John Wallis, C.J.
1. The plaintiffs in this case sued under Section 539 of the old Code of Civil Procedure for the settlement of a scheme for the management of the suit temple, alleging that it is a public Hindu temple and that the management thereof is vested in the Ilayathakudi Kovil Nagara-thars, as certain families of Nattukotai Chetties residing near the suit temple are styled, and that management by so large a body has become impracticable. They also allege that if, as is contended by the defendants, the management is already vested in some of the defendants as trustees, the necessity for a scheme is equally made out.
2. The Subordinate Judge has found that the temple is a public Hindu temple and that the suit accordingly lies under the section. This is the first point contested by the appellants, who contend that it is a private temple owned by the Nattukottai Chetties or Nagarathars of the locality, whereas the case for the respondents is that the temple is an ancient one founded by the local rulers before the advent of the Nattukottai Chetties to Ilayathakudi. The tradition among the Nattukotai Chetties, who are now so well-known in connection with the money-lending and banking business carried on by them in India and further East, is that they originally came from Tanjore, and the fact that they all style themselves Ilayathakudi Naga-ratbars suggests, as the Subordinate Judge points out, that their first settlement in the Madura District was at Ilayathakudi. Some of them afterwards removed to other places in the neighbourhood and became connected with other temples so that, while they are all known as Ilayathakudi Nagarathars, the families whose principal place of worship is the suit temple at Ilayathakudi are known as Ilayathakudi Kovil Nagarathars. The same inference is supported by the fact that each of the several branches, although known by the name of the temple to which it is attached, still maintains some connection with the suit temple.
3. In these circumstances there does not seem to be any foundation for the suggestion that the temple was founded by the families who are now known as Ilayathakudi Kovil Nagarathars or for their claims that the temple is a private institution belonging to them. It is impossible to say at this distance of time who was the founder of the temple. The plaintiffs rely on the fact that, as mentioned in the Inam Register, the Hindivi accounts of 1801 showed that the temple was in possession of certain inam villages before the establishment of British rule, and the fact that there are certain statues of Ruling Chiefs as it is said in the temple to show that it was founded by former rulers for the use of the public, and that the local Nattukottai Chetties afterwards acquired the management of it as they did of the numerous other institutions in the district which are referred to in Exhibit A by reason of their wealth and benefactions. The plaintiffs also rely on the fact that the temple is open for public worship and that the rites and ceremonies are such as are observed in public temples. The grant of numerous inam lands to the temple is strong evidence of its public character, Muhammad Jafar v. Muhammad Ibrahim 24 M.d 243, as is also the character of the worship, Peesapati Sita-ramanujachariv.Kanduri Yellamma 30 lnd. Cas. 822, and in the plaint the Kiranipatty Amman temple which is admittedly a public institution, is alleged to be a temple subsidiary to the suit temple, and this contention is not traversed in the written statement, and it is proved that the funds of the two institutions are mixed up and not kept separate. On the evidence, therefore, we agree with the Subordinate Judge that the temple has been open to the Hindu public, and that the action of the managers in endeavouring to exclude or excluding two local zemindars who had had quarrels about property with the temple is no sufficient proof that it was a private temple. It may be that a caste or a section of a caste can own a temple, as it has been held in Pragji Kalan v. Govind Gopal 11 B. d 534 that they can own vessels for cooking and dining, but in Thackersey Dewraj v. Hurbhum Nursey 8 B.s 432, the case which most nearly resembles this, it was held that a temple which was managed by a certain caste was the subject of a public charitable trust and that a scheme could be framed for it under Section 539 of the old Civil Procedure Code and though on appeal the Court was of opinion that no scheme was necessary, it is not suggested that they held that the section did not apply. Malabar cases in which temples were held to be the property of a tarwad, that is, of the descendants of one woman, and Puramathan Somayajipad v. Sankara Menon 23 M.s 82, where the temple was said to belong to the three sabhayogams or companies of Brahmin ascetics, appear to be less applicable. On the whole it cannot be said to be proved in this case that the temple was founded by the Nagarathars, and even if it was, it must have been founded by the whole community who settled at Hayathakudi and not by the particular families which have continued to be attached to it. There is, therefore, in our opinion, no case for holding that the temple is the private property of the Ilayathakudi Kovil Nagarathars. Even if it had been shown that the temple was founded for the use of this particular section of the caste, which consists of several families not shown to be otherwise than very distantly related to one another, we should, as at present advised, be inclined to hold that they are a section of the public and that Section 92 is applicable. Serious inconveniences would arise from holding that a temple of this kind was the private property of such a large body of persons as the Ilayathakudi Kovil Nagarathars, and we think that such private ownership should be strictly proved. In this connection, we may mention that a scheme has already been settled for one of the temples in this district included in Exhibit A as under the management of the Nagarathars, Ramanathan Chetty v. Murugappa Chetty 13 M.L.J. 341, and in a very recent case, we have held that a mutt, which was also mentioned in Exhibit A as under the management of the Nagarathars, was in fact the property of the head of the mutt, and that owing to their benefaction the Chetties had been allowed to manage on his behalf. In the present case, the income of the temple was mainly derived from inams or State grants until the Chetties in 1877 levied money among themselves by a poll-tax and embarked it in a money-lending business in which large profits were realised, but this does not at all show that the temple was their private property. Nor does the fact that the temple was used for caste meetings and that recently out of the moneys which they had earned for the temple they erected buildings for caste meetings and incurred other expenditure for the benefit of the caste rather than of the temple, afford sufficient evidence of private ownership. The fact that the temple money has been spent not on the temple, but on various objects tending to promote the benefit of the caste alone merely shows that the caste has practically usurped control of the temple, but is not sufficient to prove that the temple is the property of the caste.
