Kumaraswami Sastri, J.
1. These appeals arise out of a suit filed under Section 92, Civil P.C., for a scheme in connexion with the Tiruppayathanathaswami temple, for the removal of defendants 1 - 4 who are the trustees, and the appointment of new trustees in their place, for an account and for other reliefs.
2. The temple has properties of its own and also kattalai properties endowed from time to time by the ancestors of appellant 2 in A.S. No. 163 The relationship of the persons who endowed the kattalai is set out at p. 20 of the lower-Court's judgment At a partition between the members of this family entered into on 15th October 1873, and evidenced by Ex 1, properties worth Rs. 7,200 at the time were set apart for a kattalai in the temple. The objects are mentioned in the deed Ex 1, but it is not necessary to refer to them as there is no dispute about them. The material portion of the partition deed as regards the setting apart of the properties and the devolution of trusteeship runs as follows:
As the properties worth this sum of Rs. 7,200 have been set apart in common for conducting the said charities to the said Thiruppithanathaswami, the miras alone of the said lands should always stand in the name of the said Thiruppathanathaswami. Now Sabapathi Pillai who is the head of our family should be dharmakartha and should from now conduct the above mentioned charities with the incomes from the said lands and with the said amount in cash. When the said Sabapathi Pillai gets weak in body, he should with full will appoint one who is competent to conduct the said charities and who could be acceptable to Sri Tiruppathanathaswami deity, from out of the sufficiently aged male members of our family as dharmakartha and he should conduct the said charities. If without so appointing, the persons who are dharmakarthas die, the person who is then the bead of our family, should take up the dharmakarthaship and should conduct the said charities. Thus, only one person out of the descendants of our family, sons, grandsons, etc., should be conducting the said charities, subject to the said conditions. Except the male members born in our family, persons who might become related to our family and their descendants and strangers should not be appointed as dharmakarthas and the said person should not conduct the said charities. Persons who act as dharmakarthas should manage the said immovable properties and should conduct the said charities only with the incomes therefrom and should not in any way alienate the said immovable properties.
3. Namasivaya, the father of plaintiff 1, added to the kattalai properties and executed a will, Ex. 2, dated 11th January 1895. The land was six mahs and 93 kulies in extent. After reciting that he has set apart this land for the evening kattalai of the god he appoints Venkatachala Pillai, defendant 3's father in the suit as trustee. The material portion of the will runs as follows:
I have set apart for the said Tiruppathanathaswami evening kattalai and Venkatachala Pillai residing in the said Tiruppathangudi shall be the dharmakartha and he should without alienating in any way, the said properties and with what remains of the income received every year after paying the sirkar kist, arrange for preparing every day samba for the neivathiam of the evening kattalai, as stated above, and, after the neivathiam is over, should distribute that food to pilgrims and should keep proper accounts. The said Venkatachala Pillai should also look after the kattalai charity already set apart in the said Tiruppathangudi for Ochi-kalam and Arthajamam and Vaiska Utasavams of Tiruppathanathaswami by our ancestors. After the said Venkatachala Pillai the said charities should be administered according to the terms set out in the partition deed which has been left by the ancestors.
4. The trustees of the kattalai after the partition deed were Sabapathi Pillai who was appointed under Ex. I, his younger brother, Chockalingam Pillai, Ramanatha Pillai of the first branch, Venkatasami Pillai of the second branch and Panchanadam, defendant 3. So that from 1873 the kattalai was managed by one member of the family. The Subordinate Judge found that defendant 3 was guilty of breaches of trust and removed him. Defendant 3 filed appeal No. 257, but that appeal has not been proceeded with and has been dismissed by us with costs. So that we are not concerned with defendant 3.
