M. Natesan, J.
1. This appeal has been placed before the Full Bench as the substantial question that calls for examination is the correctness of the view expressed by a Division Bench of this Court in Munahmnainatha Desikar v. Gopala I.L.R.(1943) Mad. 858 : (1943) 1 M.L.J. 434 about the applicability of the rule in Juttendramohun Tagore v. Ganendromohun Tagore (1872) 9 Beng. L.R. 377 : L.R. (1872) IndAp 47 to the office of manager of a South Indian temple under a scheme of succession settled by the founder. The very scheme of succession and right to management of the properties of the temple now in question was the subject-matter of adjudication in Manathunainatha Desikar v. Gopala (1943) 1 M.L.J. 434 : I.L.R.(1943) Mad. 858 and this aspect has given rise to a question of res judicata for consideration.
2. The suit, the decree wherein in favour of the plaintiff has given rise to this appeal by the first defendant, is for a declaration that the first defendant is not entitled to be a joint trustee along with the plaintiff and defendants 2 and 3, of the temple to which the suit properties belong. The first defendant's right to be in possession of the suit properties as joint trustee is questioned and an injunction restraining the first defendant from collecting rents and profits thereof or other-wise interfering with the properties is prayed for. The suit properties nanja punja and jari monai of an extent of 106 acres and 33 1|2 cents situate in the village of Mappalam in Nannilam Taluk, East Tanjore District--admittedly endowed, belong to Sri Viswalinga Vaitheeswaraswami, a deity of the Hindu) Pantheon, whose temple is located at Jaffna, Ceylon. The temple was founded by one Vaithilinga Chettiar, a remote ancestor of the parties, in or about the year 1790, and it owns extensive properties in Jaffna, besides the suit properties. The founder Vaithilinga died in or about 1828. Under his will dated 20th April, 1805, of which Exhibit A-1 is registration copy, he prescribed a scheme for the due administration and management of the temple and its properties and the charities he founded. Briefly stated the will prescribes the devolution of the right of management (office of Vicharanai Kartha) after his death, first on his two sons, Gopala Chettiar and Kandappa Chettiar for their lives, and after them upon his male descendants in the male and female lines. The will drafted in old Tamil and the syntax is rather; loose; but the intention of the testator and the terms of the foundation prescribed, are manifest and not difficult of ascertainment. The provisions regarding the management of the institution are found in two places in the testament. In the first portion, properly translated, the following are enjoined to perform the trusts; sons Gopala Chettiar and Kandappa Chettiar, in their male and female line, their descendants one generation of sons to another generation as long as Vankeesa Gothram lasts. Again, at the close of the will, the provision for continuous management is indicated requiring that the sons and their descendants in the male and female lines shall manage for long without fail. The Tamil words used are:
The word means lineage, descent or family. Though the word used in the instrument can indicate both male and female children, from the testator's use of it while referring to the testator's sons Gopala Chettiar and Kandappa Chettiar and use of the expressions it is clear that the founder means by the expression male descendants and was providing for management by his male descendants. Directing that the trust shall be performed with all religious zeal and bakthi, the testator expresses his intention that the divine grace earned in the family should be retained in the family and shared by his descendants in the male and female lines. The words 'from one-generation of male descendants to another' indicate that in any line the nearer would exclude the remote. But, as there is recognition of equal and simultaneous rights in both classes of defendantsi in the male and female lines, it is also clear that the nearer in degree in one line do not exclude the more remote in another line.
3. The pedigree annexed shows the members of the family and their descent from the founder Vaithilinga Chettiar and the parties with their ranks in the former suit and in the present suit. The appellant herein, the plaintiff in the former suit and the only contesting defendant in the present suit. No. 17 in the pedigree, is a grandson of Manathunainatha, No. 14 in the pedigree. While No. 14 is the great grandson in the male line of Gopala Chettiar the founder's son, he went out of the line by adoption into the family of one Kandaswami Desikar. But Kandaswami Desikar was married to Kanagarathnam, Gopala Chettiar's son's daughter. The appellant by the adoption became a descendant in the female line of the founder. Claiming his rights to the joint management of the endowments under the will, he filed the suit O.S. No. 20 of 1938 on the file of the Subordinate Judge's Court, Mayuram, against Gopala Chettiar No. 19, Nagarathnathachi, No. 21, the widow of No. 18 a deceased brother of Gopala Chettiar, Thangathammal No. 22, widow of another brother No. 20 of Gopala Chettiar, Ponnuswami Chettiar No. 29, and Vaithilinga Chettiar No. 30. Of course, Gopala Chettiar No. 19, Ponnuswami Chettiar No. 29 and Vaithilinga Chettiar No. 30 were male descendants of the founder and unquestionably entitled to the management of the trust. The present plaintiff and defendants 2 and 3 are the sons of this Vaithilinga Chettiar. The appellant charged Gopala Chettiar, Ponnuswami Chettiar and Vaithilinga Chettiar who were impleaded as defendants! 1, 4 and 5 in that suit, as setting up exclusive title in themselves for possession and management of the suit temple and its endowment in derogation of his right to joint trusteeship with them. He prayed for an injunction restraining them from interfering with his joint possession of the endowed properties, the present suit properties. The learned Subordinate Judge taking the view that it was the intention of the testator that the succession to the office should follow the line of succession to the property of the family, but subject to the qualification that the nearer in degree excluded the more remote, disallowed the plaintiff's claim to trusteeship, on the ground of his grandfather having been adopted away from the family and on the ground that he was lower in descent than the contesting defendants 1 and 5 in that suit.
4. Aggrieved by the decision of the Sub-Court, the plaintiff brought up the matter to this Court in appeal A.S. No. 387 of 1940. It is the decision therein that is reported as Manathunainatha Desikar v. Gopala (1943) 1 M.L.J. 434 : I.L.R. (1943) Mad. 858. Pending that appeal, the 5th defendant Vaithilinga Chettiar died in October, 1940 and in his place his widow Kannammal and his two minor sons Kandappa No. 43 and Muthu Kayarohanan No. 44, present defendants 2 and 3, were brought on record as legal representatives on 21st April, 1941. The present plaintiff is the posthumous child of his father, born on 5th December, 1940, and he was not impleaded as a party respondent in that appeal. His brothers were represented by their maternal uncle as guardian ad litem. On the appeal, this Court upheld the plaintiff's right to joint possession of the office of trusteeship and of trust properties, while holding that it must be taken as settled that Shebaiti office equally with the hereditary office of manager of a South Indian temple is a species of property to which the restrictions enunciated in Tagore v. Tagore (1872) I.A. 47 : 9 Beng. L.R. 377 are applicable. The scheme of management, by which the office of trusteeship was conferred by the founder on his descendants both in the male and female lines, was held valid, distinguishing the scheme of succession as one where each succeeding trustee took office not as the heir of his predecessor but pro formam doni, as a direct nominee under the rules of succession laid down by the founder. Pursuant to the decree that followed the decision of this Court, the present appellant took joint possession of the office and the trust properties sometimes in January, 1943.
5. The suit out of which the present appeal arises, was instituted by the plaintiff on 29th August, 1960, within three years of his attaining majority. Impugning the correctness of the former decision, the plaintiff claims that he and defendants 2 and 3 are alone the rightful trustees of the suit temple and its properties as the heirs of the founder. According to the plaintiff, as the will of the founder conferred trusteeship on his descendants both in the male and female lines contrary to the ordinary rules of the Hindu Law of Inheritance, it was invalid and ineffective to vary the course of succession. The trial Court has overruled the plea of res judicata raised in bar to the maintainability of the suit on the ground that the plaintiff was not eo nomine a party to the former suit. So far as defendants 2 and 3 are concerned, as persons who were parties to the former suit, whether the former decision is right or wrong, they are held bound by the decision. As regards the former decision of this Court on the merits upholding the validity of the scheme of succession provided by the founder, the learned Subordinate Judge has taken the view that he was constrained to hold that the present appellant has no legal right to be co-trustee of the suit temple and its properties 'in view of the development of law regarding the construction of office of trusteeship being property'. Holding that the plaintiff and defendants 2 and 3 are the descendants of the founder in the male line entitled to the office of trusteeship, the suit has been decreed as prayed for.
6. The two questions that call for consideration in this appeal are (1) whether the restrictions laid down in Tagore v. Tagore L.R. (1872) IndAp 47 : 9 Beng. L.R. 377 are applicable to the office of trusteeship now under consideration and (2) whether the plaintiff is barred from agitating the question in view of the prior decision on the matter. There has been very little discussion before us about the true construction of the will, and arguments proceeded on the basis that the will lays down a line of succession inconsistent with the general law of inheritance. There was no contention before us that the will should be construed as intended to create a known estate of inheritance. A doubt certainly arises by the reference to continuance of the charities by the descendants in the male and female lines as; long as Vangeesha Gothram lasts. If the managership goes to cognates also, the Gothram would change. May be the testator meant, as long as his descendants, whether in the male or female line, are there to carry on the office. Any way this doubt need not deter us, since it has not been contended before us for the plaintiff that the will according to its terms does not provide for simultaneous succession by the descendants in both male and female lines. In fact, the plaintiff has come to Court with the specific case that the will confers trusteeship on the descendants in the female line also. There is no question about the validity of the endowments itself or of the dedication of the properties for the benefit of the deity. Hindu diety from ancient times has found expression in gifts to idols and images consecrated and installed in temples, to religious institutions of every kind and for all purposes considered meritorious in the Hindu social and religious system. Under the Hindu law the deity is considered a juristic entity vested with the capacity of receiving gifts and holding property. Equally, religious institutions under different names are regarded as juristic entities capable of being the objects of gifts and holding them. When the dedication of property is made to the idol, the property vests in a juristic person. But ex necessitate rei the administration of the property and the affairs of the deity or institution has to be in a natural person. The person thus in charge is variously referred to in these parts as manager, Dharmakartha, Vicharanaikartha, Uralars, Adikari or Huqdar also loosely as trustee. In this case, the claimants to the trusteeship have no beneficial interest in the properties of the endowment. No perquisites or emoluments are claimed as attached to the office as such. If the devolution of such an office provided for by the founder is hit by the rule in Tagore v. Tagore L.R. (1872) IndAp 47 : 9 Beng. L R. 377 there is no doubt that appellant's case has to fail on the merits.
7. In Tagore v. Tagore L.R. (1872) IndAp 47 : 9 Beng. L R. 377 the principle against creation of estates and rules of inheritance unknown to Hindu Law by gifts and wills grounded on public policy was enunciated by their Lordships of the Judicial Committee thus : at page's 64-65:
The power of parting with property once acquired, so as to confer the same property upon another, must take effect either by inheritance or transfer, each according to law.
Inheritance does not depend upon the will of the individual owner; transfer does. Inheritance is a rule laid down (or in the case of custom recognised)' by the State, not merely for the benefit of individuals, but for reasons of public policy.
It follows directly from this that a private individual, who attempts by gift or will to make property inheritable otherwise than the law directs, is assuming to legislate, and that the gift must fail, and the inheritance take place as the law directs. This was well expressed by Lord Justice Turner in Soorjomonee Dossee v. Denobundoo Mullick (1854) 6 M.I.A 555. 'A man cannot create a new from of estate or alter the line of succession allowed by law, for the purpose of carrying out his own wishes or views of policy.
