M.M. Ismail, J.
1. One Ananthanarayana Iyer, who himself had no issue, had three brothers by name Ramaswami Iyer, Sitarama Iyer and Venkatasi bramani. One of the sons of Ramaswami Iyer is Krishnaswami. The only son of Sitarama Iyer is Sushan and the only son of Venkatasubramani is Venkataramanaswami. The parties who are really interested in these two Second Appe is are Seshan who is the appellant in both the appeals and Venkataramanaswami and Krishnaswami and they will be referred to by their names in the course of this judgment. Ananthanarayana Iyer was a trustee of three temples, namely, Kasivisweswaraswami Temple, Varadarajaperumal Temple and Ganesha Baladanday thapani Temple. In respect of these temples, he had been performing certain festivals out of tasdik allowance given by the Government. Finding that the tasdik allowance was insufficient for the performance of the festivals, he was spending Rs. 200 every year out of his property for the performance of those festivals. With a view to render the performance of those festivals permanent, he executed a deed of endowment, dated 17th May, 1933, marked as Exhibit A-1. In that document, he referred to the fact that he had been the trustee of the temples and had been performing the festivals out of his income and he desired to make a permanent arrangement for the performance of those festivals as he was then aged 60. The deed further recited that since he desired that those festivals should be performed even after his lifetime without any failure or defect, he was giving away by that document the properties described in the Schedule thereto worth Rs. 500. One of the recitals contained in that deed was that in the previous year, he had made two new rahams spending about Rs. 2,000 for Ganesha Baladanda uthapaniswami and in the month of Th i on Poosa Nakskalhiram R thots vam for the temple should be performed out of the income from the properties endowed by him by spending Rs. 100, and the balance of the Income should be spent for the festivals of the other two temples. He appointed himself as the first trustee and he appointed five others as trustees to function after his death. One of the five is the appellant himself. The deed provided that after the death of the founder, the five trustees should lease out the property endowed and after paying the Government revenue etc., should utilise the balance of income for the purpose referred to earlier and they had to carry out the functions according to the opinion of the majority. The deed further provided that if there was any vacancy in the trusteeship of the said five persons, the vacancy should be filled up by the Brahmin Mahajanams permanently residing in Appukudal Agraharam. The execution of this document is not disputed. Ananthanarayana Iyer executed two other documents on 24th March, 1953, marked as Exhibits A-8 and A-9. Under Exhibit A-8, he purported to cancel the Deed of Endowment, namely, Exhibit A-1. He stated in this document that he had become aged 80 by that time, and the document contained recitals practically identical with the recitals contained in Exhibit A-1 so far as the endowment was concerned. However, he stated that he was cancelling that deed of endowment. He gave the following as reasons for the cancellation.
2. He had appointed five trustees to junction after him; when he was residing in Appukudal and Erode, he himself was performing the festivals of the two temples and the Thai Poosa Rathatsavam. Afterwards, his brother Sitarama Iyer on his authority, was performing those festivals and that after the death of Sitarama Iyer, his son, the appellant herein was authorised to conduct those festivals. However, during the four years when the appellant herein was asked to conduct the festivals, he did not give proper accounts for the performance of Rathotsavam and after an eye operation in 1952, he himself was not able to perform the Rathotsavam festival and he came away to Bangalore and he asked the five trustees who were to succeed him to perform the Rathotswam festival by writing to them. Except Venkataramanaswami who met him and told him that he would perform the Rathotsavam festival, nobody else sent a reply. Further, he stated therein that he had provided in Exhibit A-1 that any vacancy in the trusteeship of the five to succeed after him should be filled up by the Brahmin Mahajanams permanently residing in Appukudal Agraharam. By the time of Exhibit A-8, they had degenerated and most of the Brahmins had left the place. These were the reasons which he gave in Exhibit A-8 for cancelling Exhibit A-1.
3. On the same date, as mentioned already, he executed Exhibit A-9. Under that document, he purported to endow the identical properties for the same festivals and appointed Venkataramana-swami as trustee. Based upon Exhibit A-9, Venkataramanaswami instituted O.S. No. 59 of 1961, impleading Seshan and Krishnaswami as defendants for a declaration that Venkataramanaswami and Krishnaswami alone are entitled to be trustees and for an injunction against Seshan. The case of Venkataramanaswami was that the only valid trust deed was Exhibit A-9 and Exhibit A-1 was ineffective and invalid. The learned Additional District Munsif of Erode who tried the suit held that Exhibit A-1 was a valid deed of dedication and Ananthanarayana Iyer had no power to revoke the same and consequently, Venkataramanaswami had not acquired any right to the trust properties, with the result, the suit was dismissed on 6th October, 1962. As against that dismissal, Venkataramanaswami preferred an appeal and the learned Additional Subordinate Judge of Erode on 21st December, 1964 in A.S. No. 225 of 1962 allowed the appeal and decreed the suit holding that Exhibit A-1 did not constitute a valid and effective dedication. It is against this judgment, the first defendant in that suit has preferred S.A. No. 108 of 1966.
4. As soon as the learned Additional District Munsif of Erode dismissed O.S. No. 59 of 1961, one Subramania Iyer representing the Trust and on behalf of the trustees appointed under Exhibit A-1 instituted O.S. No. 17 of 1963 on the file of the Court of Subordinate Judge, Erode, for a declaration that the plaintiff had a right to manage and conduct the objects of the endowment and to be in possession of the properties in question. That suit came to be disposed of by the very same learned Additional Subordinate Judge who disposed of A.S. No. 225 of 1962 and taking the same view, he dismissed the suit. Against that dismissal, an appeal was preferred to the learned District Judge of Coimbatore and the learned Second Additional District Judge confirmed the dismissal. Thereafter, the present second appeal (A.S. No. 862 of 1969) was preferred on behalf of the Trust by the same Subramania Iyer. The said Subramania Iyer died and Seshan has been transposed as the appellant representing the Trust in this appeal.
