Krishnaswami Ayyangar, J.
1. This appeal arises out of a suit instituted by the appellant Manathunainatha Desikar for an injunction against the respondents restraining them from interfering with his possession of the suit properties jointly along with the respondents. He also prayed that he might be put in joint possession of the suit properties; if that course was found necessary. The properties in respect of which these reliefs were asked admittedly belong to a Siva temple situate in Jaffna in Ceylon founded by Vaithilinga, an ancestor of the parties in or about the year 1790. It would seem that this temple dedicated to Sri Viswalinga Vaitheeswaraswami owns extensive properties in Jaffna besides the properties in suit which are situate in the village of Meppalam in Mannargudi Taluk, Tanjore District. Before the year 1900 these lands were the property of one Thangathachi who held apparently a widow's estate. But in that year there was an agreement entered into between her on the one hand and Subbayya, the then trustee of the temple, on the other, by which it was arranged that the Meppalam lands should be made over to the temple in exchange for the temple lands in another village known as Raghunathapuram. This agreement is Ex. 14 dated 22nd April 1900 and was immediately given effect to, though a formal deed of exchange (Ex. g) was only executed on 16th October 1909. It may be mentioned that the lands in Raghunathapuram were gifted to the temple either by Gopala Chetti, a son of the founder Vaithilinga Chetti or by him and his wife some time before 1840. The deeds of gift are not available, but nothing turns upon their absence so far as the present case is concerned inasmuch as it is conceded the temple has an indisputable title to the Meppalam lands now in suit.
2. The appellant claimed to be entitled to joint possession of the lands in suit as a trustee of the temple along with defendants 1, 4 and 5. All of them are descendants of the original founder Vaithilinga, but while these defendants are in the direct male lineage, the plaintiff-appellant is the grandson of Mana-thunainatha who though born in the family of Vaithilinga had been adopted away into a different family. The adoptive mother however was a daughter born in the family. The geneological table annexed to this judgment shows the members of this family and their descent from the common ancestor Vaithilinga, who it was that originally founded the temple and endowed it with most of its properties. The appellant is No. 17 in this table and his grandfather Manathunainatha, No. 14, was adopted to Kandaswami Thevar, the husband of Kanakaratnam, No. 13. The appellant is accordingly the great grandson of Kanakaratnam who was a daughter of one of the founder's grandsons, namely, Subbayya.
(1) VAITHILINGA CHETTIAR (d. 1828)
(2) Gopala Chettiar (d. 1840) (3) Kandappa (d. 1835)
| | | | |
(4) Vaithilinga (5) Selvanayagam (6) Subbayya (7) Annapoorni |
(d. 1851 issueless) (d. 1859) (d. 1872) |
| | |
(8) Dorayya (d. 1894) | |
| | |
(9) Thailammai | |
| | | | |
(10) Somasundara (11) Vaithinatha (12) Ponnuthurai (13) Kanagaratnam=Kandasami |
= Rajamani (d. issueless) | (Adopted Mana- Thevar |
| | thunainatha) |
| Valambal |
| | |
(14) Manathunai' (15) Subbayya |
natha (d. 1909) (d. 1902) |
adopted to | |
Kanagaratnam | |
| | |
(16) Kandasami | |
Desikar | |
(d. 1925) -------------------------------------- |
| | | | |
| (18) Somasundara (19) Gopala (deft. 1) (20) Ramamritha |
| (deft. 2's deceased died (deft. 3's |
(17) Manaithunai- husband deceased husband) |
natha (plaintiff) d. Oct. 1936) |
| | | | |
(21) Muthu (22) Subbayya (23) Viswanatha (24) Ponnusami (25) Muthukaya-
Chidambara (d. issueless) (d. issueless) | roganam
(d. issueless) | |
---------------------------- (30) Vaithilinga
| | | |
(26) Thangachi (27) Kandappa | |
(daughter) | |
| | |
(28) Ponnusami (29) Vaithilinga |
(deft. 4 died (deft. 5 died after appeal. |
after suit) his widow Legal Representatives |
is deft. 6 are respts. 6 to 8) |
(31) Swaminatha (32) Somasundara
(died issueless) (died issueless)
3. Two main questions, and only two, appear to have been raised and considered in the trial Court. The first of them is whether the appellant is entitled to claim the office of trusteeship under the scheme laid down by the founder in Ex. A dated 20th April 1805. This instrument appears to be the last will and testament of (1) Vaithilinga, the father. The document is in old colloquial Tamil. Some of the words used are not literary and are in common use only among the illiterate. The syntax also is difficult to follow. In spite of these defects, it is not difficult to ascertain the intention of the testator. In the opening words of the document the testator directs that the temple and its properties and the charities connected