1. Both these appeals arise out of the decrees of the Sub-Court, Madura in O. S. No. 1 of 1946, wherein a preliminary decree for the framing of a scheme, after removing the appellant from ithe office of trustee was passed on 22-2-1847 and A. S. No. 319 of 1947 is preferred against that decree. Against the scheme actually framed, A. S. No. 799 of 1948 has been filed and the two appeals were heard together.
2. One Narayanaswami Naidu who died long ago created a disposition of property for the object of conducting a mandagapadi in the town of Madurai and the person who conducts it now is the first defendant, who is Narayanaswami Naidu's grandson, i.e. the son of Govindaswami Naidu, one of the sons of Narayanaswami Naidu by his second wife. The plaintiff in the lower Court is another grandson of Narayanaswami Naidu being the son of Venkatasami Naidu, the uncle of the first defendant. The other defendants are the descendants of Venkataswami Naidu. It is not necessary to set out in detail the relationship between the parties as the same is admitted and is found in the genealogical tree appended as schedule B to the scheme. The history of this trust is set out in the judgment of this Court in -- 'A. S. No. 406 of 1943 (A)'.
3. During the procession in the month of Chitrai of the Kalla Alagar Deity from the Alagar hills to the Vaigai river, there are mandagapadis conducted by various pious citizens on the route. Similarly, during the month of Vaikasi the Koodal Alagar deity is also taken in procession, and that procession also stops at various mandapams on the route where poojas are offered. These are generally known as mandagapadis. The Plaintiff''s case is that Narayanaswami Naidu created a trust of certain properties for the purpose of offering pooja when the aforesaid processions take place and the first defendant, as the present trustee of those properties, is guilty of various acts of misappropriation, malfeasance and breach of trust. It was on that footing that the suit was filed with the object of removing the first defendant from the trusteeship and for the framing of a scheme. The recitals in the plaint as to how the trust came into existence are as follows.
4. Narayanaswami Naidu, the original ancestor, being a gentleman of considerable status and of pious disposition, desired to provide a mandagapadi to receive God Sri Kalla Alagar during the Chitrai festival and Koodal Alagar during the Vaikasi festival every year. With that object he put up a stone mandapam now in existence in item 1 of the plaint schedule and constructed two shops shown as item 2 in the plaint schedule. He endowed these items for the purpose of the mandagapadi aforesaid and was conducting the man-dagapadi charity in the mandapam in item l from out of the income of items 1 and 2. The suit properties are therefore trust properties and are inalienable. They are a private family trust in which the members of the family of the founder alone are interested and have the right of management, control, supervision, etc. That this is a private trust has been confirmed by various decisions,, the last of which was in -- 'A. S. No. 406 of 1943 (A)' by this Court. The plaint proceeded to state that the first defendant has been deliberately mismanaging the trust and is guilty of misconduct and gross breach of trust.
4a. The written statement of the first defendant while admitting that mandagapadi has been earned on, denied that the properties were acquired or constructed with a view to dedicate them to any trust and that they have not been dedicated to any private trust by Narayanaswami Naidu at all and that there has been no such dedication of the entire income of the properties for the conduct of the plaint mentioned mandagapadi. The first defendant admitted that there was private worship in the mandapam in item 1 of Gods Kalla Alagar and Koodal Alagar on the two days in the year during the Chitrai festival and Vaikasi festival but stated that this private worship did not last for more than three minutes and that the amount necessary did not exceed Rs. 20 a year whereas the income from the properties would be Rs. 500 per annum. Such being the case the defence was that there was no dedication whatever. The learned trial Judge found that the defence cannot be accepted and that there is a trust created for the purpose of performing the mandagapadis. The learned Judge also found that the first defendant was guilty of breach of trust and removed him from office.
5. The question as to whether a private trust was created does not admit of any serious doubt. The previous litigations regarding these properties have ended in decisions that the trust is a private trust. In Ex. P. 5, a judgment in --'S. A. No. 281 of 1896 (B)', Subramania Ayyar and Eenson JJ. found that the property was trust property. But the more recent decision is contained, as we have stated in -- 'A. S. No. 406 of 1943 (A)'. That arose out of O. S. No. 6 of 1342 on the file of the District Court of Madurai. The Hindu Religious Endowments Board on the footing that the trust in question was a public trust, framed a scheme for the managemeaf of the trust, whereupon the first defendant filed O. S. No. 6 of 1942 on the file of the District Court Of Madura for setting aside the scheme on the ground that the properties dedicated do not constitute an endowment of a public trust. The District Judge dismissed the suit considering that the offerings made to a deity when installed in the mandapam in item I was a service connected with the temple and considered that the mandagapadi was an integral part of the temple itself as it was performed in the course of the festival.