5. The only question argued in appeal 163 is whether the Subordinate Judge was right in framing one scheme for the temple properties and the kattalai properties vesting all the properties in three trustees. It is argued by Mr. T. V. Venkataramier for the appellant that the Subordinate Judge had no power to appoint three trustees for the kattalai properties or to make it possible for a stranger or strangers to be trustees of the kattalai, that he was bound to adhere to the provisions in Exs. I and II as regards the devolution of trusteeship and that the kattalai properties ought to be kept separately with separate trustees, and, if necessary, a separate scheme of management. He agrees that if the interests of the temple require it, there should be a committee of supervision over the kattalai trustee, but that in no event can the kattalai trustee be a person who is not a member of the family, nor can there be more than one person as trustee. As regards the scheme whereby the kattalai properties and temple properties are practically treated as one unit with a joint trustee, I agree with the contention of Mr. Venkatarama Iyer and think that there should be a separate scheme for the kattalai properties. The kattalai properties are devoted, under Exs. I and II to certain special objects and although all the properties may vest in the idol, still the difference is well recognized between the properties belonging to the idol, dedicated absolutely to it which forms, if I may say so, the properties of the temple and the kattalais or subordinate trusts whereby properties were endowed by worshippers for special objects, very often with special trustees to administer the trust. There is a real danger as pointed out by Mr. Venkataramier that under the present schema the kattalai properties may be diverted to the general uses of the temple. I think that the scheme should be modified by making the present scheme of the Subordinate Judge, a scheme for the temple properties proper and by adding a separate scheme in respect of the kattalai properties.
6. The next question, however, is one which raises some difficulty. The Subordinate Judge has unfortunately given no reasons for appointing three trustees for the kattalai properties. One thing, however, is clear that the defendant 3 has been guilty of gross breaches of trust, extending over a number of years, and it is in the interest of the kattalai which comprises properties of considerable value that there should be a scheme whereby future breaches of trusts may be put an end to or at least minimized. As regards the power of the Court to appoint additional trustee to the kattalai, I am of opinion that while in cases of disputed succession to hereditary trusteeship or in cases where the office of trustee is to be filled up owing to the death or removal of a trustee, the terms of the dedication or the usage followed, have to receive every consideration and are not to be departed from except for any cogent reasons, yet for the proper administration of trusts and the prevention of abuses or opportunities for breaches of trust, the interest of the institution ought to be the prime factor, and that where in a suit under Section 92 of the Code for the framing of a scheme the interests of the institution demanded it, there is nothing to prevent the Court from appointing additional trustees in the place of a sole trustee so long as the rights of the members of the family to bake part in the management can be given due effect to without detriment to the interests of the institution.
7. The oases cited by Mr. Venkataramier do not, in my opinion, go to the length of laying down the principle that in suits for a scheme the Court has no power to vary the terms in the original trust as to the devolution of trusteeship or the usage of the institution of trust, if, in the opinion of the Court, it is necessary in the interests of the temple to make such variation. It seems to me that while every respect ought to be paid to the wishes of the founder of the charity as regards the devolution of trusteeship, the interests of the trust ought to be the primary and paramount consideration. In Gossami Sri Gridharji v. Romanlalji Gossami  17 Cal. 3, it was held that under Hindu law the office of the shebait is vested in the heir or heirs of the founder or the thakur, in default of evidence that he had disposed of it otherwise, or that there has been some usage or course of dealing showing a different mode of devolution and that the grandson of the founder was entitled in preference to a collaterally descended member of the. founder's family to claim the shebaitship. Here the dispute was between two members of a family as regards the trusteeship. Their Lordships of the Privy Council in dealing with the question of succession observe as follows:
According to Hindu law when the worship of a thakur 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. This principle is illustrated by the decision in the case of Peet Koowar v. Chuthur Dharee Singh 13 W.R. 396, and in the present case some of the learned Judges of the High Court have affirmed it, while none has expressed dissent from it. One learned Judge thought that the principle does not apply to this case, because Dadji was not the founder of the Calcutta worship. But their Lordships adopt the view of the other Judges, and holding that the mortal Dadji was the founder, they must also hold that the plaintiff is, by general law, the shebait of that worship.
