1. In the village of Mopparu, Tenali Taluk, there is a Hindu temple dedicated to Sri Venugopalaswami. In the year 1892, the adoptive father of the plaintiff and 18 persons including the defendants endowed this temple with 4 acres 62 cents of land for the annual celebration of kalyana utsavam. The plaint alleges that the donors continued to manage this property and celebrated utsavam through the defendants till 1914 when the plaintiff was appointed to carry on the work. There were two factions in the village, one sup- porting the plaintiff and the other the first defendant; for sometime the relations between the plaintiff and the defendants were not amicable; but each was trying to exclude the other in performing the utsavam. Proceedings in Civil and Criminal Courts had to be taken with the result that the suit land was laid down waste and the utsavam was not performed regularly. In O.S. No. 489 of 1919 the defendants adjusted their differences between themselves by a compromise to the exclusion of the plaintiff and the other founders of the endowment. As the first defendant claimed to control the management of the properties and the utsavam under the razinama those who appointed the plaintiff in 1914 found it necessary to re-affirm his appointment and after ineffective petitioners before the Stationary Sub-Magistrate of Tenali by both parties for permission to celebrate the festivals, the plaintiff was appointed a trustee at a meeting of the surviving founders and heirs of the deceased on the 10th of January, 1922. The suit out of which this appeal arises was instituted by the plaintiff to declare his rights to manage the suit land and celebrate the kalyana utsavam in the temple, for possession of the suit land and for an account of the income accruing from it from 1918 onwards till delivery of possession.
2. The first defendant is the contesting defendant. The 2nd defendant may be left out of considerarion. The first defendant questioned the validity of the appointment of the plaintiff and stated that ever since the endowment in question, he has been in possession of endowed land and has exercised rights of management adversely for over 12 years and that he has, therefore, acquired a right to manage the land and conduct the utsavams, that the proceedings in Criminal Court were the outcome of the conduct of interested persons in trying to remove him from trusteeship that he has not been properly removed, that no valid appointment could be made without removing him and that the suit has been badly laid as no permission to institute it has been obtained under Section 92 of the Civil Procedure Code.
3. The lower Court found that the first defendant was not merely an agent or honorary servant, that from the very allegations made by the plaintiff it could be inferred that he was appointed as trustee from the very commencement and that as he had not been validly removed from his appointment, the donors and their heirs had no right to appoint the plaintiff as trustee or manager. It also found that the first defendant had also by prescription acquired the office of trustee in respect of the endowed lands. It further found that the appointment of the plaintiff at a meeting as trustee and manager in respect of the plaint lands for the purpose of the performance of the kalyana utsavam was true and valid and binding on the defendants provided of course there was none other validly holding the office as such trustee. The lower Court was also of opinion that the suit is not bad for want of sanction under Section 92 of the Civil Procedure Code. The findings unfavourable to him have been attacked strenuously before us by Mr. Krishnaswami Iyer on behalf of the plaintiff-appellant.
4. At the every outset it must be mentioned that the Subordinate Judge has misunderstood some of the contentions of the parties raised in the pleadings and this has somewhat obscured his findings on some of the points. It was not the case of the plaintiff that the first defendant was appointed as an agent by the original donors; nor was it the case of the first defendant that he was appointed a trustee by them. Paragraph 4 of the plaint and para. 3 of the written statement made the positions taken up by the plaintiff and the first defendant respectively absolutely clear. Paragraph 4 of the plaint runs thus:
The founders of the first endowment not having by the deed of dedication appointed any trustees for the same, subsequently arranged to mange it them selves through the defendants the first defendant for leasing out the endowed land and collecting rent theron and the 2nd defendant for celebrating the kalyana utsavam on their behalf and so they managed it for a number of years.
5. Paragraph 3 of the written statement runs thus:
Being one of the largest donors and evincing keen interest the first defendant was alone in possession of the land and exercised rights of management with reference to the suit land and carried out the purpose of the endowment. He thus exercised rights of trusteeship with reference to the endowment in question since the gift. He exercised such rights adversely for over 12 years and acquired rights as such in the management. It is absolutely false that this defendant acted on behalf of donors or that they have any right to nominate him as claimed in the plaint.