Their Lordships laid down another principle that a person who takes under a gift or will either in fact or in contemplation of law should be in existence at the time when the gift or bequest is to take effect and the estate to be taken must be one recognised by law. This later rule prohibiting gifts to unborn persons has been modified statutorily and we are not concerned with the statutory modification. The Tagore case L.R. (1872-73) IndAp 47 : 9 Beng. L R. 377 was concerned with the right of succession to private properties, the will containing limitations in favour of persons unborn at the time of the death of the testator and the limitations describing an inheritance in tail which their Lordships have referred to as novel mode of inheritance inconsistent with Hindu Law. Manifestly, the rule in Tagore case L.R. (1872) IndAp 47 : 9 Beng. L R. 377 applies to-parting with property once acquired which has to be by transfer or inheritance. The Judicial Committee since laid down that the ruling in Tagore case L.R. (1872) IndAp 47 : 9 Beng. L R. 377 that all estates of inheritance created by gift or will in so far as they are inconsistent with the general law of inheritance are void, is applicable to an hereditary office and endowment as well as to other immoveable properties--See Gnanasambanda Pandara Sannadhi v. Vellu Pandaram I.L. R.(1900) Mad. 271 : 1900 L R. 27 IndAp 69 : 1900 10 M.L.J. 29 and Ganesh Chunder Dhur v. Lal Behary Dhur (1936) 71 M.L J. 740 : L.R. 63 I.A 448. In Tagore Case L.R. (1872) IndAp 47 : 9 Beng. L R. 377 while enunciating the principle in general terms, the Judicial Committee did not rule out the possibility of exceptions to the rule. They pointed out:
Their Lordships, adopting and acting upon the clear general principle of Hindu Law that donee must be in existence, desire not to express any opinion as to certain exceptional cases of provisions by way of contract or of conditional gift or marriage or, other family provision, for which authority may be found in Hindu Law or usage.
In Collector of Madurai v. Moottoo Ramalinga Sethuputhi (1867) 12 M.I.A. 397 their Lordships laid down:
Under the Hindu system of law, clear proof of usage will outweigh the written text of the law.
In Shibaprasad Singh v. Prayagkumari Debee (l932) I.L R 59 Cal. 1399 (P.C.) : 1932 63 M.L J. 196 : L.R. 59 I.A 331 the Judicial Committee said:
A Hindu family, no doubt, cannot by agreement between its members, make a custom for itself of succession to family property at variance with the ordinary law. But, where a family is found to have been governed as to its property by a customary rule of succession different from that of the ordinary law, that custom is itself law. The rule of succession in such a case is recognised by the State as part of the law of the family, though it is no more than the result of a course of conduct of individual subjects of the State constituting the family.
No arguments based on usage or custom were addressed before us and the matter has to be considered without reference to any custom or usage as such. We have, therefore, to examine whether the scheme for administration of the endowment provided by the founder, involves creation of a new form of estate in property, and whether the office of Dharmakartha provided for under the scheme is property. If it is not property by itself, does the scheme provide for devolution with reference to an hereditary office? As the prohibition is against creation of estates and rules of inheritance unknown to Hindu Law, the question whether the office is property has to be considered according to the principles of Hindu Law. In Tagore v. Tagore (1872) L.R. IndAp 47 : 9 Beng. L.R. 377 their Lordships prefaced their inquiry with the observation : 'The questions presented by this case must be dealt with and decided according to the Hindu Law prevailing in Bengal, to which alone the property in question is subject'. But they pointed out that, whilst rules of detail prevailing in England are to be laid aside, there are general principles affecting the transfer of property which must prevail wherever law exists, and to which resort must be had in deciding several questions of an elementary character, and as to which there is no precise authority. We also may have to draw here on certain general principles.
8. We shall first take up for consideration the character of the office of Dharmakartha of a temple with which this case is concerned. There is considerable difference between the position and functions of the Dharmakartha whose duties are secular on the one hand and Poojaries, Archakas, Mahants Heads of Mutts and Shebaits of North India on the other. The Dharmakartha is a mere manager; his liability will be that of a trustee, but he holds an office. The office may be held by a single member, or by a number of persons, or by a family or by a number of families. At places the superintendence of the village temple is found vested in the entire village community. In Vidyapurna Thirthaswami v. Vidyanidhi Tirthaswami I.L.R.(1904) Mad. 435 : 14 M.L.J. 105. Subramania Ayyar. Officiating Chief Justice; adverting to the legal position of Dharmakartha. of a temple, observed:
In the case of temples, the ideal person being the idol itself, the natural custodian of the property, who has no beneficial interest whatsoever in the endowments, but occupies the fiduciary position of a mere manager may not improperly be looked upon as subject strictly to the liabilities of a trustee.
In the same case, Bashyam Ayyangar, J., said:
The two classes of institutions, viz., temples and mutts, are thus supplementary in the Hindu Ecclesiastical system, both conducing to spiritual welfare, the one by affording opportunities for prayer and worship, the other by facilitating spiritual instruction and the acquisition of religious knowledge--the presiding element being the deity or idol in the one, the learned and pious ascetic in the other...in the case of temples, the endowments, whether in the shape of landed property or tasdik allowances, have to be devoted to the carrying out of the specific purposes connected with the temple, i e., the daily worship and the periodical ceremonies and festival--purposes defined and settled by usage and custom and generally recorded in what is known as the 'dittam'--and the Dharmakarthas are mere trustees for the carrying out or executing of, such trusts.
Again, in Ramanathan Chetti v. Murugappa Chettti , the Judicial Committee observed:
The manager of the temple is by virtue of his office the administrator of the property attached to it. As regards the property the manager is in the position of a trustee. But as regards the service of the temple and the duties that appertain to it, he is rather in the position of the holder of an office or dignity which may have been originally conferred on a single individual, but which, in course of time, has become vested by descent in more than one person.
In that case the temple was a Hindu temple dedicated for public! worship, and the office of the manager of the temple was hereditary in the family of the parties. But the family had no beneficial interest in the property or income from the temple. In Srinivasachariar v. Evalappa Mudaliar , it is stated by Lord Shaw:
It is of importance to observe that Varadappa is named and names himself the Dharmakartha. This is in truth the legal equipollent to trustee. The position of Dharmakartha is not that of a shebait of a religious institution, or of the head of a mutt. These functionaries have much a higher right with larger power of disposal and administration, and they have a personal interest of a beneficial character.
In the very learned judgment delivered in Vidyapurna Thirthaswamy v. Vidyanidhi Tirthaswami I.L.R.(1904) Mad. 435 : 14 M.L.J 105, the distinction between these functionaries is explained. But a dharmakartha is literally and no more than the manager of a charity, and his right, apart from it may be in certain circumstances from the question of personal support, are never in a higher legal category than that of a mere trustee.
In the instant case there is no question of any personal support claimed front the endowment. The Dharmakartha's services with reference to a temple and its properties are just a bundle of duties and obligations. In relation to the endowment, he is the holder of an honorary office with duties to discharge. A pious Hindu may accept the trusteeship though! no material benefit is Involved, as the office carries religious merit to himself, his ancestors and progeny. The office may carry some prestige and the Dharmakartha may receive honours. But such honours are not perquisites attached as such to the office : they are mere marks of respect commonly shown to visiting dignitaries. Referring to honours shown or precedents given to religious dignitaries without other religious ceremonies in a temple, Subba Rao, J., (as he then was) observed in Sinha Ramanuja v. Ranga Ramanuja : 2SCR509 thus:
Even if theertham is given or other honours are shown in a particular order to a person holding an office, it does not necessarily follow that the said honours are part of the remuneration attached to the office; but it is a question of fact to be ascertained on the evidence whether the said honours are attached to the office as part if its perquisites in the sense that they have become an integral part of the ritual to be performed by the recipient as the office holder or are only shown to him as a mark of respect on the occasion of his visit to the temple.
The learned Judge quotes with approval certain observations of Sadasiva Aiyar, J., in Athart Sadagopacharar Swamigal v. Elayavalli Srinivasachariar (1913) M.W.N. 289 which are relevant in this context. The learned Judge says:.the next question of law is whether such honours to be shown in the presence of God can be legally attached to the office as emoluments. In other words, can honours be legally claimed by anybody as receivable by him in a temple? When a trustee chooses to parade the temple elephants and dancing girls before a high official or any other person and gives him prasadams, etc., he does it in order to show 'honours' to that person and when he does it without prejudice to the conduct of the rituals and ceremonies in the temple, he always says that the God of the temple Himself condescends to treat the official or other persons as God's guest and shows him these 'honours'. Such persons to whom respect is shown cannot in my opinion claim such 'honours' as a legal right, but as a favour shown by the temple deity. Such honours in the strict eye of the Sastras cannot be called honours at all but as doles condescendingly given by the temple deity as a 'favour'.
Such being the true character of the office of Dharmakartha, we shall next consider whether the office has any element of property and could be regarded as property in the Hindu sense of the term as to attract Tagore Case L.R. (1872) IndAp 47 : 9 Beng. L.R. 377.
9. Hindu Law recognises ownership in movables and immoveables. Macnaughten in his Principles of Hindu Law, at page 1, says:
Property according to the Hindu Law is of four descriptions; real, personal, ancestral and acquired. I use the terms real and personal in preference to the terms movable and immoveable, because, although the latter words would furnish a mere strict translation of the. expressions in the original, yet the Hindu, classes amongst things immoveable, property which is of an opposite nature, such as slaves and corrodies, or assignments on land.
10. The distinction between moveables and immoveables that may be seen in the Mitakshara is stated thus in Mayne's Hindu Law, 11th Edition, at page 318 : 'The father is master of gems, pearls, corals, and of all other (moveable property), But neither the father nor the grandfather is of the whole immovable estate'. Referring to ownership in property, we have the text of Yajnavalkya quoted in Mitakshara, Chapter I, Section 5, para. 3 : 'The ownership of father and son is the same in the land which was acquired by the grandfather or in a corrody or in a chattel which belonged to him. 'The office in question cannot be considered as land or chattel. Is it corrody? The three words used by Yajnavalkya for land, corrody and chattel are respectively Bhu, Nibandha and Dravya. Sir Thomas Strange classes dues of an hereditary office with Nibandha, corrodies (Hindu Law, Vol. I, page 210). Wilson's Glossary describes Nibandha thus : 'In law, fixed or immoveable property; also a corrody or fixed allowance granted by the Rajah or person in authority, to be received from the proceeds of a manufactory, mine, or estate'. Krishnaswamy Iyer's translation of the Smriti Chandrika, 2nd Edition, at page 98, gives the following illustration of Nibandha : (1) What is fixed by a promise in this form 'I will give that in every month of Kartiky'--Jimuthavahana, Chapter II, para. 13 : (2) Anything which has been promised, deliverable annually or monthly, or at any other fixed periods--Srikrishna : (3) A fixed amount granted by the king or other authority receivable from a mine or similar fund-Kalpataru : (4) So many leaves receivable from a plantation of betel, pepper, or so many nuts from an orchard of areca--Mitakshara Chapter I, Section 6, para. 4 : (5) A fixed pension receivable out of mines or the like and settled on him and his heirs by the King or other benefactor--II Digest, page 258. The learned editor gives the following translation of the word Nibandha : 'A corrody signifies a permanent allowance received from saleable articles, in virtue of an agreement or promise'. In Maharana Futtehsangji Jawat Sangji v. Dessai Kallianraiji Hekoomutraiji referring to the translation of the word Nibandha as corrody in English, the Judicial Committee remarked that they would prefer to use the Sanskrit word, inasmuch! as they do not think that ''corrody' is a very happy translation of it, 'corrody' being a word of medieval origin properly signifying a peculiar right, viz., the grant by the royal or other founder of an abbey of certain allowances out of the revenues- of the abbey in favour of a dependent or servant. Illustrations of its use under the Hindu system of law are found in the judgment of the Full Bench of the Bombay High Court in Balvantray v. Purushotam Sidneshvar (1872) 9 Bom. H.C.R. 99 and they show that the term is applied in its largest sense to any fixed or permanent allowance or payment or 'to a gift of thing assigned upon a fund'. The case related to fees payable to the incumbent of the hereditary office of village joshi (astrologer). A reference to the Full Bench judgment shows; that Nibandha of some description at least was considered as ranking with immoveables in all questions of ownership, inheritance and partition. In Krishnabhat B n Hiragange v. Kapa Bhat (1869) 6 Bom HCR 137 a question of limitation arose with reference to the office of hereditary priest of a temple. Though not annexed to or held by virtue of the ownership of any land, it was classed as immoveable property for the purpose of the Limitation Act. In the course of his judgment, Couch, C.J. said:
In Elberling on Inheritance, Section 206, it is said that the right of per-forming the religious ceremonies of certain classes of people as Purohit, is by custom considered analogous to real property; and in Strange Hindu Law, Vol. II, 363 Mr. Colebrook says that if an office in a family be hereditary, the dues or profits appertaining to it must be subject to be shared; but in such case it classes with immoveables.
