ancector).' The concluding words of the grant are 'so he shall cultivate the same every .year and use the produce thereof; he, 'his sons and grandsons in succession shall enjoy the same for ever and render the daily naivadyam and, deeparadanai of Sri Swamivaru and live happily.' The argument of the appellants is that the latter words indicate that, so long as the archakas parformed the daily naivalyam and despradanai, they Were entitled to use the sarplus income of the land for their own purpose. The Subordinate Judge did not accept this contention and we are unable to say that the construction which he placed on the sanads is wrong. The grant is expressly to the god installed in the temple, the purpose for which the grant is made is the performance of the daily naivadyam and deeparadanai, the ancestor of the defendants is described as arohaka, and it is in that capacity that he is to have possession and enjoyment of the land, which is given to the god as the donee. The archek is not the donee, but is only to carry out the objects of the gift. In arriving at this conclusion we are strengthened by the decision of the Inam Commission which appears from the Inam Registers, title deeds and takeeds issued in connection therewith. The Inam Register describes the land as desadayam granted for the expenses attending the performance of certain rites in the pagoda. The grantee is mentioned as Bachupet Sri Venkateswara-swami and the recommendation of the Commission is that the inam should be continued to the Venkataswaraswami Pagoda at Bachupet, The title deed is issued to the manager for the time being of the Sri Venkateswaraswami Pagoda, i.e., to the ancestor of the defendants.
4. The inam. is also described as deuadayam inam for the support of the temple. It is true, as pointed out by Mr. Krishnaswami' Aiyar and as found by the Subordinate Judge, that the defendants and their ancestors have all along acted on the footing that whatever income was left after meeting the ordinary expenses of naivadyam and deeparadanai (lighting of temples, etc.) could be appropriated, and was in fact appropriated, by them. It is argued that this is a case of an ambiguous document and that we ought to so interpret it, taking into account the conduct of the parties. It is not necessary for us to discuss the rule of construction which is referred to in Abhiram Goswami Mohant v. Shyama Charan Nandi 4 Ind. Cas. 449 , as in the present ease we are clearly of opinion that the gift was to the temple and as far as back as 1764, in any event, the defendants ancestor accepted that position and never before this, proceeding have the defendants put forward the present claim that they are entitled to all the surplus income, after meeting the ordinary expenses of naitadyam and deeparadanai. It would be a dangerous proposition to lay down that, if the trustees of religions trusts have for many years been applying the income to their own personal use, we must construe the trust-deed in the light of such conduct. There is really no room here for any such construction as is sought to be put upon the sanad by the appellants. Mr. Krishnaswami Aiyar referred us to a number of English oases in support of the proposition that, where there is a gift to a corporation or an individual and the donee is to perform certain charities out of the properties, the subject of the gift, any surplus income left after the performance of the charities indicated accrues to the benefit of the donee. Even if that proposition were accepted in general terms as contended for by the appellants, it is difficult to see how it would, in any way, help the appellants' case, as the donee in this case was not the ancestor of the defendants but the temple or the god. The result of that doctrine, which, no doubt, is a sound rule of construction, if properly applied, would give the surplus income to the temple and not to the defendants. This rule of interpretation is discussed by Lord Cairns in Attorney-General v. Wax Chandilers' Co. (1873) 6 H.L. 1, The learned Lord says: 'it appears to me that the difficulty is much more apparent than real....Cases of that kind are not cases of condition at all, they are cases where the beneficial interest in the land is portioned out among various objects.' Here the intention of the donor apparently was that the entire income was to be devoted to the use of the god. The donor did not contemplate, having regard to the actual income at the time, that any surplus would be left. If any surplus is left, as is now the case, that must, according to the general rule applicable in such circumstances, be applied for the benefit of the temple.