8. Seethuramaswamiar v. Meruswamiar A.I.R. 1917 P.C. 190, was a case where the family owned private properties and also properties which were dedicated to a certain trust. Their Lordships of the Privy Council held that both the grant and the usage of the institution showed that the trusteeship was in one member of the family only and that the principle to be applied in determining who was to be the trustee-was laid down in Jaafar v. Aji 2 M.H.C.R. 19 and Trimbak v. Lakshman  20 Bom. 495. Mr. Venkatarama Iyer relied on the following passage of their Lordships at p. 305. [41 Mad.]
The headship of a mutt is not a matter of partition. Indeed, the plaintiff admits that he has no claim to share in it. This being so, it appears to their Lordships that the intention of the founder must be deemed to have been that his religious charities should be administered by the man who was the head of the mutt to which office the eldest son of the previous holder would naturally succeed, the office being indivisible among the members of the family, and the principles to be applied being those laid down in the case of Jaafar v. Aji 2 M.H.C.R. 19 and farther approved in Trimbak v. Lakshman  20 Bom. 495. This being 'so, there was no jurisdiction in the Indian Court to settle a scheme, the only object of which would be to take away the sole power of management from the eldest son.
9. In this case the dispute was between the members of a joint family as to who was to be the trustee. There was no question of any mismanagement, nor was any scheme prayed for under Section 92 of the Code, the only question being whether the eldest member of the family was to be the sole trustee or whether the other members of the family were entitled to the office. Ayiswaryanandaji Saheb v. Siwaji Raja Saheb A.I.R. 1926 Mad. 84 was a case of dispute between the members of the Tanjore Rajah's family as regards the trusteeship of the Tanjore Palace Devasthanam properties. In Goswani Puran Lalji v. Ras Behari Lal : AIR1922All285 , the question was whether a widow who succeeded as heir to her husband who created an endowment and nominated a person as manager of the endowed property can by will dispose of the managership of the trust where there was an heir of the settlor who claimed it and Piggot and Walsh, JJ. held that she had no such power. Kandasami Iyer v. Sivachidambaram Chettiar A.I.R. 1923 Mad. 209, was a suit under Section 92, of the Code and related to certain kattalais and the question arose whether the temple committee had rights of supervision over the kattalais and it was held that they had no such control. In this case, the hereditary trustees were not removed but the Subordinate Judge framed a scheme. No question arose here as to the power of the Court to appoint additional trustees. Several English cases have been cited to show that where a deed of trust has made provision for the appointment of trustees Courts will not alter it. The law is thus stated by Tudor on Charitable Trusts at p. 326:
Where the founder of a charity has vested the administration or patronage thereof in a person, the Court will not appoint new trustees so long as there are any heirs.
10. In Halsbury's Laws of England, Vol. 4 p. 266, the author observes:
If the founder of a charity has constituted a person and his heirs as trustees, the Court will not appoint new trustees while any heirs are living. Proof of heirship in such cases need not be strict.
11. Turning to the cases cited, In re Tempest  1 Ch. 485 was a case where a testator by a will created certain trusts, appointed trustees and made provision for future appointments. One of the trustees appointed by the testator died and the surviving trustees could not agree to the choice of a new trustee. The only question there was as to the principles on which the Court should appoint new trustees. It was held that in appointing new trustees the Court will have regard to the wishes of the author of the trust expressed in, or plainly deduced from, the instrument creating it, and also to the question whether the appointments will promote or impede the execution of the trusts, and Forster v. Abraham  17 Eq. 351 was a case where a testator by a will devised properties in trust, appointed trustees and gave the surviving trustees power to appoint new trustees, and the question arose whether a trustee was validly appointed in pursuance of the power so as to convey properties. Sir G. Jessel, M.R., after referring to In re Tempest  1 Ch. 485, observed that if the testator had given definite instructions in his will those would have amounted to declarations of intention, which the Court could not have disregarded. These cases, in my opinion, do not apply to cases where the Court is called upon to frame a scheme for the management of a public charitable trust and the dispute is not purely one between rival claimants to the office of trustee. Section 92 is quite general and empowers the Court to remove trustees and to appoint new ones. No doubt in making the new appointment Courts will not ordinarily depart from the usage of the institution or the directions in the deed of trust, but that is not the same as saying that a Court has no power to do so where in its opinion the trust will suffer by a rigid adherence to the terms of the grant or the usage of the institution as regards the appointment of trustees. It may be that a deed of trust framed several years ago does not meet the requirements of the institution at present and to hold that the Court is bound' to look on without any power to remedy any breach of trust, or the proper administration of the charity would, in my opinion require very strong authority.