The important of this observation is that, in classing heriditary office as immovable, the office is referred to as one which carries with it some emoluments., Colebrooke in his Digest, Vol. I, page 375, Madras Edn. 1863, describes the position of Purohits and Agraharica priests and says that they are considered hereditary offices; while Elberling on Inheritance points out at page 96 that by custom these offices are considered analogous to real property. In the Government of Bombay v. Goava Mi Shri Girdharilalji (1872) 9 Bom H C R 222 citing passages from Strange and Macnaughten, It is said:
These passages may perhaps tend to show that certain allowances not secured upon land may, for purposes of descent, he included in term 'Corrody' and rank with immovable property.
In Maharana's case the Privy Council referring to Balvantrav v. Purshotam Sidheshwar (1872) 9 Bom. H.C.R. 99 observed:
The statement their Lordships conceive must be taken to import that the right to hold the office was matter of contest between the parties; since it can hardly have been held that, because the hereditary office was, in contemplation of the Hindu Law, of the nature of immoveable property, fees recoverable by the admitted holder of the office from persons whose horoscope he might have cast, fell within the same category....It fully upheld the decision in Krishnabhat v. Kapabhat (1869) 6 Bom.H.C.R. 137 and affirmed the correctness of the rule there laid down....The rule is shortly this, viz., that inasmuch as the term 'immoveable property' is not defined by the Act (Limitation Act of 1859), it must, when the question concerns the right of Hindus, be taken to include whatever the Hindu Law classes as immoveable, although not such in the ordinary acceptation of the word. To the application of this rule within proper limits, their Lordships see no objection.! The question must, in every case, be whether the subject of the suit is in the nature of immoveable property, or of an interest in immoveable property; and if its nature and quality can be only determined by Hindu Law and usage, the Hindu Law may properly be included for that purpose. Thus, in the two cases on which the appellant relies, Hindu texts were legitimately used to show that, in the contemplation of Hindu law hereditary offices in a Hindu community incapable of being held by any person not a Hindu, were in the nature of immoveables.
Their Lordships doubted whether the toda jiras right there in question would be 'Nibandha' within the strict sense of the terms. Holding that the question whether toda, jiras hug (right to certain customary annual payments) is immoveable property within the meaning of the Limitation Act (XIV of 1859) is one which ought not to be determined by Hindu Law, they proceeded to consider its character upon the general construction to be given to immoveable property, and interest in immoveable property as used by the Indian Legislature. In Collector of Thana v. Krishnanath Govind I.L.R.(1880) 5 Bom 322 referring to the aforesaid decision of the Judicial Committee, one of the learned Judges observed with reference to Nibandha that it is the fixed and permanent character of the allowance, from whatever source derived, which entitles it by Hindu Law to rank with immoveables. When there is no question of any perquisites or allowance being attached to the office of Dharmakartha, it cannot fall under any of the classifications of property above set out. If it is an hereditary office and some emoluments are attached to it, it may be 'nibandha'. Under the general law it is difficult to term a bundle of duties and obligations as property in its widest sense. A definition of property, particularly immoveable property, is very difficult and what is property in one sense or for one purpose may not be so in another situation., Both Bentham in his Theory of Legislation and Cooly in his Constitutional Law appear to favour the description that 'whatever a man produces by the labour of his hand or brain, whatever he obtains in exchange for something of his own, and whatever is given to him, the law will protect him in the use, enjoyment and disposition of', as having the attributes of property. Property is incorporeal, if any right in the bundle of rights constituting such property satisfies the test of acquisition, holding and disposal separately from the corpus. In his book on Jurisprudence, 12th Edition at page 108, Salmond has this to say about proprietary rights:
In a second and narrower sense, property includes not all a person's rights, but only his proprietary as opposed to his personal rights. The former constitute his estate or property, while the latter constitute his status or personal condition. In this sense a man's land, chattels, shares, and the debts due to him are his property; but not his life or liberty or reputation.
Bentham in his Theory of Legislation, Vol. I, at page 143, puts it thus:
Property is nothing more than the basis of a certain expectation; namely, the expectation of deriving hereafter certain advantage from a thing (which we already said to possess) by reason of the relation in which we stand towards it.
If we regard the Dharmakartha purely as in the position of manager of the estate of an infant heir, we may aptly refer to the following definition of Black-stone with reference to property : 'The inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior.' We have not heard it said that guardianship is property.
11. In Umayal Achi v. Lakshmi Achi , Varadachariar, J., held that the Hindu Women's Right to Property Act was intended to apply only to property beneficially owned by the propositus and not to anything in the nature of a trusteeship. The widow claimed right to succeed to the trusteeship held by the deceased individually or jointly with others in respect of numerous religious and charitable trusts, In Angurbala v. Debabrata : 2SCR1125 , where a widow's right to shebaitship as property under the Hindu Women's Right to Property Act arose for consideration, Mukher-jee, J. (as he then was) pointed out the peculiarities of shebaiti rights where even though no emoluments are attached to the office of shebaitship, he enjoys some sort of right or interest in the endowed property, which beneficial interest hast at least the character of proprietary rights. While holding that the Act in question would apply to shebaitship as a recognised form of property under Hindu Law, the decision in Umayal Achi's case , was distinguished with the observations:
The learned Judge (Varadachariar, J.) observed himself in his judgment that there was, little or no evidence as to the terms of the foundations in respect of any of the trusts 'managed' by the deceased. This observation, taken along with the terms of the document referred to in the judgment, would go to show that the deceased was a mere manager of the trusts : and in respect of some of them at least he was the manager jointly with other persons....At any rate we have no materials to hold that in regard to the trusts that formed the subject-matter of that suit the trustees had any beneficial or personal interest in the trust properties.
12. The question whether the hereditary right to manage a temple is property under Article 19 (1) (j) of the Constitution has come up for discussion in some cases. In Shirur Mutt v. Commissioner, H.R.E. Board (1952) 1 M.L.J. 557, this Court observed:
Even in the case of a Dharmakartha or the manager of a temple, there may be instances where such a Dharmakartha is not merely a manager but also has beneficial interest in the property. In such a case also, the test laid down on behalf of the respondent would be satisfied. If there be however an instance where the Dharmakartha has no beneficial interest of any sort but is a mere manager with hereditary rights, there is no reason to exclude such a hereditary right of management even from the scope of property; but, however, it is not necessary to express a final opinion on this.
The learned Judge Venkatarama Ayyar, J., sitting with Rajamannar, C.J., held in Narayanan Nambudripad v. The State of Madras (1953) 2 M.L J. 699 : I.L.R. (1955) Mad. 386, that hereditary trusteeship is within the protection afforded by Article 19 (1) (f) of the Constitution, even though the trustee has no right to participate in the income from the endowment or its emoluments. It was said:
The nature and. incidents of the office of hereditary trusteeship are well-settled by authority, if descends like partible property on the heirs of the trustees. Even females will be entitled to the office if they happen to succeed as heirs, vide Annayya Tantri v. Ammakka : (1918)35MLJ196 . When emoluments are attached to that office they are divisible among the co-heirs. When there are no emoluments even then the joint rights of the co-heirs can be exercised by all of them under an arrangement providing for management by turns. In Manohar v. Bhupendra I.L.R.(1933) Cal 452, a Full Bench of the Calcutta High Court held that the rule in the Tagore case (1872) L.R. I.A 47 : 9 Beng. 9 L.R. 377 was applicable to devolution of the office of hereditary trustees; and that was approved by the Privy Council in Ganesh Chunder v. Lal Behary and Bhabatarini Debi v. Asha Lata Debi I.L.R. (1943) Cal 137....
Thus there is ample authority for the view that trusteeship, where hereditary is in the nature of property...the fact that the trustees have no right to participate in the income from the endowment or its emoluments, is not a ground for holding that it is not property for the purpose of Article 19 (1) (j). The word 'hold' is wider in its significance than the word 'enjoy' and trustees who are in management of religious endowments can be said to hold office, though they may have no beneficial interest to enjoy. We are accordingly of opinion that hereditary trusteeship is within the protection afforded by Article 19 (1) (f) even though there are no : emoluments attached to the office.
13. The question was examined again by a Division Bench of this Court (Rama-chandra Iyer, Officiating Chief Justice and Ramakrishnan, J.) in S.D.G. Pandara Sannadhi v. State of Madras : (1962)2MLJ67 and it was observed:
Property is a thing which is owned; it need not necessarily be remunerative. Where a trusteeship is heritable the indicia of ownership, viz., possession and transmission to heirs is there; in most cases it is inalienable but that is by reason of the peculiar nature of the office and cannot for that reason make the trusteeship any the less a property. In Krishna Bhat Bin Hiragange v. v. Kaphal Bhat Bin Mabalbhat (1869) 6 Bom H.C.R. 137 and Balvantrav v. Purushotham Sidheswar (1872) 9 Bom H.C.R 99 reference was made to the standard text-books on Hindu Law to show that in the Smrithis and commentaries, the hereditary office was assimilated to the immovable property. That was also the view held by the Privy Council in Maha rana Fatteh Sanghiji Jaswant Sangji v. Desai Kalian Baiji Hekocomut (1873) L.R 1 I.A 34. In Manathunai Natha Desikar v. Gopala Chettiar I.L.R (1943) Mad. 858 : (1943) 1 M.L.J. 434. Krishnaswami Tyengar, J. referring to a bare trusteeship observed that a hereditary office being something which was capable of being inherited necessarily involves the idea of property. Narayana Nambudripad v. State of Madras (1953) 2 M.L.J. 699 : I.L.R. (1955) Mad. 386 recognised that the hereditary trusteeship of a temple (there being no question of beneficial interest) was property within the meaning of Article 19 (1) (j) of the Constitution. This was followed by Balakrishna Iyer, J., in Sankaran Nair v. Govindan Nambiar (1955) 1 M.L.J. 243. Therefore irrespective of the question of any beneficial interest in or emoluments attached to the office, a trustee or manager of a temple or endowment who obtains the right to the office by hereditary right would be entitled to it as his property.
Though the hereditary trusteeship in the case was held to be property, the petitioner could not get any relief on that basis, as on facts there was no intrusion of the rights of the trustee after the coming into force of the Constitution to apply Article 19 (1) (f) The case went up to the Supreme Court and is reported in S. D. G. Pandarasannadhi v. State of Madras (1965) 2 S C.J. 711 : (1965) 2 An.W.R. 67 : (1965) 2 M.L.J 167 . But the question was not the subject of arguments before the Supreme Court and the Supreme Court had no occasion to examine the position.