5. As regards the two items Nos. 5 and 12 which the Subordinate Judge found were the hereditary inams of defendants family burdened with the performance of archaka service, Mr. Ganapathi Ayyar, who objects to the finding of the Subordinate Judge with respect to them in his memorandum of objections, conceded before us that the finding in respect of item No. 5 could not be successfully attacked. As for item No. 12, no doubt the language used is somewhat different from that with respect to the items Nos. 6, 2, 4 and 8. The Subordinate Judge has held with reference to item No. 12 that it is an archaka service inam. But his construction was not sought to be upheld, and very rightly, by Mr. Krishna-swami Aiyar, The deed of gift with respect to this land, Exhibit 12, is in these terms: 'Deed of gift in favour of Mathevi Vydya Padmanabhacharlu (an ancestor of the defendants) for the daily naivadyam and deeparadhnai of Sri Swamivaru, Buehupeta.' In Cheknama also, Exhibit 12 (C), the land is described as being given in favour of 'Akilandakodi Brahmanandanayaka Sri Swamivaru of Bachupeta, that is, the god installed in the temple for daily naivadyam and deeparadanai,' In the Inam Register Exhibit 12 (b) the land is described as Devadayam. These documents show that this is a gift for the performance of the worship off the deity and that the ancestors of the defendants were holding this land for the performance of that worship: while with respect to item No. 5 (Cherukumithi village) that is granted expressly to the defendants' ancestor for rendering archaka service to the god. There is a striking difference in the language used in Exhibit II, a sanad of 1776, with reference to item. No. 5 (Cherukumadi) and the remaining items, Nos. 2, 4, 6 and 8. As regards item No. 5 the document says that the produce of the lands was granted for archaka service and that the archakas will cultivate the land. and enjoy the produce, whereas in the cases of the other items the words are: 'He (the archaka) will enjoy the produce of the lands for ever by rendering the Sri Swamivaru daily naivadyam and deeperadanai service' This also appears to support the construction which we have placed on the sanads in the earlier portion of oar judgment. We do not think that there is really any substantial distinction between the grant of item No. 12 and of items Nos. 6, 2, 4 and 8. There is no suggestion in Exhibit 12 that the donor contemplated that if any surplus was left it should go to the person who had to look after the service. So far as item No, 12 is concerned, the memorandum of objections must be allowed and it must be treated on the same footing as items Nos. 6, 2, 4 and 8,
6. The next Question which remains to be considered relates to the removal of the defendants from their office. As already stated, they are the hereditary trustees and archakas of the temple. The Sub-Judge has directed their removal mainly on two grounds, the first of which is that, in his opinion, it is not desirable that the office of archaka should be combined with that of the trustee. No doubt generally speaking, this would be so, for in such cases, there would be no authority to supervise the work of the archakas. At the same time there are temples in this Presidency where the office of trustee is combined with that of archaka; and it is possible to appoint a committee or some other authority to supervise the management. The other ground given by the learned Subordinate Judge for removing the defendants is that they have all along denied the title of the temple to a large portion at least of the income of the properties and that they have appropriated the income after defraying the necessary expenses of daily worship. On this point it is possible, though we do not express any definite opinion in this connection, that the defendants might have acted in good faith, for apparently the defendants' ancestors also have been acting in this way for a very long time and it would be more satisfactory if the Subordinate Judge were to enquire into all the charges made against the defendants and come to a conclusion on this question upon the result of such investigation. We, therefore, do not decide the question of the removal of the defendants and leave it to the Subordinate Judge to decide it after proper investigation.
7. As regards the accounts of the previous management the Subordinate Judge, in the circumstances, did not think it necessary to call upon the defendants to render an account of their past management. But it will be open to him to investigate such accounts, in as far as it may be necessary in coming to a conclusion upon the question as to whether the defendants should be retained in the office of trustees and, if so, under what conditions. In these circumstances, we will remit the case to the lower Court for further enquiry and for the framing of a proper scheme. The Subordinate Judge will dispose of the costs of this appeal and the memorandum of objections.