4. The next question is as to whether % scheme is necessary. There can be no doubt, we think, that on the whole the temple has been well managed, and that its resources have been greatly increased, and we should have been very glad if things had been allowed to go on without recourse to a Court of Law. At the same time, the impression left on our minds by the evidence and the exhaustive arguments to which we have listened is that it is very difficult to say exactly what the present scheme of management is, and we think that the questions which have now been raised are sure to give rise to difficulties in future, unless they are set at rest by the settlement of a scheme. In Chapsey Cooverji v. Jethabhai Nursey 9 Bom. L.R. 514 Chandavarkar, J., saw reason to express regret that the scheme settled by Scott, J., in Thackersey Dewraj v. Hurbhum Nursey 8 B.s 432, which as we have already said was a case similar to this, had been set aside on appeal as subsequent events had demonstrated the necessity of the scheme. The Subordinate Judge in paragraph 145 of his judgment has forcibly pointed out the evils and dangers resulting from the uncertainty which at present exists as to the right of management in this temple, and we agree with his conclusion that it is desirable that a scheme should be settled.
5. It has been repeatedly laid down that in the absence of evidence of the intentions of the founders, institutions of this kind should be governed by user, and though the past user of the institution is not binding on us in framing a scheme under the section, yet it may well be taken into account and departed from only as far as may be necessary. The case for the plaintiffs is that the management of the temple is at present vested in the whole body of llayathakudi Kovil Nagarathars. The case for the defendants is that, assuming the temple not to be a private temple, the trusteeship is vested in four particular families and was discharged from time to time by one member of each family, generally the eldest. It is undoubted that four Kariakars, one for each family, have acted ever since 1864, the date of the Inam Settlement, and that at that time they were recognized by the Inam Commissioner as trustees; and Exhibit G1, the Inam Register of one village, says the temple had been under the management of the trustees for a long time while Exhibit XXXI, a similar document of the same date, says that the temple had been under the management of the trustees for at least a century. We cannot agree with the Subordinate Judge that Exhibit Or and the connected Exhibits show that this state of things arose subsequently to 1832, the date of those documents. What these documents show is that in 1832 when the Sivaganga zamindari was under attachment the Revenue Officials, as agents of the Board of Revenue and in the exercise of the powers conferred upon it by Regulation VII of 1817, began to investigate the accounts of the temples in the zamindari; and the Chetties protested that the temples and mutts therein mentioned had always been under their management and asked that they should not be interfered with. There was no occasion to set out in detail the method in which each of the institutions was managed; and even if the suit temple was then managed by four trustees taken from four particular Chetti families, we think it might still be described as under the management of the Nagarathars alone ever since the time of our ancestors,' having regard to the greater or less control exercised over the trustees by the koottam or annual meeting of the Nagarathars at the temple.
6. The Subordinate Judge in paragraph 99 of his judgment rejects the case for the plaintiffs that the Kariakars were annually appointed trustees by the hoottam, and also rejects the defendants' case that they were the hereditary trustees of the temple. He finds in paragraph 99 that the management is vested in the whole body of Nagarathars; that at some time or other they allowed members of each of four leading families to attend to the in ternal affairs of the institution; that after the death of these four persons one person from each of these families was tacitly allowed to look after the affaira of the institution; that even after these four persons were appointed the Nagarathars exercised control over the affairs of the temple in all important matters; and that until 1904 the four Kariakars considered themselves to have been appointed by and subject to the general body of llayathakudi Kovil Nagarathars, and only then took it into their heads to assert an hereditary right to the trusteeship and to claim absolute powers over the temple and its endowments. He finds accordingly (paragraph 100) that they are not trustees under the right claimed by them but have been tacitly allowed to act as trustees, being the representatives of the families to which the trustees first appointed by the Nagarathars to manage the affairs of the temple belonged.