12. The decision of their Lordships of the Privy Council in Mahomed Ismail Ariff v. Ahmed Moolla Dawood A.I.R. 1916 P.C. 132 is in my opinion authority for holding that the power of the Court is not fettered as contended for by Mr. Venkatarama Iyer. The case no doubt relates to a wakf, but the principles apply, I think, equally to all public religious and charitable trusts. After referring to Section 539 of the old Code (corresponding to Section 92 of the new Code) and pointing out that the question for determination was not the conflict of rights of individuals but a consideration of the best method for fully and effectively carrying out the purposes for which the trust was created, their Lordships observe:
In giving effect to the provisions of the section and in appointing new trustees and settling a scheme, the Court is entitled to take into consideration not merely the wishes of the founder, so far as they can be ascertained, but also the past history of the institution, and the way in which the management has been carried on heretofore, in conjunction with other existing conditions that may have grown up since its foundation. It has also the power of giving any directions and laying down any rules which might facilitate the work of management, and, if necessary, the appointment of trustees in the future.
13. So far as this Court is concerned, it has always exercised very wide powers in dealing with suits under Section 539 of the old Code or Section 92 of the new Code. In Sitharam Chetty v. Subramania Iyer  39 Mad. 700, which related to the famous Srirangam temple, the Court (Sir John Wallis, C.J., and Seshagiri Ayyar, J.) appointed two additional trustees for the better management of the temple though there were hereditary trustees, whose hereditary right was not denied by the plaintiff, and also made the future trustees including the hereditary trustees hold office only for five years. I may also refer to Veeraraghava Thathachariar v. Srinivasa Thathachriar : (1912)23MLJ134 , Zamindar of Kalahasti v. Ganpathi Iyer  M.W.N. 555, Muhommad Wahab Hussain v. Abbas Hussain A.I.R. 1923 Pat 420, and Dharam Dass v. Sadho Prakash 40 Ind.Cas. 177
14. In the present case there has been a long course of mismanagement and although there were adult members of the family none of them seem to have taken any interest in seeing that the trust was properly administered by defendant 3 till the plaintiff, the daughter of one of the deceased trustees Namasivaya, thought it fit to file the present suit in conjunction with the plaintiff 2 who was an outsider and a worshipper. I think that in the interests of the temple two additional trustees should be associated with a member of the family. I think, so far as kattalai is concerned, it would be sufficient if there is a scheme which provides for there being three trustees one of whom shall be a member of the family, that in the absence of any member in the agnatic descent the Court may select one from the members of the family descended from a female, that the kattalai properties should vest in the idol but should be managed by the kattalai trustees appointed, that such trustees shall keep correct accounts and submit the same to the trustees of the temple in case the trustees of the temple are different from the kabtalai trustees, that the trustees of the kattalai shall be nominated by the authority for the time being under the scheme entitled to nominate or appoint trustees to the temple with the same qualifications for trusteeship and the same rules as to dismissal or vacating office and that the other portions of the scheme shall mutatis mutandis apply to the kattalai trust. The present scheme will be modified by omitting from the scheme as regards the temple properties any reference to kattalai. The parties will bring a scheme on the above lines. As regards costs: I think this is a case where each party should bear his own costs.
15. I agree.