14. In Shri Govind Lalji v. State of Rajasthan (1964)2 S.C.J. 715 : A.I.R 1963 S.C. the Supreme Court had to consider, with reference to Srinathji temple at Nathdwara, the claims of Tilkayats in the temple under Articles 19 (1) (f) and 31 (2) of the Constitution. The position of the Tilkayat for the time being was stated to be of a custodian, manager and trustee. Summarising the Tilkayat's right in regard to the temple properties, it is observed:
It is clear that the Tilkayat never used any income from the property of the temple for his personal needs or private purpose...what the Tilkayat can claim is merely the right to manage the property, to create leases in respect of the properties in a reasonable manner and the theoretical right to alienate the property for the purpose of temple; and be it noted--that these rights could be exercised by the Tilkayat under the absolute and strict supervision of the Darbar of Udaipur : Now the right to manage the property belonging to the temple, or the right to create a lease of the property on behalf of the temple, or the right to alienate the property for the purpose of the temple under the supervision of the Durbar cannot, in our opinion, be equated with the totality of the powers generally possessed by the Mahant or even the shebait, and so, we are not prepared to hold that having regard to the character and extent of the rights which can be legitimately claimed by the Tilkayat even on the basis that he was a Mahant governed by terms of the Firman, amount to a right to property under Article 19 (1)(f) or constitute property under Article 31(2).
Even for the purpose of Articles 19 (1) and 31 (2) of the Constitution, the powers of management by a Tilkayat have been held to be not property. The Act under challenge in that case purported to extinguish the secular office vested in Tilkayat by which he was managing the properties of the temple.
15. Again with reference to an educational institution, in Sidhirajbhai v. State of Gujarat : 3SCR837 , the Supreme Court held that interference with the right of bare management of an educational institution does not amount to infringement of the right to property under Article 19 (1) (f) though the word 'property' in Article 19 (1) if) must doubtless be extended to all those recognised types of interest which have the insignia or characteristics of proprietary rights. Referring to Commissioner, E.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt : 1SCR1005 which was relied upon by the educational society, it was pointed out that in that case the Court was dealing with the alleged infringement of the rights of a Mahant in a religious institution, that a Madathipathi of a Mutt is not a mere manager, and that it would not be right to describe Mahantship as a mere office, for a superior of a Mutt has not only duties to discharge in connection with the endowment but he has a personal interest of a beneficial character which is sanctioned by custom and is much larger than that of a shebait in debutter property. The Supreme Court proceeded to point out that in the conception of Mahantship as in shebaitship, both the elements of office and property, of duties and personal interest are blended together and neither can be detached from the other. The Dharmakartha of a temple who has no emoluments attached to his office but only duties to discharge, has like the Tilkayats, no personal interest of a beneficial character in the institution. It is said that the position of a hereditary Dharmakartha of a South Indian temple can be considered to be somewhat higher than that of a Tilkayat, or a manager of an educational institution. The Tilkayat is under the absolute control of the Durbar. But the duties of a Dharma-kartha are prescribed, and in office he does not function under the absolute discretion of another authority. It is a highly prized office and considered meritorious from the religious standpoint, for the opportunity for service in the cause of the deity, that it gives. There are pious Hindus who value the service and the right to serve more than wealth. But as we have seen above to be considered property under Hindu Law, material benefits must be attached to the office. It is unnecessary for the purpose of this case to consider whether the office of Dharmakartha, where hereditary, is not property under Article 19 (1) (f) The hereditary office of Dharmakartha to a certain extent, even when no perquisites are attached to it, may be a legally protected interest; unlawful denial, or deprivation, or interference with the exercise of the right is actionable, but that does not make it a proprietary interest under Hindu Law with all its incidents. Property ultimately is a creature of law, and for law to so recognise. Our concept of property has been widening. We see today property in ideas as in patent and copy right laws. But here the quest is whether the office of Dharmakartha even when hereditary is property under Hindu Law. In our view where no perquisite or emoluments are attached to the office, it is not property under Hindu Law, it may carry with it certain powers over property, which are attributes of property, but the powers can be and are exercised by the Dharmakartha for and on behalf of the deity or institution.
16. The next aspect of the office of Dharmakartha that has to be examined is the devolution of the office. Ganapathi Iyer in his Hindu and Mohammadan Endowments, 2nd Edition, at page 462, says : 'It is perfectly settled that the founder can lay down rules as to the management; only such rules must not be inconsistent with or opposed to the purpose the founder has in view in establishing the worship or other religious or charitable purpose'. The law in this regard is to be found in the following enunciation of the principles by the Judicial Committee in Gossamee Sree Gredharreejee v. Rumanloljee Gossamee (1890) I.L.R. 17 Cal. 3 (P.C.) : L.R. 16 IndAp 137 where their Lordships observed:
According to the Hindu Law, when the worship of a Tahakoor has been founded, the shebaitship is held to be vested in the heirs of the founder in default of evidence that he has disposed of it otherwise or there has been some usage, course of dealing or some circumstances to show a different mode of devolution.
In Mohan Lalji v. Gordhan Lalji Maharap I.L.R.(1913) All. 283 this principle was again affirmed emphasising that the rule must, from the very nature of the right, be subject to the condition that the devolution in the ordinary line of descent is not inconsistent with or opposed to the purpose the founder had in view in establishing the worship. Summing up the position, the Judicial Committee in Janoki Debi v. Gopal Acharjia Goswami I.L.R.(1883) Cal. 766 : L.R. 10 IndAp 32 observed:
It appears to follow from the judgments of their Lordships in Greedharee Doss v. Nundokissore Doss Mohant (1866) 11 M.I.A. 405 . Rajah Muttu Ramalinga Setupati v. Perianayagam Pillai (1873) L.R. 1 IndAp 209 and Rajah Vurmah Valia v. Ravi Vutmah Kunhikutty I.L.R.(1876) Mad. 235 : 1876 L.R. 4 I.A 76 that when, owing to the absence of documentary or other direct evidence, it does not appear what rule of succession has been laid down by the endower of a religious institution, it must be proved by evidence what is the usage.
Mukerjee, J. (as he then was) in Angurbala v. Debabrata : 2SCR1125 delivering the judgment of the Supreme Court referred to the founder's rights in these words:
Unless therefore the founder had disposed of the Bhebaitship in any particular manner--and this right of disposition is inherent in the founder or except when usage or custom of a different nature is proved to exist, she-baitship like any other species of heritable property follows the line of inheritance from the founder.
These decisions recognise the right of the founder to dispose of the Dharmakarthaship in any particular way. If there has been no such disposition, in the absence of any usage or custom of a different nature, the office like any other species of heritable property follows the line of inheritance from the founder. I Gauranga Snhu v. Sudevi Mata : AIR1918Mad1278 it is stated that the institution of hereditary trusteeship is held to rest on the intention of the donor either expressed in the instrument of trust, or to be presumed from usage. In Mukherjee's Hindu Law of Religious and Charitable Endowments, 2nd Edition, at page 201, referring to the subsequent development of the law on the point, the position is summarised 'that it could not be stated as a broad proposition of law that the ordinary rules of inheritance would not govern succession to shebaitship, unless a usage to that effect is proved to exist and the true view is that the ordinary rules would apply unless a usage to the contrary is established. Authorities are thus found to agree on the inherent right of the founder to prescribe for devolution of trusteeship in any particular manner. The really difficult problem is whether the founder can lay down rules as to succession not consistent with the ordinary Hindu Law, and does the decision of their Lordships of the Judicial Committee in Gnanasambanda Pandora Sannadhi v. Velu Pandaram I.L.R.(1900) Mad. 271 : 10 M.L.J. 29 rule out any variation from the ordinary rule of descent.
17. In Greedharee's case (1866) 11 M.I.A. 405 it is said with reference to Mahants or Heads of Mutts that the only law as to these Mohunts and their office, functions and duties is to be found in custom and practice, which is to be proved by testimony, and that no evidence has been adduced before their Lordships to show that any appointment has ever been made in reversion on any former occasion. The principle has been held applicable by the Judicial Committee to the offices of Urallers of Malabar temple (Raja Vurma Valia v. Ravi Vurma Kunhikutty I.L.R.(1876) Mad. 235 : 4 I.A. 76, Pandaram of Rameswaram temple Rajah Muttu Ramalinga Setupathi v. Perianayagam Pillai L.R (1873) 1 IndAp 209, Shebait of an idol Janoki Debt v. Gopal Acharjia Goswami I.L R. (1883) Cal. 766 : L.R. 10 IndAp 32 and by the High Courts to Tambiran of a Mutt Giyana Sambandha Pandara Sannadhi v. Kandaswami Thambiran I.L R. (1887) Mad. 375 the headman of a synagogue Advocate General of Bombay v. D. Hamdevakar I.L.R. (1887) 11 Bom. 185 and sujjadanashin of a mosque S.G. Rahumtulla Sahib v. Akbar Sahib (1874) 8 M.H.C.R. 63.
18. In Greedharee Doss's case (1866) 11 M.I.A. 405 in the judgment of the High Court which was. affirmed by the Judicial Committee, Sir Barnes Peacock, C.J., while negativing the right of a Mahant who once nominated his successor to give directions to his successor when the latter's turn to nominate comes, as to whom he should nominate, observed:
We think that a Mohunt has no power to give such a direction. Numerous cases have been cited to show what is the usage; but the law to be laid down by this Court must be as to what is the usage of each Mohuntee. We apprehend that if a person endows a college or religious institution, the endower has a right to lay down the rule of succession. But when no such rule has been laid down it must be proved by evidence what is the usage, in order to carry out the intention of the original endower.
In S. G. Rahumtulla Sahib's case (1374) 8 M.H.C.R. 63 the suit was to establish the hereditary right of the plaintiff to the office of Sujjadah in a mosque where property had been devoted exclusively to religious and charitable purposes and obtain possession of the moveable and immoveable properties belonging to the institution. The will of the founder, so far as it could be ascertained from the usage of former days, seemed to authorise a mode of succession originating in an appointment of the successor by the incumbent. In holding that the Court would not be authorised to find in favour of any rule of succession by primogeniture solely from, the circumstance that the persons appointed were usually the eldest sons, this Court applied the principle that 'in cases of this kind, the determination of the question depends not on the general law of property but upon the rules which the founder of the endowment may have established whether such rules are defined by writing or are to be inferred from evidence of usage'. In Rajah Vurma Ratio's case (1876)I.L.R 1 Mad. 235 (P.C.) : 4 I.A. 76 with reference to Tracharamana temple according to the constitution of which foundation, the Urallers (trustees or managers) of the temple for the time being were to be the karnavans or chief members of four different Tarwards, the Judicial Committee observed:
The unknown founder may be supposed to have established this species of corporation with the distinct object of securing the due performance of the worship and the due administration of the property by the instrumentality and at the discretion of four persons capable of deliberating and bound to deliberate together; he may also have considered it essential that those four persons should be the heads of particular families resident in a particular district, open to the public opinion of that district, and having that sort of family interest in the maintenance, of this religious worship which would insure its due performance.
Their Lordships spoke about the four trustees: as of his creation and referred with approval to the observations of Sir Barnes Peacock, C.J. in the High Court in Greedharee Doss's case (1866) 11 M.I.A. 405 extracted above enunciating the right of a founder of a college or a religious institution to lay down the rule of succession. They also referred to their enunciation of the same principle in Rajah Muttu Ramalinga Sethupati's case (1873) L.R.1 IndAp 209 in the following terms:
But the constitution and rules of religious brother-hoods attached to Hindu temples are by no means uniform in their character, and the important principles to be observed by the Courts is to ascertain, if that be possible, the special laws and usages governing the particular community whose affairs become the subject of litigation, and to be guided by them.