therewith should be managed and supervised by his sons: (2) Gopala Chettiar and (3) Kandappa Chettiar, (and) the descendants in the female line from generation to generation so long as (any member of) the family should exist. There is no mention here of the descendants in the male line. But in the closing words, the testator makes his meaning plain by stating that his sons, his descendants in the male line and his descendants in the female line should manage the charities actively and diligently so as not to allow the spiritual benefit earned (for the family) to depart from them. According to the respondents, the effect of the document is this; that the testator gave a life trusteeship to his own sons, Gopala and Kandappa, and after them he directed the office to devolve upon his descendants in the male as well as in the female line. In so far as the will gave the trusteeship to the two sons during their lives, the provision is said to be valid, but the course of devolution of the trusteeship thereafter among his descendants as laid down in the will is attacked as bad in law under the principle of the well-known decision of the Judicial Committee in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377. The argument is that the will purports to create a line of succession opposed to the ordinary rules of Hindu law and involves a gift of the office of trusteeship to unborn persons. Before discussing this question which was pressed with considerable force and learning it is necessary to clear the ground by disposing of certain other contentions based upon the views expressed by the trial Judge.
4. The learned Subordinate Judge is of opinion that females are wholly excluded whether born in the family or brought into it by marriage. With this conclusion we find ourselves in agreement. But the learned Judge goes further and says 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 excludes the more remote. He has accordingly disallowed the plaintiff's claim to the trusteeship both on the ground that his grandfather having been adopted away from, the family did not get any part of the property of the founder's family and the plaintiff therefore inherited none; and also on the ground that he is lower in descent than the contesting defendants 1 and 5. We are unable to find any basis in the will to support the learned Judge's conclusion. The testator has said nothing from which it can be said that he intended those alone among his descendants to take the trusteeship, who inherited the family property. Nor is there any support to be found in Ex. A for the proposition that the testator intended the nearer amongst his descendants to exclude the more remote. On the contrary, the expressed intention is that the divine grace earned for the family should be retained in the family and shared by his descendants both in the male and the female lines and for that reason it would seem that he gave the management to all of them. In other words, the responsibility of the management was to be. shared in order that the spiritual benefit may also be shared. It follows that nothing could have been farther to the testator's mind than the idea of excluding any of his descendants from participating either in the trusteeship or in the benefit to result therefrom.
5. But the more important question which arises for consideration is that which relates to the applicability of the principles in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 to the scheme of management laid 'down by Vaithilinga, by which the office of trusteeship was conferred on his descendants both in the male and the female lines. Regarded as a scheme of succession regulating the descent of property, it involves no doubt the recognition of equal and simultaneous rights in both classes of heirs, and to that extent it is opposed to Hindu law. But is the office of the manager or Dharmakarta of a public temple, property in the legal sense of the word? Restrictions against transfers of property in perpetuity and restrictions on the liberty of the individual to direct its devolution in a manner inconsistent with the ordinary rules of law, have their real origin in public policy. The principle is explained by the Judicial Committee in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 thus:
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, recognized) by the State, not merely for the benefit of individuals, but for reasons of public policy. (Domat 2413).
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 takes place as the law directs. This was well expressed by Turner L.J. in Soorjeemonee Dossee v. Denobundo Mullick (1857) 6 M.I.A. 526 'A man cannot create a new form of estate or alter the line of succession allowed by law for the purpose of carrying out his own wishes or views of policy'.