The High Court (Leach C. J. and Clark J.) after considering the evidence in the case as well as the decisions arrived at in previous litigations, came to the conclusion that the' endowment in question is an endowment for a private trust and the public has no connection with it whatever. Though the first defendant alone, among the present parties, was involved in that litigation and the plaintiff was not a party thereto, it should be deemed as if the first defendant represented the descendants of the founder when he contested the Endowments Board and wanted a decision that the trust was a private trust. In any event according to the decision in -- 'Secretary of State v. Badsha Sahib', AIR 1921 Mad 248 (C), this judgment has abundant evidentiary value and we have to pay attention to it-It is surprising that after this decision the first defendant should have thought of contesting the character of the trust at all. Though there is no deed of trust executed by Narayanaswami Naidu it is clear from Ex. P. 1, a power of attorney executed on 3-5-1857 in favour of his son Alagiriswami by his senior wife, that his intention was to create a trust That document clearly states that he has constructed the maudapam and chat-ram on the northern side of the Vaigai river and has built and set apart two substantial terraced shops existing in Madurai east markets for the purpose of charity. It further stales that Alagiriswami, from and out of the rent amount received from the two shops and from he rent amount received from the substantial terraced house and site lying on the west of the tiled house to the east of his house, and also from out of the income-got from the garden on the west of the mandapam, should manage the mandagapadi Vagaira charity throughout the year receiving honours etc. It is also stated that he should keep the necessary utensils and other materials for the purpose of the pooja. The last sentence in Ex. p. l is clearly to the effect that a trust has been created and it is as follows:
'After I have arranged that the said charity should be conducted in common, since I think that the charity might shortly be endangered and since I believe that you being my eldest son, and honest would, in accordance with my directions, conduct and progressively improve the said charity, this power of attorney has been executed by me with consent.'
There can be no doubt whatever that the intention of Narayanaswami Naidu was to create a trust for the purpose of conducting the mandagapadi. But the argument of Mr. Rajagopala Aiyangar for the appellant is that the mandagapadi pooja which lasts only for about three minutes would cost only about Rs. 20 though the income from the property set apart according to the document is about Rs. 500 or Rs. 600. Therefore, the learned counsel contends that there has been no dedication of the entire income for this purpose. At the utmost all that could be said is that the income from the properties is charged with the duty of the performance of this mandagapadi and since there is no dedication of these properties for the trust, the suit cannot be maintained. Ex. p. 1 does not show that any part of the income should be utilised for any other purpose. It is clear that the author of the trust intended that the entire income should be utilised for the purpose of the two rnandagapadis.
According to the learned counsel for the appellant, the mandagapadi costs only about RS. 20; but the evidence in the case is the other way. P. W. l, the plaintiff deposes that during the time his father was performing the mandagapadis he used to invite relations and to spend about Rs. 600 to Rs. 700 a year. It is common knowledge that a mandagapadi does not mean only the performance of the pooja to the deity, but also includes the attendant and consequent feeding of the guests invited for the occasion and other expenses connected with the pooja. A poor man may perform a mandagapadi on a small scale but persons in affluent circumstances like the parties to these appeals would not think of conducting a manda-gapadi on a scanty and meagre scale of Rs. 20. We can take judicial notice of the fact that mandagapadis in Madura town conducted during the course of the procession of the Kalla Alagar and Koodal Alagar deities to the Vaigai river are performed by devotees in accordance with their status and position in life and the expenses would depend upon the wealth of the individual. We have no doubt whatever that the author of the trust intended the entire income to be utilised for the mandagapadi and despite Mr. Bajagopala Aiyangar's strenuous arguments that the nianda-gapadi would cost only Rs. 20 we prefer to accept the evidence of P. W. 1 and hold that the entire income from these properties has to be utilised for the performance of the mandagapadi.