That principle was laid down by the Committee in an appeal involving the succession to the office of Mohunt of a richly endowed mutt in Rajgunge in these terms....(Greedharee Doss's case) (1866) 11 M.I.A. 405 .
In Rajah Vurmah Vali's case (1876)I.L.R 1 Mad. 235 (P.C.) : 4 I.A. 76 just now referred to, the Judicial Committee having regard to the usage of the institution, would infer that the founder prescribed a method of devolution under which the senior most members for the time being of four different families should be managers or trustees of the temple. If the managership or the office of Urallers is regarded as right in property, manifestly the rule of devolution prescribed goes against the principle laid down in Tagore case and the succession to the office provided for is not according to the ordinary law of descent of private property. Krishnaswami Pillai v. Mookayi Ammal 31 Ind.Cas. 35 is a case where this Court recognised the validity of an arrangement with reference to a charity wherein the family had no beneficial interests for the management of the charity by the head of the family in each branch, females being excluded.
19. What strikes us as the governing principle behind these decisions is that in the scheme of devolution of the office for administration of a public religious or charitable institution when the dedication of property is of the completed character no rights in the property are dealt with, the Dharmakartha or manager provided' thereunder having no proprietary interest in the dedicated property or profits therefrom. Else it must be held that Hindu Law by usage invests the founder with power to lay down the scheme of succession he considers best in the interests of the foundation he endows. The founder, when the dedication is complete, divests himself of all proprietary rights in the property endowed. The deity, a juristic entity, is the proprietor who never dies but labours under physical disability which renders it necessary that its interests should be looked after in perpetuity. As a concomitant a power has been recognised in the founder to appoint and provide for a manager to look after the affairs of the deity which has became the owner of the property. The office which he creates for attending to the affairs of the deity is a thing of his own creation and if it is a bare office without perquisites; there is no property in it in the Hindu Law sense of the term. There is one-observation of their Lordships of the Judicial Committee in Tagore Case (1872) L.R. IndAp 47 : 9 Beng. L.R. 377 which is significant in this context. They stated:
The power of parting with property once acquired, so as to confer the same property upon another, must take effect either by inheritance or transfer, each according to law.
When there is dedication the property has been parted with. In creating the office of manager or Dharmakartha and providing for continued representation in the office, can it be said that the founder is parting with any property acquired so that it must necessarily devolve by inheritance We find it difficult to regard the exercise of the power as dealing with property in the context of our discussion. It may result in the creation of something in the nature of property for some purposes and here we are only on the exercise of the power.
20. As pointed out earlier, Tagore v. Tagore (1872) L.R. IndAp 47 : 9 Beng. L.R. 377 endorses resort to general principles affecting transfer of property which must prevail wherever law exists, while-laying aside rules of detail prevailing in England. In Halsbury's Laws of England, Vol. 4, Simonds Edition, page 396, we find the position thus stated with reference to Charitable Corporations in England:
A charitable corporation, in so far as it is charitable, is the 'creature of the founder'. The founder may accordingly provide for the Government and administration of his 'creature' and the application in perpetuity of the revenues. Moreover, he and his appointees, have the perpetual right of patronage and visitation.
But he may not alter the constitution of the corporation by increasing the number of corporators or vary the trusts or application of the endowment or revenues, unless special powers for this purpose are reserved by the charter of incorporation.
In Pamabrahma Chatterjee v. Kedar Nath Banerjee (1922) 36 Cal L.J. 478 shebaitship in respect of a temple vested in descendants of the founder in the male line. But his descendants in the female line had always participated in the bhog offering made to idols. A dispute was raised as to the right of the descendants in the female line to participate in the bhog offering. The origin of the foundation was unknown, and the Courts came to the conclusion that the system of bhog offering must have had its origin in a direction given by the founder. In upholding the competence of the founder to direct that the shebaitship shall be vested in his descendants through his sons and that his descendants through his daughters should have the right to participate in the bhog offering, Sir Asutosh Mukerjee, J., affirming the principle that a charitable corporation in so far as it is charitable is the creature of the founder, observed thus:
In the words of Lord Mansfield in St. John's College v. Todington (1757) 1 Burr. 158, a charitable corporation, in so far as it is charitable, is the creature of the founder. On this view, Lord Hardwicks had ruled in Green v. Rutherford (1750) Ves. Sen. 462. that the founder may provide fort the government and administration of his creature and the application in perpetuity of the revenue; see also Phillips v. Bary (1690) 1 Ld. Raym 5 : 268 Holt. 715 (which was ultimately decided by the House of- Lords : Phillips v. Bury Shower PC. 35: 1 E.R. 24 and contains an elaborate review of the rights of founders of charitable and! religious trusts.
The learned Judge pointed out that the principles have been applied in the case of religious endowments created in accordance with Hindu Law. The relevant parts of the report in the decision of the House of Lords in Phillips v. Bury Shower PC. 35: 1 E.R. 24: though phrased in the technicalities of ancient English law, are clear and may be usefully set out:
But private and particular corporations for charity, founded and endowed by private persons are subject to the particular government of those who erect them. Therefore, if there be no visitor appointed, in all such cases of eleemosynary corporation, the law doth appoint the founder and his heirs to be visitors, They are patrons and not to be guided by the common known laws and rules of the Kingdom; but such corporations are as to their own affairs to be governed by the particular laws and constitutions assigned by the founder....Patronage and visitation are necessary consequence one upon another; for this visitatorial power was not introduced by any canons or constitutions ecclesiastical, it is an appointment of the law, it ariseth from the property which the founder had in the lands assigned to support the charity; And as he is the author of the charity, the law gives him and his heirs a visitatorial power, i. e., an authority to inspect their actions, and regulate their behaviour as he pleaseth.
It follows that, when a founder on making dedication of his property provides for the management of the property by persons in succession in a manner which according to him is; best fitted and proper in the interests of the foundation, he makes no transfer or gift of property, but creates an office of perpetual obligation to the endowment to enure as long as the endowment lasts.
21. Considerable reliance is placed for the plaintiff on the decision of the Calcutta High Court by a Full Bench of five Judges in Manohar Mukherji v. Bhupendranath Mukherji I.L.R. (1933) Cal. 452, where after an elaborate review of authorities, it was decided that shebaitship is property with regard to the disposition of which the rule in Tagore v. Tagore (1872) L.R.IndAp 47 : 9 Beng. L.R. 377 is applicable.
22. Mukherji, J., who delivered the leading judgment taking the view that the Privy Council in Tagore Case (1872) L.R.IndAp 47 : 9 Beng. L.R. 377 directly decided that the rule in that case applied to such office as that of shebait, ruled as follows:
The founder of a Hindu debuttar is competent to lay down rules to govern the succession to the office of shebait, subject to the restriction that he cannot create any estate unknown or repugnant to Hindu Law.
A person succeeding to shebaiti is a grantee or done of property and his right to succeed to the office is subject to the rule that a gift cannot be made by a Hindu to a person not in existence at the time of the gift.
Rules for succession to the office of shebaits are rendered invalid by reason that they provide for the office to be held by some among the heirs of a founder to the exclusion of others in a succession differing from the line of Hindu inheritance.
23. In Ganesh Chunder Dhur v. Lal Behary Dhur , the Judicial Committee referred to the Full Bench decision with approval. Their Lordships said:
In Gnanasambanda Pandara Sannadhi v. Velu Pandaram I.L.R.(1900) Mad. 271 : 1900 10 M.L.J. 29 it was held by this Board that the second ruling in the Tagore case L.R. (1872) IndAp 47 : 9 Beng. L.R. 377 above referred to is-applicable to a hereditary office and endowment as well as to other immovable property. This decision was followed in Manohar Mukherji v. Bhupendranath Mukherji I.L.R.(1933) Cal. 452.
24. In Manohar Mukheji's case I.L.R.(1933) Cal. 452, the question involved was as to the right to the shebaitship of two family deities and the validity of the will of the founder who died in 1840 providing for a life of succession to the shebaitship at variance with the ordinary Hindu Law of inheritance. The case is clearly distinguishable as it proceeds on the premise that shebaitship is property. The learned Judges referred to the distinction between the position of a dharmakartha and that of shebait, indicated by the Judicial Committee in Srinivasachariar v. Evalappa Mudaliar and held that it is impossible to regard shebaitship as anything else than property within the meaning of Hindu Law. Examining at length the case law relating to the nature of shebaitship, it is pointed out that shebaitship is not a bare office but an office together with certain rights attached to it, an office made up of the dose intermingling of duties and personal interest, and a shebait's position towards debuttar's property is not similar to that of a trustee towards trust property in England. The very question which the learned Judges constituting the Full Bench addressed to themselves, suggests that, if shebaitship is not property but merely an office, the rule in Tagore v. Tagore L.R. (1872) IndAp 47 : 9 Beng. L.R. 377 against creating a line of inheritance different from the rules of Hindu Law will not apply. They posed as the main question : whether shebaitship in Hindu Law is property of any kind, to which Tagore v. Tagore L.R. (1872) IndAp 47 : 9 Beng. L.R. 377 may apply, or is merely an office to which the founder of an endowment is competent to appoint or nominate persons in order of succession, which may have the effect, so far as the founder is concerned, of 'creating a new form of estate or altering the line of succession allowed by law, for the purpose of carrying out his own wishes or views of policy'. Refering to the decision in Manohar Mukherji' s case I.L.R.(1933) Cal. 452 and Ganesh Chunder Dhur's case . The Judicial Committee said in Bhabatarini Debi v. Ashalata Debi that the effect of the cases was to emphasise the proprietary element in shebaiti's right and to show that, though in some respects anomalous, it was an anomaly to be accepted as having been admitted into Hindu Law from an early date. In Angurbala's case : 2SCR1125 , citing Manohar Mukherji's case L.R. (1872) IndAp 47 : 9 Beng. L.R. 377 the Supreme Court observed:
It is the presence of this personal or, beneficial interest in the endowed property which invests shebaitship with the character of proprietary rights and attaches to it the legal incidents of property.
The distinction has again been emphasised by the Supreme Court in Kalipada Chakraborti v. Smt. Paloni Bala Devi : 4SCR503 . The Supreme Court observed:
Whatever might be said about the office of a trustee, which carries no beneficial interest with it, a shebaitship, as is now well settled, combines in it both the elements of office and property.
25. The decision of the Judicial Committee in Gopal Chunder Bose v. Kwtick Chunder Dey I.L.R.(1902) Cal. 716 where in one sentence! that their Lordships think the High Court has given a perfectly correct interpretation of the will; they affirmed the judgment of the High Court, also relates to shebaiti right with reference to' worship in the family house. The High Court had held, having regard to the decision in Gnanasnmbanda Pandara Sannadhi's case I.L.R.(1900) Mad. 271 : 10 M.L.J. 29 that the rule in Tagore Case L.R. (1872) IndAp 47 : 9 Beng. LR 377 was applicable, and did not accept the argument that the question was not about the actual bequest or gift of immovable property but only with the appointment of persons to superintend and manage the pagoda. We do not think it necessary to examine in greater detail the cases from Calcutta which, have been placed before us, as they all relate to shebaiti rights and family debuttar's as they are all clearly distinguishable.