The second principle of Hindu law also recognized by the Board in this case is that a gift to persons yet unborn is absolutely void. The statutory modifications of this rule are not material in the present case and do not call for notice. It would follow as a result of the Tagore case that if the office of trustee or manager of a temple can in law be regarded as property, the scheme of the testator, whether taken as laying down a rule of devolution or conveying the office of trusteeship to descendants yet unborn, must be held to be bad. 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 can come in the way of 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} 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 connexion 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. Before we proceed to consider this question it is desirable to joint out that from early times observations occur in the reported cases which seem to recognize in the author of a religious or charitable trust absolute freedom to lay down his own rules of succession and management unhampered by the general law. In Shah Ghulam Rahimatullah Sahib v. Mohamed Akbar Sahib(1976) 8 M.H.C.R. 63 which related to the office of Sujjadah of a mosque, Sir W. Morgan C.J. in delivering the judgment of the Court is reported to have observed:
It was hardly disputed that, in cases of this land, the determination of the question of the succession 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 Greedharee Doss v. Nundokissore Doss [1966)11 M.I.A. 405 the Judicial Committee approved of the following proposition of law laid down by Sir Barnes Peacock as Chief Justice of the High Court of Bengal:
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.
This statement was again quoted with approval by the Board in Rajah Vurmah Valia v. Ravi Vurmah Kunhikutty (1976) 1 Mad. 235 where the actual question which fell to be decided related to the validity of a transfer of the office of trusteeship. The Karnavans of four Malabar tarwads were under the constitution of the particular institution, namely, Tracharmana Pagoda, its Urallars and the question was whether they could lawfully alienate their right to manage the pagoda; The High Court held that the alienation was invalid. The Privy Council affirmed the decision. The following observations are of particular interest in connexion with the juridical character of the office of trustee. The Board 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.
The Privy Council would here seem to indicate that the several trustees who held the office constituted a species of corporation: (see Viayapurnatirtha Swami v. Vidyanidhi Tirtha Swami (1904) 27 Mad. 435 on this aspect) to which had been entrusted the duty of management by the founder. It is clear in this case that the founder was deemed to have prescribed a method of devolution under which the senior-most members for the time being of four families should be the managers. If this is regarded as a rule of devolution with respect to a right in property, it certainly goes against Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 and it is re. markable that nobody ever thought of raising the objection. In our view the decisions referred to above lend support to the appellant's contention that the law gives to the author of public religious trust, the privilege of prescribing, if he is so minded, a line of succession to the office of the manager, without conforming to the law of inheritance. This principle, as we have indicated, has its foundation in the distinction that exists between heritable property over which the owner has only a restricted power of disposition and a mere office which confers on the holder a bare right of management without any right to a beneficial interest in the property committed to his charge. A hereditary office being something which is capable of being inherited, necessarily involves the idea of property and must accordingly be left to be governed by the general law of inheritance. One test of property as distinguished from a mere office may be said, to consist in this : that while the former is partible, the latter is not. We are conscious that the decisions of the Privy Council in Ramanathan Chetty v. Murugappa Chettiar (1906) 29 Mad. 283 might be interpreted as recognising the partibility of the office of managership of a public temple. But there the office was admittedly hereditary, and was therefore a species of heritable property to which Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 would be applicable : vide Gnanasambanda Pandarasannadhi v. Velu Pandaram (1900) 23 Mad. 271. Whatever the true facts were, the Judicial Committee have since supported the decision in Ramanathan Chetty v. Murugappa Chettiar (1906) 29 Mad. 283 on the ground that it related to private trust. In Sethuramaswamier v. Meruswamier (1917) 41 Mad. 296 where the lands attached to a religious office held by the head of a mutt was held impartible, the Board observed:
With regard to what are called private charities, such as endowments for the support of the family idol, the law, as laid down by various decisions in India, and apparently accepted in one case by the Privy Council, Ramanathan Chetty v. Murugappa Chettiar (1906) 29 Mad. 283 is that, if there is no contrary provision in the original grant, the right of management passes to the natural heirs of the original grantee, and, if there be no other arrangement or usage and no scheme settled by the Court, will be exercised by the managing member of the family before partition, or in turn by the several heirs after partition.
