S. Maharajan, J.
1. The plaintiffs have preferred this appeal against the judgment of the learned Subordinate Judge of Tirunelveli, dismissing their suit with costs of the contesting first defendant. The suit itself was filed by the plaintiffs for themselves and as members of the Committee of the Agraharam Pothu, Dharmam alias Dharma Paripalana Sabha of Vadakku Ariyanayagipuram, against the Commissioner of the Hindu Religious and Charitable Endowments (Administration), Madras (the first defendant), and the Executive Officer, Sri Kailasanatha-swami Devasthanam, Ariyanayagipuram (the second defendant), for setting aside the order of the first defendant dated 10th. May, 1963 in Appeal No. 45 of 1962. The case of the plaintiffs was as follows : In the village of Ariyanayagipuram in Tirunelveli District are situate two temples ; one is a Siva temple called Sri Kailasanathaswami Devasthanam, and the other a Vishnu temple known as Venkatachalapathi Devasthanam. Sri Kailasanathaswami Devasthanam is the richer of the two Devasthanams and is possessed of considerable endowments and has been under the management of the trustees appointed from time to time under the Tamil Nadu Act II of 1927 and Act XIX of 1951, while Venkatatachalapathi Devasthanam has been customarily and from time immemorial, under the continuous and exclusive management and control of the resident Brahmin community of the village. The plaintiffs are the present members of the managing committee of the Agra-haram Pothu Dharmam known as Dharma Paripalana Sabha, having been selected thereto by the Brahmin residents of the village. The village Brahmin community has been from time immemorial in exclusive control and management of Sri Venkatachalapathi Devasthanam and has been functioning through a managing committee selected by the said community from year to year. From time immemorial, Sri Kailasanathaswami Devasthanam was making an anual contribution of 8 kottas of paddy and Rs. 30 to Sri Venkatachalapathi Devasthanam of the village. But, this contribution was stopped by the then trustee of Sri Kailasanathaswami Devasthanam in 1953-54, on the ground that Sri Venkatachalapathi Devasthanam was an independent one and the trusteeship thereof was hereditary in the Brahmin community of the village. On a complaint from the Secretary, Dharma Paripalana Sabha, the Assistant Commissioner, Hindu Religious' and Charitable Endowments (Administration), Tirunelvely, by his proceedings dated 19th March, 1956 restored the contribution with a direction to the person or persons interested in Sri Venkatachalapathi temple to move the Deputy Commissioner for a declaration that the trusteeship of Sri Venkatachalapathi Devasthanam is hereditary within the meaning of Section 57 (b) of the Tamil Nadu Act XIX of 1951. The Assistant Commissioner also suggested that a decision from the same Tribunal might be obtained as to whether or not the said Sri Venkatachalapathi Devasthanam was a sub-temple of Sri Kailasanathaswami Devasthanam of the village. In pursuance of the said direction, the then members of the managing committee of the Dharma Paripalana Sabha filed O. A. No. no of 1956 before the Deputy Commissioner, Hindu Religious and Charitable Endowments, Thanjavur. By order dated 16th August, 1957 the Deputy Commissioner dismissed the application after holding that Sri Venkatachalapathi Devasthanam was a sub-temple of Sri Kailasanathaswami Devasthanam, and that it had not been established that the office of trusteeship and management of the said temple was hereditary. An appeal was filed by the Dharma Paripalana Sabha to the Commissioner of the Hindu Religious and Charitable Endowments, Madras, who set aside the order of the Deputy Commissioner and remanded the matter to him for fresh disposal. After remand, the Deputy Commissioner, after hearing the parties, held by his order dated 26th February, 1962 that Sri Venkatachalapathi Devasthanam was not a sub-temple of Sri Kailasanathaswami Devasthanam and that the claim of hereditary trusteeship made by the Brahmin community was untenable. The plaintiffs-preferred an appeal, Appeal No. 45 of 1962, to the Commissioner, Hindu Religious and Charitable Endowments, Madras, against that part of the order which held that the trusteeship of Sri Venkatachalapathi temple was not hereditary under Section 6 (9) of the Tamil Nadu Act XIX of 1959. The appeal was dismissed on 10th May, 1963. According to the plaintiffs, the order of the Commissioner disregarded the unimpeachable evidence on record to the effect that succession to the management and trusteeship of Sri Venkatachalapathi Devasthanam has been regulated by usage from time immemorial, and consequently, the office of trusteeship is hereditary. The suit was filed in the Court below for setting aside the order of the Commissioner in Appeal No. 45 of 1962.
2. The first defendant filed an answer in which he contended inter alia that the suit was barred by limitation, that the succession to the office of trusteeship of the plaint-mentioned Devasthanam was not regulated by any ancient or definite usage and that the order of the first defendant was not, therefore, liable to be set side.