26. We shall now examine the decision of the Judicial Committee in Gnanasambania Pandara Sannathi's Case I.L.R. (1900) Mad. 271 : 1900 10 M.L.J. 29 and see what principle their Lordships have laid down therein. In that case the religious foundation was a Kattalai attached to a temple in Thirukkadaiyur. The endowment was founded by a remote ancestor of the plaintiff Velu Pandaram, and Chockalinga, the 2nd defendant in the suit which went up in appeal to the Judicial Committee. There was no instrument of endowment or dedication and the suit was brought by Velu Pandaram as hereditary trustee of the endowment to establish his right to management of the endowment and for possession of the lands forming the endowment either solely or jointly with the 2nd defendant. The ancestors of the plaintiff and the 2nd! defendant had been hereditary trustees of the endowment jointly entitled to management. When the plaintiff's paternal grandfather Velu Pandaram and his divided family member Kuppa Pandaram, the father of the 2nd defendant, were in management, Kuppa Pandaram died in 1866, leaving his widow and minor son the 2nd defendant. Velu Pandaram died in 1868 and he was succeeded by the plaintiff's father Nataraja. By two conveyances, one by the 2nd defendant's mother on behalf of the 2nd defendant in 1868, and the other by the plaintiff's father in February, 1869, each of a half share in the management, the entire right as to the management of the endowment was transferred to the Pandarai Sannadhi of Dharmapuram Mutt. At the time of the conveyance by the plaintiff's father, the plaintiff was not born and the plaintiff's father died in August, 1884. The 2nd defendant Chockalinga attained majority in 1880 and in August, 1892 the plaintiff filed the suit as successor of his father to the hereditary trusteeship, in the High Court In the High Court, the hereditary right of the plaintiff's family to the trusteeship was not contested, nor was there any question about the illegality of the alienations, the sole point argued was one of limitation. The trial Court upheld the plaintiff's right to recover his father's half share in the management finding that the other half share which belonged to the 2nd defendant was barred. The High Court on appeal held that the right of the plaintiff accrued only on the death of his father, and so was not barred. In that view this Court granted a decree in favoun of the plaintiff entitling him to the sole management and possession of the endowment and its properties. The Judicial Committee taking up first the title of the 2nd defendant Chockalinga, held that Chockalinga had under Article 124 of the Limitation Act (XV of 1877) 12 years from the date of the assignment and three years from his attaining majority to sue for the office. His right was therefore, found barred. The suit had been filed by the plaintiff for declaration of his right to the management in full or a share therein and the claim for possession of the lands was ancillary to the claim to the office. The committee pointed out that one is attached to the other and that there is no distinction between the office and the property of the endowment. Applying Article 124, they held that the claim of Nataraja, the plaintiff's father, was barred and his right extinguished even in his life time. Article 124 of the Limitation Act applies to a suit for possession of an hereditary office, and under the 3rd column which prescribes the starting point for limitation, limitation commenced when the defendant took possession of the office adversely to the plaintiff. The Explanation to column 3 amplified, not only what is meant by possession of hereditary office but also the hereditary offices intended to be governed by the; Article. The Explanation states that an hereditary office is possessed when the profits thereof are usually received, or if there are no profits when the duties thereof are usually performed. The Explanation makes it clear that Article 124 applies not only to a case where the hereditary office carries with it profits, that is, perquisites or emoluments, but also to a case where without profits being attached duties are performed. The office of hereditary Dharmakartha would be governed by the Article. The attempt before the Judicial Committee in Gnanasambctnda Pandora Sannadhi's case I.L.R.(1900) Mad. 271 : 10 M.L.J. 29 was to get over the bar of limitation by contending that the office was held in a succession of life estates and advance the cause of action. The claim appears to have been that each person who succeeded to the office in hereditary right, had a fresh start regardless of anything his predecessor had done or suffered. Prior to the amendment in 1871 of the Limitation Act providing a 12 year period of limitation), the attempt had been to bring in all hereditary offices as immovable property. Article 124 of the amendment treated hereditary office like land for the purpose of barring suits for possession of the office, whether profits are attached to the office or not.
27. Before the Judicial Committee, Counsel for the plaintiff attempted to put the case not as a claim to an office but as in the exercise of a right to recover for the purpose of the trust, the possession of the endowed properties which had been illegally acquired from the plaintiff's predecessors with knowledge of breach of trust. To a suit so framed Article 144 of the Limitation Act may have been no answer. But that was not the form of the suit and there was no case that the alienee was not applying the property for the purpose of the trust. The claim that had actually been adumbrated was one to the office with lands attached to it. Mr. J. D. Mayne, Counsel who appeared for the Pandara Sannadhi, the alienee, pointed out that Velu Pandaram and Kuppa Pandaram had received the property as members then representing the family entitled to the property by inheritance and a point was pertinently made by the Counsel that the office of trust claimed was not one filled by election or selection among the members of the religious foundation, but that it was an office that devolved by the law of inheritance upon the members of the founder's family. So presented was submitted that it would be in contravention of the Hindu Law of inheritance to hold that an endowment of a heritable character should be held in a series of successive life estates by the heritors. For the plaintiff reliance was placed particularly upon the judgment of the Bombay High Court in Trimbak Bawa v. Narayan Bawa I.L.R.(1883) Bem. 188 and it was contended that he did not derive his right to sue from or through his father Nataraja and that on the death of his father fresh right accrued to him. Their Lordships negatived the claim of the plaintiff in these words:
There is no evidence of the origin of the endowment in this suit. It must be assumed that it was by a gift from the founder.... In juttendramohun Tagore v. Ganendramohaun Tagore (1872 )L.R. IndAp 47 : 9 Beng. L.R. 377 it was held by this committee that all estates of inheritance created by gift or will so far as they are inconsistent with the general law of inheritance are void as such and that by Hindu Law no person can succeed thereunden as heir to estates described in the terms which in English law would designate estates tail. The Hindu Law of inheritance did not permit the creation of successive life estates in this endowment and this ruling is decisive against the contention on behalf of Velu and is contrary to the judgment in the Bombay case.
Ex facie on the facts, respondent Velu Pandaram could be entitled only as heir to his father Nataraja. The succession was statedly hereditary. Hereditary succession is succession by the heir to the deceased under the law, according to the rules of inheritance the law laid down. Nataraja's right to the office was barred by Article 124, and, as the endowment went with it, the right to the possession of the endowed property was also barred. In the context their Lordships gave their opinion that the ruling in Tagore Case (1872) L.R. IndAp 47 : 9 Beng. L.R. 377 is applicable to an hereditary office and endowment as well as to other immoveable property. They said:
The respondent Velu can only be entitled as heir to his father Nataraja and from and through him and consequently his suit is barred. by Article 124. In their Lordship's opinion the ruling in Juttendramohun Tagore v. Ganmdramohaun Tagore (1872) L.R. IndAp 47 : 9 Beng. L.R. 377 is applicable to an hereditary office and endowment as well as to other immoveable property.
The question now is what their Lordships meant to lay down by this pronouncement--whether their Lordships only say that in the case of an office which is hereditary in the ordinary sense, that is, where the rule of succession is the same as for the descent of private property, Article 124 applies, and whether it is trusteeship of a temple or any other hereditary office, it is not a succession of life estate as contended for; or their Lordships hold with reference to even such office, that the only title which would be valid, would be title claimed as heir to the father under the ordinary law of inheritance, thereby negativing any right in the founder to prescribe rules as to succession differing from the ordinary Hindu Law of inheritance. We find it difficult to say of their Lordships that they have taken the latter view, when we find from the recorded notes of argument that no such case was presented by learned Counsel. And on such a matter their Lordships, having regard to the case law, with utmost respect we say, would if they so intended have given their clearest expression of opinion.
28. In Manohar Mukkerji's case I.L.R.(1933) Cal. 452 the learned Judges of the Calcutta High Court discussing Gnanasambanda Pandara Sannadhi's case I.L.R.(1900) Mad. 271 : 10 M.L.J. 29 conclude that the rule in Tagore Case (1872 ) L.R. IndAp 47 : 9 Beng. L.R. 377 applied to such an office as that of a shebait and it is not reasonuble to read it as merely deciding a question of limitation. They distinguished Ramabrahma Chatterji's case (1922) 36 Cal. L.J. 478 where it was held that it is competent for the founder of an endowment not only to prescribe the line of succession to the shebaitship in the descendants of his sons but also to direct that the descendants of his daughters would be entitled to participate in the bhog offering dedicated to the idols established by him, on the ground that bhog offering directed to be shared was not an interest in property for the rule in Tagore case (1872) L.R. IndAp 47 : 9 Beng. L.R. 377 to apply. It is unnecessary for us to examine cases where perquisites or emoluments are attached to the office of Dharmakartha. If the Full Bench decision of the Calcutta High Court in Manohar Mukherji's case I.L.R.(1933) Cal. 452 should be interpreted as laying down that even an office without perquisites can descend only according to Hindu Law of inheritance and has always and necessarily to be an hereditary office, with great respect to the learned Judges we have to differ. It looks as if the learned Judges carried an impression that in Gnanasambanda Pandara Sannadhi's case I.L.R.(1900) Mad. 271 : 10 M.L.J. 29 the office contained some emoluments, for they only observe that 'it does not appear that there were any emoluments expressly attaching to the office of the manager'. In the case of a shebait even where no emoluments are expressly attached to the office, he enjoys some sort of right or interest in the endowed property, generally right of residence, which partially at least has the character of property right--Angurbala's case : 2SCR1125 in Gnanasambanda Pandara Sannadhhi's case I.L.R.(1900) Mad. 271 : 10 M.L.J. 29 the statement of facts in the judgment of the Judicial Committee lends some room for such a view, for they say:
The plaint states that the endowment was founded by the ancestors of Velu and Chockalinga, and it was arranged by them that only the members of their family should hereditarily hold the properties which were their family property, and from the income thereof conduct the worship and charities connected with the temple....
But their Lordships were only setting out the plaintiff's case.
29. The right of the plaintiff in Gnanasambanda Pandara Sannadi's case I.L.R.(1900) Mad. 271 : 10 M.L.J. 29 was as heir to his father and through him. Their Lordships place emphasis on this aspect of the case. Ordinary inheritance under Hindu Law is not a succession of life estates. That is what their Lordships said in Tagore case (1872) L.R. IndAp 47 : 9 Beng. L.R. 377 for the contention before them was that trusteeship, even if hereditary, was a succession of life estates. The clue to what their Lordships meant, is found in the reference in the report of their judgment to page 66 of the Report in Tagore case (1872) L.R. IndAp 47 : 9 Beng. L.R. 377. There at page 66 their Lordships lay down the proposition that by Hindu Law no person can succeed thereunder as heir to the estate described in terms which! in English law would designate estates tail.' The Judicial Committee had no occasion to consider--and were not called upon to examine--whether the founder could prescribe a mode of devolution differing from the ordinary law of inheritance but consistent with the objects and aim of the religious worship instituted'., The committee were dealing only with the question of limitation and when the period commenced to run, in a case where the trusteeship was hereditary in the family. The argument before the Committee on behalf of the alienee set out earlier that the office of trust claimed was not one filled by election or selection indicates the true scope of their Lordships' decision. The reference in Gnanasambanda's case I.L.R.(1900) Mad. 271 : 10 M.L.J. 29 to the earlier decision in Raja Vurmah Valia's case is a clear pointer that they were denying at all the power of the founder to provide a mode of succession to the office differing from the ordinary Hindu Law of inheritance. In Raja Vurmah Valid's case they recognised the right of the endower of a religious institution to lay down rules of succession for the trusteeship. The scheme in that case provided for the management of a temple being vested in the seniormost members for the time being in four distinct families. Such a scheme involves the negation of the rule against gifts to unborn persons. If the founder could provide for election or selection to the office by nomination of the successor by the incumbent for the time being--the validity of such a scheme was assumed by Counsel before the Committee--that grants the validity of the gift of the office to unborn persons. To adopt that reasoning of Rankin, C.J., in his referring order in Manohar Mukherji's case I.L.R. (1933) Cal 452 if there is no necessity for the trustee to come to be in existence when the scheme is settled, then any afterborn can take as persona designata. If there could be selection, no bar can be seen for selection among heirs excluding some and including others;; that is what happens when the seniormost member is designated. And if selection could be made from among outsiders, there is no logic or reasoning for prohibiting selection from among descendants by providing that at any given time persons related in a particular manner shall function as trustees. No reason of public policy can be propounded for a rule that descendants should not take under the founder's direction, because the selection may fall on heirs and non-heirs approximating to am extent to the Hindu Law of inheritance while differing from it in some respects.