But their Lordships' attention has not been drawn to any case in which these decisions as to management have been applied to lands which constitute the endowment of such a charity as those in question in this suit.
It follows that where the office is not hereditary, each succeeding trustee takes the office not as the heir of his predecessor but pro formam doni, as a direct nominee under the rules of succession laid down or presumed to have been laid down by the founder. The respondents' contention that Vaithialinga's scheme of succession except in so far as his sons were concerned failed on account of Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 is sought to be supported mainly on the authority of a Full Bench decision of the Calcutta High Court in Manohar Mukerji v. Bhupendranath Mukerji A.I.R. l932 Cal 791. Before referring to this case it is desirable to draw attention to the conflict of view which had prevailed in the same Court, with a view to the understanding of the precise point of the controversy. In Gopal Chunder Bose v. Kartick Chander Dey (1902) 29 Cal. 716 a testator after making various gifts to members of his family gave and bequeathed a sum of Rs. 20,000 for religious worship to be carried in a pagoda established at his residential house and on land contiguous to it. He made the following provision for the management of the pagoda:
The superintendence of the pagoda I entrust to my wife and after her death to hold it by my son Gour Mohan Dey, after his death by my daughter and her husband Nando Doolai Bose, and their male children successively.
Regarded as a direction dealing with property rights the provision for management is undoubtedly opposed to the principle in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 and was accordingly declared invalid. The High Court observed as follows: 'It was contended before us for the respondent that we are not dealing with an actual bequest or gift of immovable property, but only with the appointment of persons to superintend and manage the pagoda. It would appear, however, from the observations of their Lordships of the Judicial Committee of the Privy Council in the recent, and as yet, unreported, case of Gnanasambanda Pandarasannadhi v. Velu Pandaram (1900) 23 Mad. 271 delivered on 19th December 1899, that the ruling in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 is applicable to a hereditary office and endowment as well as to other immovable property.' The case was taken up to the Privy Council, and was disposed of by Lord Macnaghten in a single sentence in which the decision of the High Court was approved as having given a perfectly correct interpretation of the will, no other interpretation being possible. The decision had reference, it must be added, to a family trust, as is indeed the case with all the Calcutta decisions to be referred to later and its effect is only to 'emphasise the applicability of Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 to hereditary offices. In Ramabrahma Chatterjee v. Kedar Nath Banerjee : AIR1923Cal60 it was found that the shebait-ship of a temple vested in the descendants of the founder in the male line, but his descendants in the female line had always participated in the bhog offerings made to the idols. The right of the latter having been denied by the former, a suit was brought to enforce the Tight to participate in the bhog offerings. Sir Asutosh Mookerjee J. who delivered the judgment of the Court, stated the question which arose for consideration as follows:
Whether it was competent to 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.
This question was answered in the affirmative. The following observations of the learned Judge appear to be apposite in the present connexion:
In the words of Lord Mansfield in St. Johns 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 Hardwicke had ruled in Green v. Rutherford (1750) 1 Ves. Sen. 462 that the founder may provide for the Government and administration of his creature and the application in perpetuity of the revenue; see also Philips v. Bury (1694) 1 Shower 360 which was ultimately decided by the House of Lords : Philips v. Bury (1694) Shower P.C. 35 and contains an elaborate review of the rights of founders of charitable and religious trusts. This is subject to the reservation that a founder may not, unless special power has been reserved in this behalf, after the constitution of the corporation, vary the trusts or modify the application of the endowment or its revenues.
Philips v. Bury (1694) 1 shower 360, which is a decision of the House of Lords is phrased in the legal technicalities, of the, ancient English law. But the following sentences which sum up the position can be understood:
But private and particular corporation 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 Corporations, 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 them by the founder.