7. As we have already said, we think the Kariakars go back further than the Subordinate Judge supposed, and we are not satisfied that he is right in holding that the small sums mentioned in Exhibits EE series were expended by the authority of the whole body of Nagarathars assembled at their annual meeting. It seems to us quite possible, as suggested for the defendants, that the Nagarathars mentioned in this series may have been the Kariakars themselves describing themselves as Nagarathars. There are numerous deeds in which the Kariakars describe themselves as appointed by the Nagarathars, though, as the Subordinate Judge has rightly pointed out, there is no satisfactory, evidence that they used to be actually appointed, and it is also possible that this appointment mentioned in Exhibits J series or XXXII series refers to appointment in the remote past and it seems to us that in Exhibits EE series they may have sometimes described themselves as Nagarathars because they regarded themselves as representing the whole body of Nagarathars; but if this be so, it only makes the case stronger for holding that the Nagarathars were the controlling authority. Further, as pointed out by the Subordinate Judge, one of the defendants, himself a Kariakar, has filed an affidavit YY in this suit in which he states that the trustees for the time being were consulting with the leading members of the community in important matters and were acting in accordance with the wishes of the community expressed at the general meeting of the caste during the Keeranipatty festival or on other occasions. The fact that the Kariakars in many instances also described themselves as hakdars or temple trustees is not, in our opinion, sufficient having regard to the rest of the evidence to establish their right to that character independently of the general body of Nagarathars.
8. On the whole, although as we have said, the evidence is not altogether consistent, we see no reason for differing from the conclusions of the Subordinate Judge in paragraph 59 of his judgment that the Ilayathakudi Kovil Nagarathars as a body had the control of the temple affairs, though they left most of the management to the four Kariakars, and there was also occasional interference in circumstances, which are not fully proved, by individual Nagarathars other than the four Kariakars, who not only acted, but also in some instances styled themselves as Kariakars and hakdars. In some instances, as pointed out by the Subordinate Judge, these individuals were not even members of the four vahais or families from whom the Kariakars are taken, and the fact of their interference shows how little system there was in the way in which the affairs of the temple were managed, and makes it more than ever necessary to frame a scheme. We do not think it is desirable that at this stage we should indicate in detail the lines on which the scheme should be framed, and would leave it to the parties in the first instance to frame a scheme for the consideration of the Court. We may, however, say that the position of the four Kariakars from the four vahais or families as hereditary Kariakars or agents is entitled to consideration, for it is clear that for the last 100 years or so four families, to which defendants Nos. 1, 21, 31 and 33 belong, have held a right superior to the rights of the other members of the community, although that right may not be the right of absolute trusteeship. We are also disposed to think that it is desirable that, subject to such control on the part of the general body of Ilayathakudi Kovil Nagarathars as may be considered necessary, it is desirable that there should be a body of trustees who can be held responsible for the due administration of the trust. Assuming the right of management to be now lawfully vested in the general body in accordance with user, it must be very difficult for them to perform efficiently the duties of trustees, and still more difficult to enforce against them individually the obligations of trustees.
9. In the view we have taken it is unnecessary to deal with the alleged breaches of trust which are the subject of the 6th issue, for these breaches are more or less technical. If we look upon the institution merely as one for the benefit of the general public, undoubtedly the funds of the institution have been used irregularly, but when it is considered that the greater part of the present income of the temple is the result of the offerings and contributions made by the Chetti community, and that the expenditure of this income on caste purposes has not caused any real injury to the temple, we do not think that the trustees can be held guilty of any moral obliquity.
10. Apart from this, we think the necessity for a scheme has been sufficiently demonstrated. On the whole the management of the Kariakars has been honest and beneficial to the estate, though marked by some irregularities. This has scarcely been contested, and if they were trustees we do not think that they should be removed on the ground of misconduct in their office. Further, as the suit was filed under Section 539 of the old Civil Procedure Code which, as construed by this Court, did not admit of the removal of trustees in a suit framed under it, it is open to question whether the Kariakars could be removed for misconduct in the present suit even if they are regarded as trustees. For the reasons already given, we find some difficulty in regarding them as trustees, though we think there are strong grounds for holding them entitled to an hereditary office of Kariakars or agents. In any view, we do not consider it necessary that they should be expressly removed by the decree from the office of trustees and would modify the decree by omitting that provision. For the future their duties will be provided for in the scheme. Subject to this modification the appeal is dismissed except as to costs. In view of the peculiarity in circumstances of the estate, we think the costs of both sides here and below should come out of the estate.
11. The memorandum of cross-objections is dismissed. There will be no order as to costs.