30. The decision in Trimbak Bawa v. Narayan Bawa I.L.R.(1883) 7 Bom. 188 which their Lordships overruled, related to a case where the founder bad vested the management of a temple endowment in a certain family. In deciding a question of limitation, the Bombay High Court held that each member of the family succeeded to the management pro formam doni. In that case as in Gnanasambanda Panaara Sannadhi's case I.L.R.(1900) Mad. 271 : 10 M.L.J. 29 there was no special scheme of succession prescribed the founder and the succession was hereditary in the family: the ordinary law of inheritance prevailed. In our view, all that the Judicial Committee in Ganasambanda Pandara Sannadhi's case I.L.R.(1900) Mad. 271 : 10 M.L.J. 29 decided was that, granted that the office in a particular case is hereditary, the contention is not open that the estate is held under a term of successive life estates, for inheritance under Hindu Law is not in estate tail. We are inclined to agree with Rankin, C.J., in his referring order in Manohar, Mukherji's case I.L.R.(1933) Cal. 452 that their Lordships in Gnanasambanda Pandara Sannadhi's case I.L.R.(1900) Mad. 271 : 10 M.L.J. 29 did not more than put a construction on the Limitation Act and applied Article 124 to the case of an office which is hereditary in the ordinary Hindu Law sense. We are of opinion that the Judicial Committee did not say that there can be 'non-hereditary' office, that is an office not descending solely under the law of inheritance, in respect of bare trusteeship of a Hindu religious institution like that of Dharmakartha, and the founder cannot create such an office to enure in perpetuity as long as the religious foundation lasts.
31. It is relevant in this context to refer to the observations of the Supreme Court in Kalipada Chakraborti v. Smt. Palani Bala Devi : 4SCR503 a case relating to shebaiti right in respect of a private debuttar The Supreme Court said:
Article 141 refers expressly to immovable property and not to property in the general sense of the word. On the other hand, it is quite settled that a shebaiti right is a hereditary office and as such comes within the express language of Article 124 of the Limitation Act....The intention of the Legislature is obviously to treat hereditary office like land for the purposes of barring suits for possession of such office and extinguishing the right to the possession thereof after a certain period.... (After referring to Gnanasambanda Pandara Sannadhi's case I.L.R.(1900) Mad. 271 : 10 M.L.J. 29 Article 124 relates to a hereditary office and this means that the office goes from one person to another solely by the reason of the latter being a heir to the former...to defeat the title of the plaintiff under Article 124 it is necessary to establish that the defendant had taken possession of the office adversely to the plaintiff or somebody from or through whom the plaintiff derives his title, more than 12 years prior to the institution of the suit. This is exactly what is laid down in Gnanasambanda v. Velu I.L.R.(1900) Mad. 271 : 10 M.L.J. 29.
In Smnayan Chetty v. Sinnappan Sevai : (1910)20MLJ654 where a partition deed with reference to the devolution of trusteeship of a temple provided that after the lifetime of the designated individual the seniormost member for the time being shall manage the property endowed, it was held that it was not a case of hereditary trusteeship. Our attention was drawn to the definition of hereditary trusteeship in the Madras Religious and Charitable Endowments; Act. But the definition of hereditary trusteeship in Special Acts is not relevant in the context of the matter now discussed. The decision of the Supreme Court in Sambandamurthi Mudaliar v. The State of Madras C.A. No. 1671 of 1966 cited cannot also help the plaintiff in this case. All that the Supreme Court has decided in that case is that the office of hereditary trustee is 'in the nature of property' and that this is so whether the trustee has beneficial interest of some sort on not. Granted that the office is hereditary, it may be a species of property for certain purposes. It may be property under Section 27 (old Section 28) of the Limitation Act. The question here is whether an office of trusteeship could be created by the founder which is not according to the law of inheritance of private property, and whether there is any prohibition against such a scheme of succession to trusteeship. If bare trusteeship is not property, we see no prohibition for such scheme in Hindu Law., The rule in Tagore v. Tagore (1872) L.R. IndAp 47 : 9 Beng. L.R. 377 does not apply to bare offices which have not necessarily to be hereditary. In Sambanda Murthi Mudaliar's case C.A. No. 1671 of 1966 also the Supreme Court recognised the right of the founder to provide a special scheme of succession for the office of Dharmakartha or shebaitship. Their Lordships say:Ordinarily a shebaitship or the office of Dharmakartha is vested in the heirs of the founder unless the founder has laid down a special scheme of succession or except when usage or custom in the contrary is proved to exist.
32. Here we may refer to the decision of this Court in Mahomed v. Ganapathi I.L.R.(1890) Mad. 277 which is referred with approval by the Judicial Committee in Vidya Vamthi Thirtha v. Balusami Ayyar . In Mahomed v. Ganapathi I.L.R.(1890) Mad. 277 the suit was by a Dhariakartha to recover possession of lands leased already by his predecessor. The defence was one of limitation. There was nothing to show the mode of devolution of the office. In Vidya Vamthi Thirtha's case the Judicial Committee quotes with approval the following passage in Mahomed v. Ganapathi I.L.R.(1890) Mad. 277 from the judgment of Shepperd, J., with whom Muthuswami Ayyar, J. concurred.
In the present case, though the plaintiff may in point of time have succeeded the Dharmakartha who made the alienation, he does not derive his title from that Dharmakartha and is, therefore not bound by his acts. Subject to the law of limitation, the successive holders of an office, enjoying for life the property attached to it, are at liberty to question the dispositions made by their predecessors.
We hold, therefore, that the restriction laid down in Tagore v. Tagore (1872) L.R. IndAp 47 : 9 Beng. L.R. 377 does not apply to the office of Dharmakartha under consideration. The first defendant has valid title to the office along with the other male descendants of the founder, plaintiff and defendants 2 and 3. The successor to the office does not take the office solely in his rights as heir to his predecessor but pro formam doni as direct nominee under the rules of succession laid down by the founder. We are in entire agreement with the following observations of Krishnaswami Ayyangar, J., in K. Manathunainatha Desikar's case I.L R. (1943) Mad. 858 : (1943) 1 M.L.J. 434.
But, if a bare right to manage the temple and its affairs does not partake of the character of property it is difficult to conceive how the Tagore case (1872) L.R. IndAp 47 : 9 Beng. L.R. 377 can come in the way a person who is attempting to regulate not the descent of his property but the choice of the individuals who are to hold the office of manager of a temple founded by him. Where such is the purpose, no objection on grounds of public policy can possibly arise. In fact, schemes are framed every day by the Courts laying down rules for the filling up in future of the office of trustee or trustees which are totally inconsistent with the law as declared in the Tagore case (1872) L.R. IndAp 47 : 9 Beng. L.R. 377. So far as we are aware, nobody has ever suggested that such schemes are invalid or open to attack for reasons of public policy. It cannot be pretended that in the matter of framing schemes the Courts are supreme and possess the power of transgressing the law of inheritance or the law of gifts. It is to be remembered in this connection that such institutions are admittedly favoured at any rate to this extent, namely, that the rules against perpetuities and accumulations, which apply to gifts and bequests in favour of private individuals, are relaxed in their case.
33. In this view, a decision on the question of res judicata is even unnecessary. But, as full arguments have been addressed thereon, we shall express our opinion. That the very questions that call for decision now have been the subject of adjudication in the former suit is not and cannot be disputed. Only two questions, one whether on the true interpretation of the will of the founder, the present appellant is entitled to claim the office of trusteeship and two, whether the scheme for devolution of the office is valid, were the substantial questions raised and considered in the trial Court, and were the subject of examination and decision by this Count on appeal. Manifestly, if the other requirements for the operation of the bar of res judicata are present, a determination on the applicability of the rule in Tagore v. Tagore (1872) L.R. IndAp 47 : 9 Beng.L.R. 377 to the scheme of succession laid down by the founder, now again put in issue, would be res judicata. The question, though one of law, is a question the decision whereon rests with the Court on the interpretation of the will of the founder so the decision, even if erroneous in law, would be binding on the parties. One requirement for the rule to operate is apparently wanting; the present plaintiff was not eo nomine a party on record in the former suit, when the decision was given. Mr. M. 3. Venkatarama Aiyar, learned Counsel for the appellant, contends for the applicability of the rule on the ground that the plaintiff is a privy of a party to the former suit and alternatively, a person whose interest was represented by parties on record in the prior suit. It is submitted that the office of trusteeship, the subject-matter in dispute was fully represented by the parties on record in the former suit, to preclude successors to the office from re-agitating a matter that was squarely in issue in the former suit and fairly fought out and determined. Mr. R. Ramamurthi Aiyar, learned Counsel for the plaintiff-first respondent, submits that the plaintiff does not claim under parties to the prior litigation, and that the parties actually on record in the suit were not impleaded in a representative capacity so as to bind all the parties interested in the issue. It is- further pointed out that, when there are a number of trustees, the office is a joint one and there could be no proper representation to the office or binding adjudication in relation to it unless all the trustees had jointly acted in defence. It is said that, where there are a number of trustees, all should be impleaded as parties or duly represented according to law by proceeding under Order 1, Rule 8, Civil Procedure Code.
34. In the former suit, O. S. No. 20 of 1938, the plaintiff claimed joint possession of the office of trusteeship and of the trust properties along with the defendants in that suit. Besides defendants 1, 4 and 5, the descendants in the male line of the founder, even the widows of the first defendant's deceased two brothers were impleaded as party defendants;. When the 4th defendant died pending the suit in the trial Court, his widow was. added as his legal representative for the purpose of the suit. The father of the present plaintiff and defendants 2 and 3 was the 5th defendant in that suit. Defendants 2 and 3 were brought on record in the former suit at the appellate stage on the death of their father. That aspect will be taken up later. To the suit as originally constituted no point was taken in the written statement of the defendants that any other person interested in the office or entitled to be a trustee was left out: As the plaintiff in the former litigation claimed joint possession of the office of trusteeship, all the trustees in possession of the office, were necessary parties. Even though a big pedigree has been exhibited in the prior litigation and now, there has been no suggestion in evidence, leave alone the pleadings, that other members in the pedigree entitled to the office of trusteeship and alive at the time of the institution of the prior suit had been left out. No issue of non-joinder of parties was raised. It has, therefore, to be taken, that at the institution all persons interested in the office of trusteeship had been made parties to the former suit and none of them had been omitted from the array of parties. The suit was properly constituted.