The idea that successive trustees of a religious or charitable trust form a kind of corporation is here expressed and it was perhaps the self-same idea which was echoed by the Privy Council in Rajah Vurmah Valia v. Ravi Vurmah Kunhikutty (1976) l Mad. 235 to which we have already referred. In Mathuranath Mukherjee v. Lakhinarain Ganguly : AIR1924Cal68 a testator dedicated his immovable property to Ishur Debseva, and appointed his widow to act as shebait and gave her power to appoint a successor. The widow appointed a great nephew of the testator as shebait, but the appointee was a person not born during the lifetime of the testator. Though such an appointment would be void on the principle that the donee must be a person in existence at the death of the testator Bai Motivahu v. Bai Mamubai (1997) (vide 24 I.A. 93) the Court upheld the appointment on three grounds : (1) A trusteeship with power to appoint a successor is well known to Hindu law, (2) that Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 itself recognised the possibility of exception 'for which authority may be found in Hindu law or usage' and such an exception is implicit in the rule which allows the founder of a religious trust to lay down a general rule of succession to the managership and (3) it was competent to the testator to empower a civil Court to appoint as successors from time to time persons not born. This view found favour in Sreepathi Chatterjee v. Krishna-chandra Banerjee : AIR1925Cal442 where the Court observed that the rule in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 prohibiting a Hindu from creating a special line of succession unknown to Hindu law does not apply to the ease of appointment of a shebait of a family Thakur, for an appointment to such an office creates no interest in the property. The learned Judge said:
The appointment of a shebait therefore is obviously not a gift of any property to the shebait but it is purely an appointment to an office without, it may be, any remuneration whatsoever.
In Pramathanath Mukerjee v. Amar Chandra Banerjee : AIR1925Cal225 decided a few days later, a Division Bench of the Calcutta High Court consisting of Suhrawardy and Duval JJ. took a different view, but without noticing the decision in Sreepathi Chatterjee v. Krishna-chandra Banerjee : AIR1925Cal442 In this case it appeared that a testator made a gift of certain properties to his family idol and appointed his wife and his three brothers as shebaits of the endowment. As to future shebaitship he made the following provision:
When you all have ceased to be, he who shall be of the Hindu persuasion and senior in age amongst your legal heirs, shall have the management conferred upon him.
The will also contained a declaration that the testator's brother's possession of the shebait-ship and property was subject to the rights of the members of the family of the original shebaits to reside in a certain house, to repair it, if necessary to get their maintenance out of the offerings to the idol and to enjoy certain other rights. There were no emoluments or interest in the property as such attached to the office of shebait. The learned Judges held that the provision in the will giving the she-baitship to the senior in age among the legal heirs of the testator failed as to those who were not alive at the death of the testator. The decision was rested on the authority of the Privy Council in Gopal Chunder Bose v. Kartick Chander Dey (1902) 29 Cal. 716 and also upon the decision of the Calcutta High Court in Kunjamani Dassee v. Nikunja Behari Das A.I.R. 1916 Cal 20 : C.W.N. 314. These cases proceed on the principle of law enunciated in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 extended to a hereditary office by Gnanasambanda Pandarasannadhi v. Velu Pandaram (1900) 23 Mad. 271. The Court declined to draw any distinction between a bare trusteeship and a trusteeship carrying emoluments and refused to accept the argument that Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 in so far as it negatived the validity of a gift to an unborn person is not applicable to a case where a bare right of management and no property is involved. In view of the conflict of decisions the question was referred to a Full Bench of three Judges in Manohar Mukerji v. Bhupendranath Mukerji A.I.R. 1932 Cal 791. The case law was considered at great length by the Court and it was laid down that Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 applied to the office of a shebait. The headnote of the case runs as follows:
The founder of a Hindu debattar 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 the shebaiti is a grantee or donee of property and his right to succeed to the office is subject to the rules 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 shebait 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.