3. The second defendant filed a memo. adopting the written statement of the first defendant.
4. The learned Subordinate Judge held that the suit was not barred by time, that the plaintiffs had failed to establish that they were the hereditary trustees of the suit temple, and that consequently the order of the first defendant was not liable to be set aside. On this basis, the suit was dismissed with costs of the contesting first defendant.
5. The main question that arises for consideration is, whether the resident Brahmin community of Ariyanayagipuram are the hereditary trustees of Sri Venkatachalapathi Devasthanam.
6. In paragraph 8 of the judgment, the learned Subordinate Judge observes:
No doubt, Exhibits A-3, and A-49 would show that right from 1927 the Brahmin residents of Vadakku Ariyanayagipuram used to meet from time to time, i.e., once a year and select 3. maximum of 5 persons for carrying on the management and administer the affairs of the temple and those 5 persons from among themselves elected a secretary, a treasurer and so on for attending to the day to day affairs of the temple like writing accounts, issuing receipts, payment of kist, collection of income etc. First defendant did not seriously dispute the truth or genuineness of the entries found in the documents, not even those in the minutes books. Further, they are ancient documents which need no proof.
Though we agree that the above statements are correct and are warranted by the evidence on record, we think that the learned Subordinate Judge erred in excluding Exhibit A-8 from consideration. Exhibit A-8 is a hand-copy of a document filed by the plaintiffs, and marked as Exhibit A-1 in O. A. No. 82 of 1960. In fact, in his annexure to the order dated 17th March, 1962 in O. A. No. 82 of 1960, the Deputy Commissioner has referred to the original of Exhibit A-8, and made the following observations:
The evidence adduced on behalf of the petitioners go to show that at least from 1906 persons who command the confidence of the Brahmin residents of the village had from time to time been managing the affairs of the temple, receiving the contributions given by the Siva temple and managing the other properties of the temple. According to Exhibit A-1, it is shown that one Muthuswamy Iyer was nominated to look after the affairs of the temple by the Brahmin residents. The document authorising this man is styled as a consent letter and bears the signature of about five persons in the village.
From these observations, it is clear that the original was filed as Exhibit A-1 before the Deputy Commissioner, who, in his order, has abstracted the contents thereof. Though the original was summoned by the plaintiffs, the Deputy Commissioner failed to produce the same. In these circumstances, the plaintiffs were entitled to adduce secondary evidence of the document, the original of which was filed before the Deputy Commissioner and has somehow been mislaid or lost in his office. The third plaintiff, who is a respectible person and whose integrity is not questioned by the respondents' Advocate, has certified that Exhibit A-8 is a true copy of the original dated 22nd Panguni 1081 (corresponding to 15th March, 1906). It shows that the Grama Mahajanangal of Ariyanayagipuram, meaning the Brahmin community of Ariyanayagipuram, have asserted their title to the village Sastha temple and Sri Venkatachalapathiswami temple and after dismissing one Subbier, who was managing the affairs of both the temples on behalf of the Brahmin community, appointed another man to look after the affairs of the temples and directed him to keep proper accounts of the transactions thereof. It is, therefore, clear that at least from 1906, the management of Sri Venkatachalapathi Devasthanam has been in the hands of the Brahmin residents of Vadakku Ariyanayagipuram. As all the members of the community could not directly conduct the affairs of the temple, they seem to have been periodically appoint-ting one or more of their delegates for the management and administration of the temple, as shown by the documents from 1906 upto-date (vide Exhibits A-8 and A-39 to A- 41). It is not disputed that the right of the Brahmin community of the village to manage the temple was ever challenged within living memory. If, since 1906, the members of the Brahmin community of the village have been exercising their right of management upto-date, it is but reasonable to presume, in the absence of any contrary evidence, that they have been in management of the temple from time immemorial. It is a sound principle of law that where there has been a well-established user, extending over a long series of years, it is the duty of the Court, if possible, to find a legal origin for the existing facts. It is not improbable that the members of the Brahmin community of the village actually founded the temple at some point of time, which is lost in the mists of antiquity, and that is why they have been hereditarily managing the affairs of the temple. Under Section 6, Clause (22) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959,
'trustee', means any person of body by whatever designation known in whom or in which the administration of a religious institution is vested, and includes any person or body who or which is liable as if such person or body were a trustee ;.
It is clear from this definition that a body of persons, such as the Brahmin community of the Ariyanayagipuram village, can be a trustee of the temple, provided the administration of the temple is vested in them. The learned Subordinate Judge refused to regard the whole community as trustee of the temple, mainly for the reason that it would be a fluctuating body. We think there is nothing in the definition of the word ' trustee ', which would deprive a body of persons of their right of trusteeship merely because that body is likely to fluctuate from time to time.
