Kumaraswami Sastri, J.
1. This appeal arises out of a suit filed under Section 92 of the Civil Procedure Code with the previous sanction of the Advocate-General for the settlement of a scheme and for directions for the proper administration of an association called 'The Madhwa Siddhanta Onnahini Sabha' (an association for the uplift of the Madhwa doctrine), which was started in the year 1878 at Chirutanur, also called Tiruchanur, near Tirupati, a sacred place about 90 miles from Madras, and registered under Act XXI of 1860 in the year 1910. [His Lordship held on the evidence that the origin, objects aid the practice of the Sabha were as stated by the plaintiffs in their plaint, and continued:
On the evidence, oral and documentary, I have no hesitation in coming to the conclusion that prior to 1910-11 there vas no precedence given to the Uttarathi Mutt.
2. The next question is whether the resolution of 1912 giving precedence to the Uttarathi Mutt must be held to be binding on the other mutts because it was passed at a general meeting, ft is sought to bring this within Rule 14 of the Memorandum of Association and the Rules and Regulations of the Sabha which I have set out giving the Council power to frame such bye-laws not inconsistent with the rules and regulations as it may consider necessary for the conduct, maintenance, and upkeep of the Sabha and a like power to alter, modify or rescind any such bye-laws so long as such bye-laws are passed at the annual (general meeting of the Sabha. If the matter related merely to the internal management without in anyway affecting the fundamental basis on which the Sabha was Starts fed, the majority decision would bind the minority, he wever galling it may be; but it seems to me that in a case like the present, this resolution is fundamentally opposed the constitution of the Sabha whose very existence depends upon the co operation of the disciples of like various mutts on a basis of equality. I have already shown that this was the dominant policy of the Sabha from its foundation. And the events of 1911 and 1912 have shown he w vital it is aim $he interests of the Sabha that no distinction should be made between the various mutts. I do not think that in a Sabha constituted like the present, it is open to the majority to pass any resolution giving precedence to their own Guru and override the claims of the minority for equal treatment. There can be little doubt that this Sabha, which was founded by the disciples of all the mutts and whose property was acquired by, contributions from all the mutts, possesses substantial property at present, moveable and immoveable. The Annual Report of the year 1920, the year preceding the date of the present suit, shows that Rs. 77,167-14-6 was standing to the credit of the Sabha with its Bankers. This would be in addition to the immoveable properties which the Sabha possesses. The disciples of one mutt though they formed the majority have no right virtually to drive the other members out of the Sabha by passing a resolution which would give their Guru priority.
3. It is argued that if priority is not given to the Uttarathi Mutt Guru, the disciples of that mutt who are in a majority would he t continue to be in the Sabha. But we find from the evidence of Karpur Sreenivasa Rao, D.W. No. 7, that even among the disciples of the Uttarathi Mutt there are many who are prepared to remain in the Sabha in spite of the interdict of the Uttarathi Mutt Guru, if a proper scheme is framed preventing the abuses he refers to.
4. A Memorandum of Objections has been filed by defendants Nos. 1, 3, 5, & and 14, who are disciples of the Uttarathi Mutt, and-the third ground of objection runs as follows:
The lower Court ought to have held that the Memorandum of Association and the rules and regulations of the Sabha clearly contemplate an equal treatment of all Madhwas irrespective of their being the disciples of any particular mutt; and any way a preferential treatment of one mutt is distinctly a violation of the essential object of the Sabha which is to promote the study of Sanskrit and in particular of the Dwaita philosophy of Sri Madhwacharya amongst the Madhwas as a whole.
5. At the hearing, the 5th respondent's Advocate wanted to withdraw from this but the other respondents pressed this objection through their Advocate Mr. Venkatarama Sastri and wanted a scheme to be framed. he wever, this may be, it seems to me that justice has to be done to the parties and mere expediency cannot entitle the Court to deny justice to the majority.
6. It is clear that it is not open to the majority to alter the fundamental principles upon which the association is founded. I may refer to Milligan v. Mitchell (1837) 3 My. & Cr. 72 : 40 E.R. 852 : 7 L.J. (N.S.) Ch. 37 : 1 Jur. 888 : 45 R.R. 218 and Free Church of Scotland (General Assembly of) v. Overtoun (Lord) Macalister v. Young (1904) A.C. 515 : 91 L.T. 394
7. In Milligan v. Mitchell (1837) 3 My. & Cr. 72 : 40 E.R. 852 : 7 L.J. (N.S.) Ch. 37 : 1 Jur. 888 : 45 R.R. 218 it was held that it was not competent to the members of the association to alter 'the fundamental principles upon which the association was formed and destroy the trusts upon which the property was held, but only to altering the laws or making new laws, so far as might be consistent with such principles and trusts.'