The correctness of the Full Bench decision was later affirmed by the Privy Council in Ganeshchunder v. Lal Behary where a Hindu testator after directing the payment of certain legacies, had given by his will the residue of his estate to his executors and trustees upon trust to pay the balance of the income of the estate to the shebaits for the time being of the Thakurs established by him and located in his family dwelling house. He then laid down the following rule for the succession to the office of shebaitship:
I appoint my sons Kartick Chunder Dhur and Ram Chunder Dhur to be the shebaits of the said Thacoors and I direct that upon the death, retirement or refusal to act of any of them or any of the future shebaits the then next eldest male lineal descendant of Kartick Chunder or Ram Chander Dhur shall act as shebait in place of the deceased or retiring shebait or shebaits refusing to act as such-it being my intention that the eldest for the time being in the male line of my said sons Kartick Chunder Dhur and Ram Chunder Dhur shall always remain as joint shebaits and in the event of the death or refusal to act of any shebait the then next male member of the branch to which the shebait dying or refusing belonged shall act as a shebait in his place or stead.
It was agreed before the Board that there was a valid gift for life to the testator's sons Kartick and Ram; but the rest of the clause was attacked as invalid as laying down a line of succession not permissible under Hindu law. The Privy Council, Lord Thankerton, observed as follows:
Their Lordships apprehend that the law applicable to the present case is well settled, and that the question is one of construction of the will. The well-known Tagore case : Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377, laid down two separate principles : (a) that a person capable of taking under a will must be such a person as could take a gift inter vires, and therefore must either in fact or in contemplation of law be in existence at the death of the testator, and (b) 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 thereunder as heir to the estates described in the terms which in English law would designate estates tail. As Lalbehary and Netye (two of the grandsons who had been born before the testator died) were in being at the testator's death, the first of these principles presents no difficulty. In Gnanasambanda Panda-rasannadhi v. Velu Pandaram (1900) 23 Mad 271 it was held by this Board that the second ruling in the Tagore case: Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 above referred to is applicable to an hereditary office and endowment as well as to other immovable property. This decision was followed in Manohar Mukerji v. Bhupendranath Mukerji A.I.R. 1932 Cal 791.
It was accordingly held that the provision of the will relating to the holding of the office of shebaitship after the respective deaths of Kartick and Earn failed constituting, as it did, an invalid line of succession which was not permissible under the Hindu law. The rule applied here to the office of shebait is the same as is applicable to immovable property. In Gnanasambanda Panda-rasannadhi v. Velu Pandaram (1900) 23 Mad. 271 the Privy Council was called upon to consider whether with respect to the hereditary office of the trusteeship of a public religious endowment each successive trustee takes a life estate directly under the grant made or presumed to have been made by the founder when he established such a hereditary office, or whether the succeeding trustee steps in as the heir of his predecessor in office. It was held that the Hindu law did not permit the creation of successive life estates in the endowment on the principle of the rule in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972)9 Beng. L.R. 377 and they observed,
In their Lordships' opinion the ruling in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 is applicable to an hereditary office and endowment as well as to the other immovable property.
It follows that an hereditary office and immovable property were regarded by the Judicial Committee as standing on the same footing so as to prevent the founder in the one case and the owner in the other from prescribing a rule of succession contrary to Hindu law, for instance, by the creation of successive life estates. The endowment in this case was undoubtedly of the nature of a public religious trust attached to the temple at Tirukkadayur. The trustee for the time being was given no beneficial interest at all in the endowment and his duty was to manage it and apply the income for the benefit of the temple without any remuneration for himself.