6. The plaintiff's case is that as by the deed of dedication no person was appointed as a trustee the donors carried on the managment through the first defendant without appointing him either as a trustee or as an agent. The first defendant's case is that ever since the endowment was gifted to the temple he has been in possession of the properties and adversely exercising rights for over 12 years. That no appointment of trustee was claimed by him also appears to be clear from the evidence given on the side of the defendants. D.W. No. 1 states in examination-in-chief. In cross-examination be states:--'We did not make any arrangement as to management of gifted lands and conduct the utsavam.' After the gifts it was Ponnayya who leased the lands and conducted the utsavam. We 19 donors did not appoint K. Ponnayya first defendant to manage the lands gifted and conduct the kalyana utsavam.' D.W. No. 5 (first defendant) states that 'there was no arrangement as to mangement of lands and utsavam at any time after the date of gift or on date of gift.' The evidence thus given is quite consistent with the pleadings. The question of the appointment of the first defendant as trustee, therefore, does not specifically arise. Strictly speaking as regards the trusteeship put forward by the first defendant, the only question to be considered will be whether he has acquired such trusteeship by adverse possession. However, since para. 3 of the written statement is a little vague and since the suggestion has been made that the circumstances show that the first defendant was impliedly appointed as a trustee though not specifically and as we have not to consider the nature of the management by the first defendant for a number of years, in connection with the plea of adverse possession, we will examine the evidence from this standpoint also especially as the Subordinate Judge has given a finding on that point in his favour.
7. The questions, therefore, arising for consideration are,
(1) Whether the circumstances show that the first defendant was appointed trustee by the founders of the trust.
(2) Whether the first defendant has acquired rights of trusteeship by prescription; if so, whether this suit is in any event maintainable without validy removing him from office.
(3) Whether the donors or other heirs have any right of appointing or electing a trustee.
(4) Whether the plaintiff's election as a trustee is true, valid and binding on the defendants.
(5) Whether the suit is bad for want of sanction under Section 92 of the Civil Procedure Code.
8. The first two points may be considered together as both of them depend upon the evidence that has been given as regards the management of the suit property and the conduct of the utsavam ever since the endowment was founded in 1892. As rightly observed by the Subordinate Judege, as there are two factions in the village each trying to support its own candidate, the oral evidence given on either side should not be believed and acted upon except where it is borne out and corroborated by the documentary evidence. We have, therefore, to confine our attention more to the documentary evidence, and the learned Vakils have also followed the same course in their arguments.
9. The documents that relate to the management of the suit lands, the conduct of the utsavam and the assertion of title by the first defendant are Exs. E of 1896, E. (1) (19-11-1914), E. (3) 1-12-1914, E. 2 (6-12-14), Z. (13 3-1915), IV (23-4-1915) 1 (17-9-1917), 111 (2311-1917), XVII (8-12-17), VII (22-1-1918), F. (25-4-1918), G. (25 4-1918) G. (2) (25-4-1918), H. (3 4-1919), J. (2-7-1920). X. (18-4-1921) and Y. (19-4-1921).
10. Exhibit N is a petition sent by the first defendant to the Sub-Collector, Kishna District regarding the post of Village Munsif of Moppary. In the course of urging his claims for the post he states thus: 'The deceased Village Munsif Jagganayakulu Kalluri Ethirajulu and others put me in charge of the festival of Gopalaswami enshrined at Mopparu and all the responsibility relating to the cultivation of the private maniams consecrated to the deity. Every year I cultivate the private maniams of the deity and celebrate the festival of the deity. I am the pattadar in this matter.' This document shows clearly the true position of the first defendant with respect to the management of the affairs of the temple. He was simply put in charge of the festival and the cultivation of the lands consecrated to the deity. That is how he himself states his position. No one disputes that the lands of the temple was leased out and the rents were collected by the first defendant for a long time, namely, till about 1914 when troubles arose. The document does not state that the first defendant was appointed as trustee by the founders of the endowment. In 1914 when the revision of adangals took place disputes arose between the parties as to in whose name the 'endowed' lands should be registered. Apparantly, the plaintiff's name alone was included in the register at first, and then, the first defendant filed a statement (Ex. E. (1) requesting that his name also might be included. This is an important document as it shows how far the first time troubles arose between the plaintiff and the first defendant. In it, the first defendant states that he and the plaintiff alone are dharmakarthas and that they have agreed to the inclusion of both their names. He concluded that document with a request that the two may be noted as dharmakarthas. It is noticeable that in this document the first defendant does not put forward his exclusive title for trusteeship, nor does he state that he was appointed as a dharmakartha by the donors. In his evidence he stated that 'plaintiff tricked him into making the statement' contained in E. but except his assertion there is no evidence to support it. When the residents of the village heard that the first defendant had requested for the inclusion of his name also in (he revenue registers they protested and prayed to the authorities that, if the names of the two defendants were included, 'the names of all those who gave the land may be entered.' They had no objection re cowles and khats being given by the plaintiff in respect of the suit land (see Exs. E. (3) and E. (2). The Special Deputy Tahsildar rejected the request of the first defendant and the latter preferred an appeal against his order (Ex. Z). On this the Special Deputy Collector passed the order that all names should be removed from the register and that the land should be registered in the name of the god to whom it had been assigned (Ex. IV). The group of documents that have been just examined does not in any way support the case of the first defendant that he was appointed trustee; nor does it show that he was carrying on the management adversely to the founders of the trust. He was put in charge of the cultivation of the suit lands as mentioned in Ex. N. and the donors apparently allowed this management to continue as it was convenient. This in substance is the case raised by the plaintiff in his pleadings. In 1917 for the first time the first defendant asserted that he was the dharmakartha of Sir Venugopala temple. In Ex.-1 a karar relating to water executed by P.W. No. 4 and his son in favour of the first defendant he is described as the dharmakartha of Sri Venugopalaswami Varu. In the same year the plaintiff and the 2nd defendant filed a petition before the Collector for permission to institute a scheme suit making the first defendant and others counter-petitioners. In para. 4 of that petition it is stated that the first defendant has been leasing out the lands in his own name and that this arrangment was allowed only for the purpose of convenience. Paragraph 9 contains the statement that 'there are no legally constituted trustee or trustees to the properties of the said deity' (see Ex. 3). The Collector after making an enquiry refused his permission (See Ex. 7). This group of documents also does not advance the case of the first defendant except to this extent that in 1917 he began to assert for the first time that he is a trustee of the temple. Till then, the evidence does not show that there was any such assertion.