8. In that case, a chapel was erected and dedicated exclusively as a place of worship for Presbyterians who conformed to the discipline and doctrines of the National Church of Scotland. Then there was a resolution passed subsequently, whereby other preachers were allowed to preach and the question was he w far the resolution passed by the general body was valid. In Free Church of Scotland (General Assembly of) v. Overtoun (Lord) Macalister v. Young (1904) A.C. 515 : 91 L.T. 394 Lord Davey observed at page 645 Page of (1904) A.C.--[Ed.];
The question in each case is, what were the religions tenets and principles which formed the bond of union of the association for whose benefit the trust was created? I do not think that the Court has any test or touchstone by which it can pronounce that any tenet forming part of the body of doctrine professed by the association is not vital, essential) or fundamental, unless the parties have themselves declared it not to be so. The bond of union, he wever; may contain within itself a power in some recognised body to controls alter or modify the tenets and principles at one time professed by the association. But the existence of such a power would have to be proved like any other tenet or principle of the association.'
9. I may also, in this connection, refer to Attorney-General v. Anderson (1888) 57 L.J. Ch. 543 : 58 L.T. 726 : 36 W.R. 714. It was held in that case that where property was directed to be held in trust to be used; as a meetinghouse for Protestant Dissenters of the Presbyterian or Independent denomination, a resolution to transfer the chapel and congregation to the Presbyterian Church of England though passed by a majority was invalid.
10. In the view I take that the giving of precedence in the matter of thirtham will be a fundamental alteration of the principles on which the Sabha was (founded?) and is not a matter of mere internal management, it is unnecessary to refer to Cooper v. Gordon (1869) 8 Eq. 249 : 38 L.J. Ch. 489 : 20 L.T. 732 : 17 W.R. 908 and the other cases cited by the respondents Advocate, as to the Court not interfering in affeirs of internal management decided upon by the majority of members.
11. As the decision of the Subordinate Judge on the preliminary issues as to the maintainability of the suit under Section 92 of the Civil Procedure Code or the suit being not cognizable by a Civil Court was not seriously disputed before us, I do not think it necessary to refer to the decision cited by the Subordinate Judge in his preliminary judgment. I agree with him in deciding the preliminary issue in plaintiffs' favour.
12. The next question is as to what relief is to be granted. I think the plaintiffs are entitled to a declaration that it is not competent to the majority of the members to make any distinction between the mutts as regards thirtham or any other he nours or to give priority to the head of any one mutt ever the rest in the distribution of thirtham or any he nour.
13. His Lordship held that the articles and rules of the association provided sufficient safeguards for its proper working in the future, and gave certain directions for the conduct of the meetings of the Sabha in future, and concluded as follows.
I would reverse the decree of the lower Court and pass a decree in the terms above stated. The Sabha (represented by its committee) and 12th respondent, the Guru of the Uttarathi Mutt, will pay the appellants' costs both here and in the lower Court.
14. We fix the Vakils' fee in this Court at Rs. 500
15. The decree I pass disposes of the Memorandum of objections. No costs.
Pakenham Walsh, J.
16. After dealing with the facts:
I he ld that the defendants have failed to prove that there was any custom by which the Uttarathi Mutt received first thirtham and that the evidence both oral and documentary is distinctly in favour of the contention of the plaintiffs that there was no such custom. Even admitting that in practice any such thing arose, I should be inclined to agree with the learned Advocate-General in he lding that legal recognition of such a claim would be subversive of the objects of the society and that even a majority resolution in its favour cannot be given effect to. There is a vast difference between mere practice in a matter of this sort and recognition of this practice as a right conferring a superior status in a society whose basic object is equality. The right to first thirtham may be, and is no doubt, considered as a mark of superiority in temples and other places; but that will not mean that there is to be superiority in a society of this sort. If I might quote a sort of analogy, I suppose it is likely that when His Majesty the King-Emperor attends a celebration of the Sacrament, he would be communicated before the other members of the congregation; yet, I feel little doubt that to recognize any such priority as of right would be fundamentally opposed to the entire conception of the Sacrament and would be in contravention of its basic idea.
17. It was suggested that the Sabha are not trustees and can, therefore, act as they pleased. This does not appear to be correct--vide Halsbury's Laws of England, Vol. IV, Section 557, which says:
As charitable corporations exist solely for the accomplishment of charitable purposes, they are necessarily trustees of their corporate property, whether the beneficiaries are members of the corporation, as in the case of he spitals and colleges, or not. Accordingly, like other trustees, charitable or otherwise, they are subject to the jurisdiction of the Court.