6. It must therefore be taken as settled that the 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 Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 are applicable. But we consider that the position of a shebait with reference to the maintenance and management of family trusts such as those in vogue in North India is essentially different from that of a dharmakarta or manager of a public temple in this part of the country. Unlike the shebait, the manager has no beneficial interest whatsoever in the endowments and is merely the holder of an honorary office. There are no (emoluments attached to the office and he has no rights and no privileges with reference to the 'distribution of the income as he is under a duty to adhere strictly to the established mamool obtaining in the particular institution. In some temples he receives honours in the shape of garlands, but this is a mere mark of respect commonly shown to others also. The Pull Bench (Manohar Mukerji v. Bhupendranath Mukerji A.I.R. l932 Cal 791 of Calcutta High Court in coming to the conclusion that shebait-ship is property and not a mere office, laid emphasis on the fact that the manager or custodian of the idol of the institution is in almost every case given the right to a part of the usufruct, the mode of enjoyment and the amount of usufruct depending on usage and custom, and has a very large discretion in the distribution of prasad and matters of that character. The learned Judges observe at page 494,
Shebaitship, in its true legal conception, involves two ideas; the ministrant of the deity and its manager; it is not a bare office but an office together with certain rights attached to it. A shebait's position towards the debattar property is not similar to that in England of a trustee towards the trust property; it is only that certain duties have to be performed by him which are analogous to those of trustees.... The shebait deals with the property in his custody or management as if he has some property, though not the full rights of property, in it, the legal property vesting in the idol.
A careful analysis of the reasoning of the Full Bench shows that it is the possession of a right in the. property of the endowment, which formed the basis of the judgment and led to the view that the shebaiti office was property. The argument before the Pull Bench and in particular the following passage in the judgment sufficiently indicates that if the shebaiti office could be regarded as an office pure and simple, the rule in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 would have been held inapplicable. The alternatives before the Court were thus expressed at page 466:
The questions referred to the Full Bench, therefore, mainly depend on the question whether shebaitship in Hindu law is property of any kind, to which Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 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 any order of succession, which may have the effect, so far as the founder is concerned, to use the words of Turner L.J. in Soorjeemonee Dossee v. Denobundo Mullick (1857) 6 M.I.A. 555 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.
The Full Bench of the Calcutta High Court has refused to draw a distinction between private and public trusts in deciding whether the shebaiti office is property or not. But this point does not appear to have arisen for decision, and the view expressed was merely obiter. It is true that the Privy Council has given its approval to the conclusion there reached, but this does not mean that their Lordships affirmed even the obiter dictum aforesaid. The fact is that in all the Calcutta cases to which our attention has been drawn it would seem that the shebaiti office which was in question related to a private trust in favour, of a family Thakur. We are also conscious that if the office of a manager or dharmakarta is hereditary it must be deemed to be a species of property heritable and descendible according to Hindu law, and one to which the principle in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377 is applicable as ruled in Gnanasambanda Panda-rasannadhi v. Velu Pandaram(1900) 23 Mad. 271. But a non-hereditary office must be considered with special reference to the particular incidents attaching to it; and if those incidents do not confer on the trustees an interest in the endowment, but only lays him under a duty to manage, it is impossible to maintain in the absence of definite authority that the office is property in any sense of the term.
7. That the office of the shebait is essentially, different in character from that of the manager or dharmakarta of a temple in South India has been laid down by the Privy Council in plain language in Srinivasachariar v. Evalappa Mudaliar A.I.R. 1922 P.C. 325. Their Lordships observed that the term 'dharmakarta,'
is in truth the legal equipollent to trustee. The position of dharmakarta is not that of a shebait of a religious institution, or of the head of a mutt. These functionaries have a much higher right with larger power of disposal and administration, and they have a personal interest of a beneficial character.
In the very learned judgments delivered in Viayapurnatirtha Swami v. Vidyanidhi Tirtha Swami (1904) 27 Mad. 435 the distinction between those functionaries is explained. But a dharmakarta is literally and no more than the manager of a charity, and his rights, apart 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.
A correct description of the position of the dharmakarta of a temple approved by the Privy Council in the case just cited will be found in the judgments of Subramania Ayyar O. C.J. and Bhashyam Ayyangar J., in Viayapurnatirtha Swami v. Vidyanidhi Tirtha Swami (1904) 27 Mad. 435. Subramania Ayyar O. C.J. said:
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 Juggodumba Dossee v. Puddomoney Dossee (1975) 15 Beng. L.R. 318 may not improperly be looked upon as subject strictly to the liabilities of a trustee.
8. Bhashyam Ayyangar J. expressed the same idea, perhaps in more detail, when he said:
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 dharmakartas are mere trustees for the carrying out, or executing of such trusts.