11. The next group of documents relates to disputes between the first and 2nd defendants as regards the conduct of the kalyana utsavam. In this statement before the Stationary Sub-Magistrate (Ex. G. 2) dated the 25th of April, 1918) the first defendant stated 'there are no dharamakarthas for this deity ' (Sree Venugopalswami). If he were a dharmakartha himself he would not have made this statement. The Sub-Magistrate (See Ex. F) prohibited the first defendant from interfering with the performance of the utsavam by the 2nd defendant, and then he instituted a suit against the 2nd defendant. This was compromised. See (Ex. E.J). These documents also do not advance the case of the first defendant in any way.
12. The razi not having settled the matters in a satisfactory way, the donors of the endowment who had not till then taken any definite steps to settle the quarrels between plaintiff and the first defendant and between defendants Nos. 1 and 2, took the matter into their own hands and filed a petition (Ex. X) in the Court of the Stationary Sub-Magistrate of Tenali asking the Magistrate to take immediate steps to prevent the first defendant from performing the kalyana utsavam which was to come off on the 18th of April, 1921. In his statement Ex. Y, the first defendant stated thus: 'I and my family people gave some land to the temple of. Venugopalaswami. Mine is the major share. I performed for about 30 years. As my share is big, they arranged that I should perform the festival'. Later on it states ''I was not appointed dharmakartha in the Government accounts. There is no record of the arrangement we made in 1892'. Here also there is no assertion that trusteeship was obtained by appointment or by adverse possession. The statement that the donors arranged that the first defendant should perform the festival is directly contradicted by his own evidence as D.W. No. 5 which we have already referred to, namely 'there was no arrangement as to management of lands and utsavam at any time after the date of gift or on date of gift'. We have now exhausted the evidence that has been referred to in the case.
13. The evidence shows that the first defendant was never appointed as an agent or a trustee by the donors of the endowed lands, that he was simply allowed to lease out the temple lands and managed the utsavam as the donors found it convenient to lease those things in his hands, that though he was in such management for a considerable number of years, he always continued to be in possession with the consent of the donors, that he never for a moment asserted that he was a trustee till about 1917 or thereabouts and that he did not oust the donors from management at any time. The whole evidence shows, as the plaintiff says in the plaint, that the founders of the endowment not having by the deed of dedication appointed any trustee for the same, managed the endowed lands themselves through the first defendant as that method of management was found very convenient. We are not able to infer from the circumstances that the first defendant was either expressly or impliedly appointed as a trustee, or that he obtained the right of the trusteeship by adverse possession. It, therefore, follows that the suit is maintainable with validly removing the first defendant from office.
14. The next question for consideration is whether the donors or their heirs have any right of appointing or electing a trustee. On behalf of the appellant it is contended that the donors or their heirs under Ex. (1) have a right of appointing or electing a trustee as they were the 'founders' of the kalyana utsavam and as they have not in any way divested themselves of the power of making any such appointment. On the other hand, it is contended that the donors in this case are in the position of persons who subsequent to the foundation furnished additional contributions to the trust, that their benefaction is to be regarded as nothing but an accretion to the existing foundation and that they are, therefore, not its founders and so have no power of appointing the trustee. The question for decision is whether the endowment under Ex. A1 constitutes'a foundation of a trust, or is it simply an 'accretion' to an existing trust. The temple is an ancient one. It is practically admitted that at the time of the endowment it had no trustee and no lands for its upkeep. Though there is stray statement in the evidence that the temple has inams, we know nothing definitely about these or as to who managed them. The evidence is somewhat discrepant as to whether there was any kalyana utsavam celebration or not prior to 1882. There may have been now and again occasional celebrations of the utsavam, during some years, but it is clear from the evidence of D.W. 5 that such celebrations ceased altogether with the death of the first defendant's father and in 1892 the donors wanted to revive the utsavam. There is no evidence to show that prior to that year there was any permanent institution of kalayana, utsavam to the deity with a permanent fund for meeting its expenses. A fund for meeting its expenses was brought into existence for the first time in 1892 under Ex. A1 under which the kalayana utsavam began to be celebrated thereafter regularly. In these circumstances we agree with the opinion of the Subordinate Judge that the donors under Ex. A1 are the real founders of this utsavam and that the endowment is not an accretion to an existing trust as contended for by the respondent. Except an unendowed temple and a deity, nothing existed as a trust to which the endowment in question could be an accretion.