7. In The Secretary of State v. Haibatrao Hari I.L.R. (1904) Bom. 270, Jenkins, C.J., observed as follows:
There can be no doubt that the law of the country recognised fluctuating communities as legal personae capable of owning property, as for instance, the caste, and the village.
We think that the above statement represents the correct position of law. If a whole village is capable of owning property, notwithstanding the fact that the collectivity called the village, is necessarily a fluctuating body, we see little reason why such a fluctuating body cannot hold the right of administering and managing the temple and being the trustee thereof.
8. In a case, Muthia Asari v. Madasami Asari (1965) 2 M.L.J. 226, where the members of the Viswakarma Brahmin community relating to five named villages in a particular District claimed the right to manage a temple and to administer its endowments, a Division Bench of this High Court observed:
Undoubtedly, the rights of this body-will be entitled to protection under Article 26 of the Constitution, particularly, Sub-clause (d). The right of any corporate body, with regard to a denominational religious institution, to have its functions preserved from invasion, under Article 26 of the Constitution, has beer statutorily embodied in Section 107 of Madras Act XXII of 1959.
In Manathunainatha v. Sundaralingam : (1970)2MLJ156 , a Full Bench of this Court has observed that the office of the Dharmakartha may be held by a single member, or by a number of persons, or by a family or by a number of families, and they added, ' At places, the superintendence of the village temple is found vested in the entire village community.'
9. If the right of superintendence or administration of the suit temple validly vests in the Brahmin community of Ariyanayagipuram, there can be little doubt that this community is the body which will be regarded as a trustee of the temple within the meaning of Section 6, Clause (22) of the Tamil Nadu Act XXII of 1959. Clause (11) of the said section defines 'hereditary trustee ' to mean,
the trustee of a religious institution, the succession to whose office devolves by hereditary right or is regulated by usage or is specifically provided for by the founder, so long as such scheme of succession is in force.
There are three limbs to this definition. A trustee will be regarded as hereditary trustee, if the succession to his office:
(1) devolves by hereditary right; or
(2) is regulated by usage; or
(3) is specifically provided for by the founder.
It is necessary to read these three qualifying clauses disjunctively without allowing the concept derived from the one to telescope into and obscure the concept derived from either of the other two. The question to ask is, if the entire resident Brahmin community of Ariyanayagipuram is, as we have found, the trustee of the suit temple, does the succession to that office of trustee devolve by hereditary right If so, the entire body of Brahmin residents of the disputed temple should be regarded as hereditary trustees. Numerous authorities have been cited before us in which the status of hereditary trusteeship has been considered by Courts. But, in none of them has it been held that a body of trustees such as a particular caste or village is disentitled to be hereditary trustees.
10. For instance in the case reported in Muthirula Filial v. Tkyagarajaswami Pillai : (1964)1MLJ230 , a large numter of persons, called Koilkudigals were the joint trustees of Sri Gurunathaswami temple. Reminiscent of the practice of the Brahmins of Ariyanayagipuram, the general body of the Koilkudigals met in 1926, and for the purpose of convenient management, elected one Muthirula Pillai as trustee to manage the temple. The said Muthirula Pillai claimed that he had acquired a hereditary right to the office of the trustee. This claim was rejected by a Division Bench of this High Court consisting of Ramachandra Iyer, C.J. and Ramamurti, J., with the following observations:
It is said that, in 1926, the appellant was elected by the general body of Koilkudigals as a trustee. On this basis, he claimed that he had acquired a hereditary right to the office of trustee. We are, however, unable to see how that can follow. If the Koilkudigals are deemed to be the hereditary trustees, the mere fact that they comprised a large body of individuals cannot take away that right from them. All of them would be joint trustees. The office will thus be a joint one, the co-trustees forming, as it were, one collective trustee. But if they, for the purpose of convenient management, elected one from amongst themselves as a trustee, it must have been only to facilitate the management of the temple and its properties. Such election by itself cannot confer any exclusive right of trusteeship, much less a hereditary right to trusteeship- Indeed, it would really be the other way about. The appellant, by virtue of his election, : can hold office only under the rights created by such election, and that cannot be regarded as in any way creating a hereditary right. The office of trustee, as we said, was a joint one, and it would not be open for the general body to alienate the office in such a way as to create a hereditary right in one amongst themselves.