Further light is also thrown by the observations of the Privy Council in Ramanathan Chetty v. Murugappa Chettiar (1906) 29 Mad. 283 where their Lordships describe the office of a temple dharmakarta in the following terms:
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 appertaining 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 had become vested by descent in more than one person.
This, of course, was said with reference to a hereditary office; but whether hereditary or not, the position is that of a bare trustee. It is scarcely necessary to point out that in the case of a non-hereditary dharmakarta office a succeeding dharmakarta does not inherit to or derive his title from the predecessor. In Mohamed v. Ganpati (1990) 13 Mad. 277 expressly approved by the Privy Council in Vidhya Varuthi Tirta v. Baluswami Iyer A.I.R. 1922 P.C. 123 the question arose whether a suit by a succeeding dharmakarta for recovery of possession of land leased by his predecessor in office was barred by limitation. In that connexion the Court observed:
In the present case, though the plaintiff may in point of time have succeeded the dharmakarta who made the alienation, he does not derive his title from that dharmakarta 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 dispositions made by their predecessors Pappayya v. Ramanna (1984) 7 Mad. 85 Jamel Sahib v. Murugayyaswami (1986) 10 Bom. 34 Modho Kooery v. Tekait Ram Chunder Singh (1983) 9 Cal 411 and it is equally clear that time runs against the successor who challenges his predecessor's disposition, not from the date of the disposition, but from the date of the predecessor's death, when only the successor became entitled to possession.
This principle, it may be remarked, has been given effect to by the later decisions of the Privy Council and has now been incorporated in the Limitation Act by the addition of Article 134B. It seems to us that Vaithilinga's scheme of succession vesting the management in his descendants both in the male and the female line has not been shown to be illegal or invalid. We are naturally averse to the creation of a new restraint or the extension of the old one, and we feel that that is precisely what we shall be doing if we bring offices pure and simple involving no rights of property whatever, within the rule in Jatindra Mohan Tagore v. Ganendra Mohan Tagore (1972) 9 Beng. L.R. 377. We are not called upon to say whether the management prescribed by Vaithilinga is wise, or will make for the efficient administration of the temple and its endowments. There may be a good deal to be said against it from this aspect of the matter, but the question before us is quite different. Management by a miscellaneous group without the necessary cohesion is almost certain to lead to confusion and neglect, and may result in the frustration of the objects of the founder. The remedy for the evil not perhaps foreseen by the author, is to approach the Courts for the framing of a scheme for placing the temple administration under proper management. But till then the existing scheme with all its defects and all its anomalies has to be recognised, the result being that the appellant is, and is entitled to be one of the lawful managers of the suit properties along with the representatives of Vaithilinga in the male line.
9. The appellant has sought to rest his case on an alternative ground also, namely, that he has acquired a hereditary right of co-trustee-ship along with the contesting defendants by adverse possession. This question is not specifically raised in the plaint, nor is it covered by any definite issue. Apart from this objection, the evidence is not such as to warrant a finding of a prescriptive title in the appellant. It is true that from about the year 1886 the appellant's predecessors-in-title are shown to have taken part in some of the transactions relating to the temple at Jaffna and the lands here. In view of the close relationship of the parties and the other circumstances proved in the case we do not think that we will be justified in differing from the finding of the learned Subordinate Judge that the appellant has failed to make out a title by adverse possession. On the respondents' side it was contended that even on the assumption that the appellant had a right to the trusteeship it had been lost by adverse possession. We consider that the conclusion reached by the learned Subordinate Judge on this part of the case is correct. As observed by him, there is no definite proof of ouster or exclusion which is an essential element of adverse possession as between co-owners. The result is that the materials placed before the Court are not such as to induce us to differ from these conclusions of the Court below. In the result, there will be a decree in favour of the plaintiff for the joint possession of the office of trusteeship and of the trust properties described in the suit and the defendants shall be restrained by a permanent injunction from interfering with the plaintiff's enjoyment of the office of joint trusteeship along with the respondents. The appellant is entitled to his coats here and in the Court below from the respondents.