6. In a recent decision reported in -- 'Vasudeva Rao v. Rangai Gounder', : AIR1952Mad650 (D), to which one of us was a party the question regarding the dedication of property where the performance of certain ceremonies was made a charge on the Income has been considered and the conclusion arrived at is that if there is no appreciable surplus income and if that surplus income has not been earmarked for any purpose, then it should be taken that the entire property has been dedicated as trust. On a reading of Ex. p. 1 coupled with the subsequent conduct of the parties and the judicial decisions evidenced by Exs. P. 5 and D. 13 we have no doubt whatever that Narayana-swami Naidu intended that the entire income from the two shops and from the bungalow should be utilised for the purpose of the mandagapadi and that these properties were dedicated in trust for the purpose of mandagapadi pooja.
7. Relying upon the observations at pages 923 and 924, paragraphs 792 and 793 of Mayne's Hindu Law that the onus of proof of dedication is on the party setting UP the trust, the learned counsel contends that the plaintiff has not discharged that onus. It seems to us that in view of the decision of this court to which great evidentiary value should be given contained in Ex. D. 13 we can have no doubt whatever that there has been a complete dedication to trust. We do not think it necessary to expatiate more upon this point as the matter has been elaborately dealt with by the learned Judge in the court below.
8. It is further contended that whatever might have been the state of the things more than 100 years ago, when the trust was created, at least so far as item 1 of the plaint schedule properties is concerned the first defendant has acquired ownership to it by adverse possession and therefore that property cannot be termed to be trust property at all. What happened was that while the trust was being conducted by Venkataswami Naidn, the father of the plaintiff, he, the piaintiff, and others, were adjudicated insolvents and item 1 of the plaint schedule was taken possession of by the Official Assignee of Madras as being the property of the insolvents; whereupon the present first defendant's brother Meenakshi Naidu, got a- release of those properties from the Official Assignee as is shown by Ex. D. 10, which is to the effect that Meenakshi Naidu entered into a guarantee with the official Assignee and thereby got a release of this property from the Official Assignee. According to the learned counsel for the appellant, Ex. D. 10 should be construed as an assignment of this item by Official Assignee in favour of Meenakshi Naidu, and from that date onwards Meenakshi Naidu remained in possession in his own right and prescribed a title against the trust. We dp not see any force in this contention because the list of properties in the insolvency as shown by Ex. P. 6(2) contains an entry that the house in the river side Madurai and the two bazars and one abkari distillery in Madurai were properties exempted under Section 52(1) of the Presidency-Towns Insolvency Act. It is therefore clear that these properties were not considered as the properties of the insolvents.
Moreover the first defendant has not produced before us the application which Meenakshi Naidu made to the Official Assignee for getting these properties released from the insolvency. Ex. D. 10 is, on the face of it, not a conveyance. It is a release of the Official Assignee's rights whatever they may be in favour of Meenakshi Naidu on the ground that Meenakshi Naidu has guaranteed the Official Assignee to indemnify him against any possible claims that may be made by the creditors. Ex. D. 10 does not at all show that the Official Assignee transferred this item absolutely to Meenakshi Naidu for any consideration whatever.
We have no hesitation at all in holding that what happened was that when properties in the possession of the insolvents which had been dedicated in trust were taken possession of by the Official Assignee as belonging to the estate of the insolvents, Meenakshi Naidu put in a claim on the footing that the ownership of these properties did not vest in the insolvents and therefore the Official Assignee has neither right nor title to them. When the Official Assignee was satisfied about the trust character of those properties, especially since in the list of the insolvents' properties this was sought to be excluded under Section 52(1) of the Presidency Towns Insolvency Act, the Official Assignee released all his rights in favour of Meenakshi Naidu and allowed him to take possession of them on a guarantee given by him. In pursuance of Ex. D. 10 when Meenakshi Naidu got into possession of item 1, it cannot be said that his possession was in any other capacity except that of a lawful trustee and if that is so there is no animus to possess it adversely to the trust. When a person enters into trust property in the capacity of a trustee lawfully he cannot prescribe against the trust and in our view Exs. P. 6(a) and D. 10 show clearly that the origin of the possession of Meenakshi Naidu was for and on behalf of the trust. Such being the case we feel that no question of adverse possession arises.