15. The law is well-settled that when the worship of an idol has been founded, the shebaitship is vested in the founder and his heirs unless he has disposed it of otherwise or there has been some usage or course of dealing which points to a different mode of devolution See Gossami Sri Gridhariji v. Romanlalji Gossami 17 C. 3 : 16 I.A. 137 : 13 Ind. Jur. 211 : 5 Sar. P.C.J. 350 : 8 Ind. Dec. 541 Geuranga Saha v. Sudevi Mata : AIR1918Mad1278 and Kali Krishna Roy v. Makhan Lal Mukerji : AIR1923Cal160 . Exhibit. A1 the endowment deed makes no provision either for the management of the endowed lands or for the performance of the festival. It should, therefore, be held that the right to manage the lands and to perform the festival remained vested in the donors and their heirs, and as they had not divested themselves of the power of appointing a trustee and had not made any such appointment it is clear that they had every right to appoint the plaintiff as trustee to manage the lands and conduct the utsavam Gauranga Sahu v. Sudevi Mata : AIR1918Mad1278 On this point we agree with the opinion of the learned Subordinate Judge.
16. The next point is whether the appointment of the plaintiff as trustee is true, valid and binding on the defendants. The learned Subordinate Judge deals with this question in para. 17 of his judgment. He finds that the meeting at which the plaintiff was appointed trustee was a properly constituted one and that the plaintiff was appointed by a majority of the donors. The evidence supports his finding. It is clear that in case of disagreement between the donors the appointment could be made by a majority vote. See Nethiri Menon v. Gopalan Nair 30 Ind. Cas. 713 : 39 M. 597 : 2 L.W. 714 : 29 M.L.J. 291 : (1915) M.W.N. 586 : 18 M.L.T. 220 and Wilkinson v. Malin (1832) 149 E.R. 268 : 2 Tyr. 544 : 2 C. & J. 636 : 1 L.J. Ex. 234 : 37 R.R. 791 and this is what seems to have happened in this case. As we have already found that there was no one validly holding the office as trustee at the time when the plaintiff was appointed, his appointment is valid and binding on the defendants.
17. The last question for consideration is whether the suit is bad for want of sanction under Section 92 of the Civil Procedure Code. It is argued that the reliefs claimed in the plaint are those set out in Section 92 of the Code and that as no sanction of the Collector or the Advocate General in writing has been obtained, the suit does not lie. Reference has been made to Narayan Bhikaji Khanolkar v. Vasudev Vinayak Prabhu : AIR1924Bom518 and Nilkanth Devrao v. Ram Krishna Vithal 64 Ind. Cas. 353 : 46 B. 101 : 23 Bom. L.R. 876 : A.I.R. 1923 Bom. 67 but it. has been decided by a Full Bench of this Court See Appanna Poricha v. Narasinga Poricha : AIR1922Mad17 that when a suit is filed not for the purpose of vindicating any rights of the public in a public religious or charitable trust but has been filed only for the purpose of establishing the personal or individual rights of the plaintiff as trustee, the suit is maintainable without the sanction referred to in Section 92 of the Civil Procedure Code though the reliefs claimed may be some or all of the reliefs set out in that section. The present case comes clearly within the scope of the decision in Appanna Poricha v. Narasinga Poricha : AIR1922Mad17 and is therefore, not bad for want of sanction under Section 92 of the Code.
18. As a result of our findings the appellant is entitled to succeed in this appeal. The Subordinate Judge states with reference to issue No. 6 (see para. 20 of his judgment) that 'in case the plaintiff succeeds in the suit, he may be entitled to recover Rs. 200 per year from the first defendant in respect of the year referred to in the plaint'. This finding has not been questioned before us. We, therefore, allow the appeal and give a decree to the appellant as prayed for with this modification that he will be entitled to recover only Rs. 200 per year from the first defendant in respect of the years referred to in the plaint. The appellant will have his costs from the first defendant both here and in the Court below