35. A decision in a former suit would be res judicata under Section 11, Civil Procedure Code, in a subsequent suit brought by the same parties or between persons who claim under the parties to the previous suit litigating under the same title. Explanation VI to Section 11 provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purpose of this section, he deemed to claim under the persons so litigating. The raison d'etre of the rule of res Judicata is to give finality to decisions arrived at by competent courts between interested parties after genuine contest. Res judicata binds parties and also privies. persons who claim under parties on record. A person not actually claiming under a party to the former suit but who was represented by a party in the former suit in respect of a public right or a private right claimed in common for himself, is by Explanation VI deemed a privy. Suits under Order 1, Rule 8, Civil Procedure Code, are instances of the class of suits termed representative suits where persons not actually on record in the former suit are bound by the decision therein. But they do not exhaust the classes of representative suits. Explanation VI includes any litigation in which, apart from Order 1, Rule 8, parties are entitled to represent interested persons other than themselves. It is only when a suit is expressly representative under Order 1. Rule 8, the procedure laid down under Order 1, Rule 8 should be strictly observed--see Kmwravelu Chettiar v. Ramaswami Ayyar .
36. The former suit was not one under Order 1, Rule 8, Civil Procedure Code. Order 1, Rule 8, applies only to cases where there are numerous persons having the same interest in a suit, when convenience requires that amongst the large number of persons so interested a few should be allowed to represent the whole. It is an enabling provision which entitles one party or a few to represent several persons who have a common cause of action. In the instant case, as discussed! above all the persons then having interest in the office of trusteeship must, on the materials on record, be held to have been made parties to the former suit. If the suit had gone to final judgment as originally constituted, clearly persons who had succeeded to the office after the parties on record in that suit would be bound by the result of the suit. Mulla's Code of Civil Procedure, 13th Edition. collecting decisions points out at page 83 that a shebait, a trustee of a Devasam, a Mutawalli, an administrator of the estate of a deceased person, each represents his successor and, therefore, a decree against Mm will bind his successor. In Madhavan v. Keshavan I.L.R.(1888) Mad. 191 the uraima (managership) right over a certain Devasam. was vested in five Urallers (temple trustees) representing different Illams, and a suit was brought by one of the Urallers to recover) certain property alleged to have been illegally alienated by three other Uralers to a stranger. The suit was dismissed. At that time the adoption of the plaintiff, the 5th Uralar, entitling him to the uraima right was not recognised by the other Uralars and he succeded in establishing it only later. When the 5th trustee who had not been a party to the former suit brought a suit for the same purpose, it was held that the decree in the former suit was a bar to the second suit, on the ground that he must be deemed to claim under the plaintiffs in the former suit within the meaning of Section 13, Explanation V, corresponding to the present Section 11, Explanation VI of the Code of Civil Procedure. The decision in Jherula Das v. Jalandhar Thakur I.L.R.(1912) Cal. 887 is again authority for the position that decree against shebaits in honest suits bind the successors. The reason, it is observed in that case, is that shebaits with their predecessors and successors form one continuous representation of the idol and consequently subsequent shebaits are regarded as the same persons in law as their predecessors. In Veerabhadra Varaprasada Rao v. Vellanki Venkatadri : (1900)10MLJ114 it was held that in a suit for the income of a hereditary office a preceding office holder fully represents his successors in the matter of res judicata and limitation. In Aft. Moti Bala v. Debi Satyanand : AIR1930All348 it was held that, with regard to endowed property, the successor in management of the endowed property may be considered as a legal representative of the prior manager of the same endowed property. The Judicial Committee observed in Propsunno Kumari Debya v. Golab Chand Baboo (1874) L.R. 52 IndAp 145 that it appears to be right and reasonable that judgments obtained against a former shebait in respect of debts so incurred should be binding upon succeeding shebaits, who, in fact, form a continuing representation of the idol's property.
37. Indubitably the defendants in the former suit asserted exclusive right to the trusteeship in the male line of the founder for the benefit of themselves and their successors. There was community of interest in them. It is the constitution of the trusteeship that was put in issue. It was not any personal or individual right of any particular trustee that was fought, but the true character of the devolution of trusteeship and its validity, if it should interpreted in the manner claimed by the plaintiff in the former suit. To decide the scope of the former litigation, the Court has to see the substance of the representation of the parties in the former suit whether the contest was on a larger question affecting not only the parties on record but also the interest or estate they could and did represent and whether the adjudication was on the larger issue. Thus examined, it is the larger question about the scheme of succession affecting the persons on record and their successors that was put in issue.
38. The only ground on which the binding nature of the prior decision is questioned is that the present plaintiff was not brought on record in the former suit, when pending the appeal his father died. The present defendants 2 and 3 as well as their mother alone were added as legal representatives of the deceased father. The trial Count negatived the applicability of the rule of res judicata substantially on the grounds that the plaintiff had not been impleaded as party to the former suit, that defendants 2 and 3 and their mother were added in the appeal only as legal representatives of the deceased father and not as co-trustees, that none of the defendants in the suit were described as trustees;, that the suit itself was not one against the trust, that the present appellant was agitating only his personal right to be a co-trustee against others who disputed that right, and that so in the circumstances the prior suit cannot be considered to be a representative suit, for the decision therein to bind the trust or the trusees. The trial Court's reading of the scope of the former suit is manifestly erroneous. It has overlooked that the issue in contest was as to the mode of devolution of the office of Dharmakartha and its validity, the then plaintiff claiming that descendants in the female line also were entitled to function as trustees along with descendant in the male line. The then plaintiff was descendant in the female line and the original defendants included all the persons who claimed to be trustees in the male line and were legally interested in opposing the claim.
39. A legal representative is defined in Section 2 (11), Civil Procedure Code, as meaning a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. The estate involved in the case is the office of trusteeship, and, according to the plaintiff, the then 5th defendant's interest in the office devolved on him and his two brothers. Their Claim to the trusteeship is as heirs to their father, from and through him. Their father succeeded in the trial Court on that basis and pending the appeal died. The contention for the plaintiff is that the failure to implead him also as legal representatives makes the decision in the case ineffective against him. The real question is, was the estate of the deceased properly and sufficiently represented on his death, to bind the successors to his estate. The representation of the estate of the deceased which vests in his heirs in a pending action is part of the law of procedure. Order 22, Rule 1 and Rule 4 are the relevant provisions. Rule 10 may also be read in this context. The rights which the deceased man can no longer exercise or assert and his position in the suit which he can no longer maintain in propria persons he exercises and asserts and fulfils in the person of the living substitute in the action.
40. It is now firmly established that the estate can be represented in an action even when some of the heirs are without fraud or collusion omitted to be brought on record. In Daya Ram v. Shyam Sundari : 1SCR231 , the principle is thus set out by the Supreme Court:
The almost universal consensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and bring them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the deceased and that a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record.
This principle has been reiterated by the Supreme Court in Mohd. Sulaimar v. Mohd. Ismail : 1SCR937 , where a decree was obtained against only some of the heirs. Citing the above passage from Day a Rani's case : 1SCR231 , the Supreme Court remarks that, if after bona fide enquiry some but not all the heirs of the deceased are brought on record, the heirs so brought on record represent the entire estate of the deceased and the decision of the Court, in the absence of fraud or collusion, binds those who are not brought on record as well as those who are impleaded eo nomine. In discussing the principles, the Supreme Court quoted with approval the observations of Madhavan Nair, J., In Chaturbujadoss Kushaldoss & Sons v. Rajamanicka Mudali : AIR1930Mad930 . In that case a debtor died leaving a will bequeathing his estate to his nephew subject to certain dispositions. In ignorance of the will, and bonafide believing that the widow was the proper legal representative, a creditor of the deceased brought a suit against her alone and obtained a decree ex parte for; satisfaction of the debt out of the husband's estate, and satisfied his claim by sale of certain items of the estate in her hands. A nephew of the deceased who was the residuary legatee under the will sued to set aside the decree and sale in execution there of. In the circumstances, the learned Judge observed:
Prima facie a decree will bind only the parties to it or those claiming through them, but there are exceptions to this rule. The Courts have held that in certain circumstances when one who is not the true legal representative of a deceased person is impleaded as his legal representative, then a decree passed; against him in his character as the legal representative of the deceased would be binding on the true representative though he is not a party to it. The suit may have been instituted against the wrong legal representative at the very commencement or the wrong legal representative may have been brought on record during the pendency of the suit or after the decree and for purposes of execution.
It was held in that case by this Court that, as the creditor bona fide believed that the widow was the proper legal representative and got his decree without any fraud or collusion with her, and as; she was then interested in defending the estate and sufficiently represented the estate, the decree was binding on the nephew.
41. Again in Dolai Maliko v. Krushna Chandra : AIR1967SC49 , where on the death of one of the appellants some only of his heirs came on record, it is held by the Supreme Court that, unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceeding, there is no reason why the heirs who have applied for being brought on record could not be allowed to represent the entire estate, including the heirs not brought on record. Reference may also be made to Jagdish Chandra v. Kameswar Singh : AIR1953Pat178 . In that case shebaits representing the deity were parties to the suit when it was institute. One of the shebaits was an executrix of the estate of a deceased shebait. She ceased to be a shebait when the heirs of the deceased came of age. The heirs did not apply for substitution. On the question of proper and effective representation of the deity, the Patna High Court observed:.there is nothing to indicate that the suit as instituted was not properly framed and all the shebaits representing the deity were not parties to the suit. In that view of the matter it is unnecessary for me to examine the various decisions cited by the appellants to support the contention that all the 'shebaits' of the deity should have been impleaded as parties to the suit, because otherwise the suit could not proceed. These decisions, in my opinion, are no authority for this wide contention of the appellants; but in the present case I have already shown that all the shebaits representing the deity were parties to the suit when it was instituted and the Suit could not be said to be bad for defect of parties. If the 'shebaiti' interest devolved on these heirs during the pendency of the suit, it was open to them to apply for being added as parties, and they could not take advantage of their own omission to do so, because the entire 'shebaiti' interest was represented in the suit as originally framed.
In the present case there is no question that the former litigation was bona fide and fairly fought out: nor can the plaintiff in the former suit be charged lack of bona fides in not impleading the present plaintiff as a legal representative. The 5th defendant died in October, 1940 leaving surviving his widow and two minor defendants 2 and 3. The plaintiff, the posthumous son, was born on 5th December, 1940. The application C.M.P. No. 7089 of 1940 to bring on record the present defendants represented by their maternal uncle as guardian -ad-litem as legal representatives was ordered on 21st January, 1941, It is the 1st defendant's case that the present plaintiff was not even born at the time the application was filed. It must be so having regard to the date of his birth and the date on which the application was ordered. On the application or even afterwards, no representation was made to Court that another son had been born posthumously and he must be made a party to the appeal. All the persons whom the plaintiff in the former suit believed as persons interested in the office of Dharmakartha had been impleaded. Learned Counsel for the plaintiff before us frankly stated that the bona fide nature of the former contest is not questioned. No want of diligence or lack of bona fide enquiry is attributed to the plaintiff in the former suit in not impleading the present plaintiff; nor is it said that the present plaintiff had any special case of his own. The questions involved were pure questions of law and eminent Counsel have appeared for the parties.
42. In the result, however looked at, whether as a case of representation of the office of trusteeship by the parties on record in the earlier case, or as a case of representation of the estate in which the plaintiff is interested, by the persons actually brought on record as legal representatives, either way, the decision on appeal in the former suit which has become final would bind the plaintiff and bar him from re-agitating the issues.
43. It follows that both on the merits and on the principle of res judicata the plaintiff's claim has to fail. The judgment and decree of the Subordinate Judge of Nagapattinam are therefore set aside. The suit shall stand dismissed with costs. The appeal is allowed with costs.