Though there was no clear and specific issue on this point regarding the acquisition of title by adverse possession, Mr. Rajagopala Alyangar contended that certain passages in the learned Judge's judgment afforded material for him to contend that the point was taken in the court below. Whether it is correct or- not, we feel that the argument to the effect that under Ex. D. 10 Meenakshi Naidu got ah absolute title to item 1 is not entitled to any weight whatever. This 'Dntention therefore fails.
9. The only other point which remains for consideration is one which arose during the course of the arguments, viz., whether a suit for removing a trustee of a private trust and for the framing of a scheme is maintainable. There is no doubt that Section 92, Civil P. C. in terms does not apply because that relates specifically and definitely to the case of public trusts. There are no provisions in the Indian Trusts Act for the framing of a scheme and that Act does not apply to private religious endowments. The distinction between a public trust and a private trust is not so clearly marked In England as in India. At page 11 of Tudor on Charities, 5th Edition, we find the following statement:
'ln the first place It may be laid down as a universal rule that the law recognises no purpose as charitable unless it is of a public character. That is to say, a purpose must, in order to be charitable, be directed to the benefit of the community or a section of the community.''
At page ISO, the learned author observes:
'The charitable jurisdiction of the Court does not arise where the gift is not charitable in the legal sense as where it is for private charity.'
This rule is based upon the doctrine of the rule against perpetuities.
We find in Halsbury's Laws of England, Volume 4, 2nd Edition, at pages 346 and 347 that at present in England there is general jurisdiction to enforce trusts. That is to say, the High Court has jurisdiction to enforce the observance or redress breaches of all trusts, charitable as well as private. The jurisdiction in the case of charities is more extensive than in the case of private trusts. At page 347, the learned author observes:
'After some conflict of judicial opinions the rule is now established that, wherever there is a gift to charity and the donor either created or intended to create a trust, whether the objects are specified or indefinite, the court has jurisdiction to enforce the execution of the trust, and, if necessary, to apply the gift to charitable purposes by means of a scheme.'
The earlier law in England can be gathered from the decision of -- 'Ommaney v. Butcher', (1823) Turn & R 260: 37 E R 1098 (E). In delivering the Judgment of the Court the Master of the Rolls observed as follows at page 1102,
'There is no case in which private charity has been made the subject of disposal in the Crown, or been acted upon by this court. The charities recognised by this court are public in their nature, they are such as the court can see to the execution of. In this case the difference is obvious; if a party is to execute the purpose of this testator he cannot give to public charities; the disposition must be confined to private charity. In what respect does private charity differ from benevolence?'
10. There used to be some divergence of opinion so far as the Indian Courts are concerned but it seems to us that the more prevalent and satisfactory view is that even in the case of private charities courts can interfere to see that no breaches of trust are created. So far as the members of the family are concerned, who are interested in the trust, if the trustee for the time being mismanages or acts in breach of trust, it is a civil right which is infringed and under Section 9, Civil p. C. they are entitled to seek redress in court for the purpose of remedying the mischief. In -- Gopallal Sett v. Puma Chandra', AIR 1932 PC 253 (P), the Judicial Committee had to consider the case of a private trust created by means of a Will which specified the person to conduct the trust and charged him with maintenance of the worship but which did not create any heritable shebaitship. In dealing with that aspect. Lord Buekmaster held that the court had power to appoint a trustee. At page 256 the following observation occurs:
'Their Lordships see no reason to doubt that the court executing the duty of appointing trustees would pay due regard to the claims of that branch of the family with whom the worship was established and by whom the services were performed, but they regard the gift as in effect a private trust to which the provisions of Section 539, Civil Procedure Code, 1882 would not apply, and consequently the establishment of a scheme for its 1953 Mad/95 & 96 administration, as provided by the decree of the High Court, is 'inappropriate'.'
This sentence is very much relied upon by the learned counsel for the appellant for Justifying his contention that in the case of a private trust no scheme can be framed at all.
In -- pramathanath v. Pradyumna Kumar', (G), where also the question related to a private trust, their lordships held that the idol, in a matter where the rival shebaits were agitating their claims, should be represented by a disinterested guardian and remanded the appeal for that purpose to the lower court with this observation at page 145:
'Their Lordships are accordingly of opinion that it would be in the interests of all concerned that the idol should appear by a disinterested next friend appointed by the court. The female members of the family should also be joined, and a 'scheme should be framed', for the regulation of the worship of the idols.'