The above observations throw a flood of light upon the legal position of the plaintiffs in this case. It is not the persons, who were being periodically elected or appoint ed by the general body of the Brahmin community of Ariyanayagipuram, that have come forward, in this suit, for recognition of their hereditary right. On the other hand, the plaintiffs represent the entire community of Brahmins of the village, who have been hereditarily exercising the right of managing and administering the suit temple. The mere fact that they comprise a large body of individuals cannot take away from them the right of hereditary trusteeship. All of them would be co-trustees of the temple. If any of them dies, his right of co-trusteeship would devolve upon his heir. This would be true of every member of the Brahmin community of Ariyanayagipuram at any point of time. Deaths may decrease, and births may increase the number of co-trustees entitled to manage the temple. But the succession to the general body of the trustees of the institution undoubtedly devolves by hereditary right and the circumstance that for efficient administration the general body of trustees has been appointing by election one or more among them to manage the temple does not in any manner detract from their status as; joint trustees, nor can it confer any exclusive right of trusteeship, much less a hereditary right of trusteeship upon the person appointed by them.
11. Reference was made in the course of arguments to a ruling of the Supreme Court in Sambandamurthi Mudaliar v. State of Madras : (1970)2MLJ58 . That case related to the trusteeship of the Kumaran Koil in Manjakollai village. The temple had been founded 200 years ago by the members of the Seguntha Mudaliar Community of Manjakollai village and ever since its inception, the management of the temple and its affairs was always vested in the community of Senguntha Mudaliars, and no person other than the elected trustee had at any time the right of management and control of the temple. One Sambandamurthi Mudaliar, the appellant in that case, claimed to be the hereditary trustee within the meaning of Section 6 (9) of Tamil Nadu Act XIX of 1951. His contention was that according to the usage of the temple, the members of the Sengunatha Mudaliar community annually elected the trustee of the temple, and he having been elected as such must be regarded as a hereditary trustee because the office of trustee was 'regulated by usage', within the meaning of Section 6 (9) of the Act. This contention was repelled by the Supreme Court on the ground that the phrase 'regulated by usage' in Section 6 (9) must be construed along with the phrase 'succession to whose office', and when so construed that part of the definition would only apply where the ordinary rules of succession under the Hindu Law are modified by usage, and succession has to be determined in accordance with the modified rules. If instead of Sambandamurthi Mudaliar, the person who was elected by the general body of the trustees, the general body of the trustees themselves had in that case claimed hereditary trusteeship, there can be no doubt that the Supreme Court would have recognised (heir claim because they would clearly fall under the first clause of the definition. Their Lordships also cited with approval Black's Law Dictionary, in which the word 'succession' is defined as follows:
The devolution of title to property under the law of descent and distribution. The right by which one Set of men may, by succeeding another set, acquire a property in all the goods, movables, and other chattels of a corporation. The fact of the transmission of the rights, estate, obligations, and charges of a deceased person to his heir or heirs.
Judging the right claimed by the plaintiffs in this case in the light of this definition, there can be no doubt that succession to the right of trusteeship of Sri Venkatachalapathi Devasthanam devolves hereditarily within the meaning of Clause (22) of Section 6 of the Tamil Nadu Act XXII of 1959- In other words, the right of co-trusteeship possessed by every member of the Brahmin community of Ariyanayagipuram at any point of time has been devolving from time immemorial on the death of that person on his heir or heirs. We, therefore, reverse, the finding of the trial Court and hold that the Brahmin Mahajanangal of the Village of Ariyanayagipuram, are the hereditary trustees of Sri Venkatachalapathi temple of that village. We may also note, in this connection, the finding of the trial Court at page 11 of its printed judgment which is in the following words:
It was, therefore, clear that, in the instant case, the plaintiffs, who succeeded in establishing that there has been an usage recognising all the resident members of the brahmin community as trustees and all of them as entitled to the office of trusteeship and all of them as entitled to be trustees while their forefathers and progenies were also trustees by reason of their residence and age could not be treated as having established that the succession to the office of trusteeship of the Vishnu temple is regulated by usage because the usage is not something which can be reduced to any formula.
It may be noticed that even according to the trial Court, the plaintiffs have succeeded in establishing that there has been a usage recognising the members of the Brahmin community of the village as hereditary trustees of the temple. We confirm this finding. But we, disagree with the later part of the observation of the learned Subordinate Judge to the effect that inspite of the plaintiffs succeeding in establishing this usage, they must fail, because ' the usage is not something which can be reduced to any formula'. It is difficult to accept the assumption of the learned Subordinate Judge that usage is not usage unless it can be reduced to a formula. What he evidently meant was that the Brahmin community is a body which fluctuates from time to time and cannot, therefore, be regarded as a determinate entity. As we have already observed at the inception, the law of the country has always recognised fluctuating communities as legal personae capable of owning rights. It was, therefore, wrong for the lower Court to have held that the fluctuating character of the community would have the effect of depriving it of its legal rights. We consequently reverse the judgment of the Court below and decree the plaintiffs' suit as prayed for with costs throughout.