18. A corporation can, no doubt, do what is incidental to the purpose of its business, but it cannot travel outside this--vide Dundee Harbour Trustees v. D. & J. Dicol (1915) A.C. 550 : 84 L.J.P.C. 74 : 112 L.T. 697 : 31 T.L.R. 118. As to the power of a majority to change the fundamental purposes and principles of the main body, Free Church of Scotland (General Assembly of) v. Overtoun (Lord), Macalister v. Young (1904) A.C. 515 : 91 L.T. 394 may be referred to where the majority of the Free Church of Scotland united with a body known as the United Presbyterian Church and it was held that, because the tenets of the latter body on the question of the Establishment principle and the West minister Confession were not identical with those under which the Free Church held the property in dispute, the minority which adhered to the original view of the Free Church were entitled to the property--vide remarks at pages 613, 645 and 648 Page of (1904) A.C.-[Ed.]. In such a case one dissentient is enough Attorney-General v. Anderson (1888) 57 L.J. Ch. 543 : 58 L.T. 726 : 36 W.R. 714 and there is no power to alter the central conditions of the society--vide Milligan v. Mitchell (1837) 3 My. & Cr. 72 : 40 E.R. 852 : 7 L.J. (N.S.) Ch. 37 : 1 Jur. 888 : 45 R.R. unless there is such power specially reserved, which must be proved. Of the cases quoted on the other side, there is only one that appears to be relevant and the remark there is obiter. This is the remark in Cooper v. Gordon (1869) 8 Eq. 249 : 38 L.J. Ch. 489 : 20 L.T. 732 : 17 W.R. 908. In that case, by the trust deeds of a congregation of independents, a chapel, a he use and other property were vested in trustees for the use of the congregation, and to permit the minister for the time being to occupy the he use. The deeds contained no express provision for the appointment or removal of a minister. In 1866, the Rev. Samuel Clarke Gordon was invited by a resolution of the Church members of the congregation to become co-pastor with the then minister. In 1868, a majority of the Church members resolved that Gordon be dismissed, and the majority of the trustees concurred in this resolution. Gordon claimed to he ld his office for life, in the absence of immorality, or preaching contrary to the tenets of the denomination, which was not charged. It was held that he was duly dismissed. That case would present no difficulty, but there is a remark by Sir John Stuart, V.C., to the following effect:
In his answer Mr. Gordon says, that, in the absence of any special usage or rules, the will of every such congregation is in all cases ascertained and their powers exercised by the votes of the majority of the persons in church fellowship worshipping at the particular chapel; and he adds this qualification--that the minority are bound by the majority on all points so long as such majority act consistently with the fundamental doctrines and principles held by the whole body. Such a qualification is futile, because as soon as the fundamental doctrines are contravened by the majority, they cease to be the fundamental doctrines of the whole body, and unless the minority submit there is no longer a united body, held together by fundamental doctrines and principles.
19. It appears to me that this remark which was apparently unnecessary for the determination of the case cannot be reconciled with the ratio decidendi of Free Church of Scotland (General Assembly of) v. Overtoun (Lord) Macalister v. Young (1904) A.C. 515 : 91 L.T. 394 where the Lord Chancellor-quoted at page 616 Page of (1904)) A.C.--[Ed.] with approval the dictum of Smith, B. in Dill v. Watson (1836) 2 Jones Rep 48 where he said:
We do not coerce our neighbour by calling for his signature to our profession or articles of faith. We leave him free to adopt or to repudiate that faith, according as his reason, his conscience, and the grace of God may direct him. We but say to him, if you agree with us affix your signature to certain articles, or in some way notify your recognition of their truth; or, if you disagree, withold such signature or declaration. And we say of him, in the former case, that he is, and in the latter case that he is not of our religion. We do not compel him to he ld our faith; we but ask him to inform us, by certain acts, whether he does he ld it or does not; and we ask this, only if he claims to be enrolled as one of our body, and to be in religious communion with us. In the absence of such a test, our Establishment would not be a rock, contented into solidity by harmonious uniformity of opinion, it would be a mere incongruous (heap of, as it were, grains of sand, thrown together without being united, each of these intellectual and isolated grains differing from every other, and the whole forming a but nominally united while really unconnected mass; fraught with nothing but internal dissimilitude, and mutual and reciprocal contradiction and dissension.
20. Raghunath Damodhar v. Janardhan Gopal 15 B. 599 and Lalji Shamji v. Walji Warhaman 19 B. 507 are cases relating to caste decisions where it was held that the decision was in the power of the majority of the caste for their own comfort and convenience and not a matter in which the Court could interfere; Hasan Rata Sahib v. Hasan Ali Sahib 38 Ind. Cas. 528 : 40 M. 941 : 33 M.LJ. 348 : 5 L.W. 419 : (1917) M.W.N. 389 was merely a matter of election to a committee and Ramados v. Hanumantha Rao 12 Ind. Cas. 449 : 36 M. 364 : 21 M.L.J. 952 : 10 M.L.T. 356 : (1911) 2 M.W.N. 387 dealt with the right of the majority of the villagers to manage the temple. There is nothing in these cases to show that the majority of a body can alter the fundamental objects of the body unless such a power is specially reserved.
21. I, therefore, he ld that the resolution is ultra vires and that this would not be altered by any practice having grown up of giving first thirtham to the representative of the Uttarathi Mutt, j further he ld that by the constitution the majority have no power to declare one mutt superior in the Sabha to any other mutt, [His Lordship held that the framing of a scheme was unnecessary and concluded as follows:]
22. I agree with the other directions which my learned brother proposed to give as to the conduct of meetings.
23. I concur with him that the decree of the lower Court should be reversed and a decree in the terms stated by him passed.
24. I also agree as regards costs and memorandum of objections.