It would seem at first sight that the observations in the two decisions run counter to each other. The matter was discussed at some length in --'Bimal Krishna v. Jnanedra Krishna : AIR1937Cal338 . B.K. Mukherjea J. in delivering the judgment of the court notes the conflict and refers not only to these two decisions but also to another decision by Sir Asutosh Mookerjee J. in -- -Manohar v. Peary Mohan', AIR 1920 Cal 210 (I). He distinguished the case in -- AIR 1922 PC 253 (F)' in the following manner;
'In a case like this, where a private trust was created not of a purely religious character and the ownership of the property was vested in the trustee in the legal sense of the word, the court could not possibly frame a scheme for the administration of the trust estate. In religious endowment, however, where the deity who is a perpetual infant is the legal owner of the property and the shebaits occupy the position of managers or guardians, the position is different.'
Then the learned Judge discusses the observations of Sir Asutosh Mookerjee J, in -- AIR 1920 Cal 210 (I)'. It would seem from this judgment that if the trust is a private one and not purely of a religious character and the ownership of the property is vested in the trustee, then the court cannot interfere. But this distinction is not supported by any authority.
On the other hand in -- 'Rabindranath v. Chandl Charan : AIR1932Cal117 , Mullick and Guha JJ. have held that civil courts have jurisdiction to entertain a suit brought by the heirs of the founders of a private debuttar trust, for the framing of the scheme, for the preservation and management of the debuttar estate, on the allegation of mismanagement and maladministration. The learned Judges rely upon the decision of Sir Asutosh Mukherjee J. in -- 'AIR 1920 Cal 210 (I)'.
We are not able to appreciate the distinction which B. K. Mukherjea J. seeks to bring out in : AIR1937Cal338 '. No such distinction was nought to be made out by Sir Asutosh Mookerjee J. in -- AIR 1920 Cal 210 (I)'. In -- 'Prasaddas Pal v. Jagannath Pal : AIR1933Cal519 which was also a case of private trust, the court gave certain directions for the framing of scheme. In all these cases, the trust was a private one and was purely of a religious character as in the present case. The case in -- 'Sathapayyar v. Peria-sami', 14 Mad 1 (L) also related to a private trust. That was referred to by Sir Asutosh Mookerjee J. in -- AIR 1920 Cal 210 (I)' at page 215 of the report. Even if the observations of the learned Judge B.K, Mukherjea J. can be accepted, still the trust in the present case is purely of a religious character though the ownership of the property is not vested in the idol. There are no Madras cases expressing an opinion either way though the case in -- 14 Mad 1 (W related to a mutt and the learned Judges held that sanction under B. 539, C. P. C. (Section 92 of the present C. P. C.) was not a prerequisite for the purpose of filing the suit. In our view the correct position is that even in the case of private trusts it is open to any member of the trustee's family where his rights are impugned to seek redress in courts of law. The public or the intended beneficiaries have no manner of right at all. It seems strange that on a subject like this, there are no direct decisions of our court; at any rate no decision has been brought to our notice and even in -- AIR 1920 Cal 210 (I)' only a receiver was appointed and no scheme was framed. In partition suits in Joint Hindu families provisions are generally made for the conduct of family charities, but in those cases, such trusts form the subject matter of the suit and the suit would not be for framing a scheme simpliciter. Either in principle or in precedent do we find any justification for refusing to frame a scheme in the matter of a private trust. Therefore, the objection regarding the maintainability of the suit fails.
11. The only other point that needs consideration relates to the details of the scheme which form the subject matter of A. S. No. 799 of 1948. The learned counsel for the appellant contends that so far as trusteeship is concerned, an age limit should be fixed because under the Hindu Religious Endowments Act the age of 70 is fixed for a trustee. We do not find any justification for fixing an age In the case of a private trust like this where properties are not considerable and where the management does not involve any strenuous exertion at all. With regard to the other details of the scheme we have perused them and find nothing to which objection can be taken. The scheme is just and equitable and must be confirmed.
12. The appeals therefore fail and are dismissedwith costs of plaintiff (first respondent) one setonly.