5. The sole question for consideration is whether Exhibit A-1 trust was validly created and if so, that trust could not be subsequently revoked under Exhibit A-8, with the result, neither Krishnaswami nor Venkataramanaswami would have any right to the property under Exhibit A-9 and it is only Seshan and Venkataramanaswami, two of the survivors of the five trustees mentioned in Exhibit A-1 who would be entitled to function as trustees, Ananthanarayana Iyer himself having died in 1956.
6. I found it rather difficult to follow the argument of Mr. Gopalaswami Iyengar who appeared for Krishnaswami as to what exactly his case was with regard to Exhibits A-1, A-8 and A-9. One can understand that Exhibit A-1 was not a valid endowment and, therefore, Exhibit A-9 alone is a valid endowment. Equally one can understand the argument that Exhibit A-1 was a valid endowment and all that Ananthanarayana Iyer purported to do under Exhibit A-9 was to change the line of succession prescribed under Exhibit A-1. What Mr. Gopalaswami Iyengar submitted was that Ananthanarayana Iyer did intend to create an endowment under Exhibit A-1 but did not divest himself of his title to the property and was trying to feel the way through to find out whether anybody after him would be able to carry out the trust and in that sense, no effective endowment came into existence. When Ananthanarayana Iyer found out that the trustees named by him in Exhibit A-1 did not take interest in the trust, he changed the line of trustees by Exhibit A-9 and formally purported to revoke Exhibit A-1 itself by executing Exhibit A-8. The formal revocation was necessitated by the fact that under Exhibit A-1, Ananthanarayana Iyer was to be trustee for his life and the other five trustees would take office only on his death, but under Exhibit A-9, even during his lifetime, he was appointing Krishnaswami and Venkataramanaswami as trustees. To the extent to which I have been able to follow his argument, is this:
Notwithstanding a definite and clear intention to create an endowment and notwithstanding the actual execution of the deed of endowment, Ananthanarayana Iyer did not give effect to his intention by treating the property as trust property and he treated the property as his own property and only by Exhibits A-8 and A-9, he created an effective endowment and by the document Exhibit A-9, he appointed Venkataramanaswami and Krishnaswami as trustees. I am clearly of the opinion that there is no substance whatever in this argument. I have referred to the terms of Exhibit A-1. Exhibit A-1 unambiguously and in the clearest possible terms states that he has given away the properties for the performance of the festivals since he intended and desired that the festivals should be performed even after his death. Not only he gave away the properties but also he appointed himself as the first trustee and provided for the succession of trustees. Mr. Gopalaswami Iyengar repeatedly contended before me that there was no transfer of patta, that there was nothing to show that the festivals were performed out of the income from the properties, that there were no accounts maintained by Ananthanarayana Iyer and that even Mr. Seshan and other persons who were named as trustees to succeed Ananthanarayana Iyer under Exhibit A-1 were not aware of the existence of Exhibit A-1 itself. In my opinion, none of these facts affects the validity and the actual creation of the endowment under Exhibit A-1. With regard to the transfer of patta, it should not be forgotten that Mr. Ananthanarayana Iyer himself was functioning as trustee of the temples and even under Exhibit A-1, he was to function as trustee of the properties in question. If so, the question of transfer of patta loses all its importance unless somebody insists upon a formality that the patta which stood in the name of Ananthanarayana Iyer previously in his own right will have to stand now in the name of Ananthanarayana Iyer himself in the capacity of trustee. There is one other factor which should be taken note of. The properties endowed under Exhibit A-1 were meant to be utilised not for one temple but for three different temples and the possibility of the trustees for the three temples being different in future, cannot be ruled out. As a matter of fact, one of the points that had been argued before the Court below is whether any of these temples comes within the scope of Hindu Religious and Charitable Endowments Act, in which event, the authorities created under that Act will have jurisdiction over the temple and the properties attached thereto. In view of these features, no importance or significance whatever need be attached to the fact that no transfer of patta was effected. With regard to the other features referred to by Mr. Gopalaswami Iyengar, there cannot be a more effective answer than what Mr. Ananthanarayana Iyer himself had given in Exhibit A-8 while purporting to revoke Exhibit A-1. As I pointed already, in Exhibit A-8 Mr. Ananthanarayana Iyer had categorically stated that so long as he was staying in Appukudal or Erode, he himself was performing the festivals and thereafter he authorised his brother Sitarama Iyer to perform the festivals and on his death, he authorised Seshan to perform the festivals. All these recitals contained in Exhibit A-8 indisputably establish that the endowment created under Exhibit A-1 was given full effect to and Mr. Ananthanarayana Iyer was acting pursuant to that endowment and whenever he himself was not personally able to perform the festivals, he had authorised others to perform the same. I am placing so much reliance on Exhibit A-8 because the case of Krishnaswami and Venkataramanaswami depends upon Exhibits A-8 and A-9.
If Exhibits A-8 and A-9 are not there, they are nowhere in the picture. Therefore, to the extent to which they rely upon Exhibits A-8 and A-9, they are bound by the recitals contained therein and those recitals, as I pointed out already, unambiguously show that Exhibit A-1 endowment was given effect to and was acted upon. Consequently, Ananthanarayana Iyer had no right whatever to revoke that endowment as he purported to do under Exhibit A-8.
7. There is another aspect of the matter which should be taken note of. It is well settled that the production of a registered instrument effecting a transfer of property for pious and religious purposes is prima facie evidence of dedication and the onus lies on the party setting up the deed to be nominal to prove the same. I have already referred to the unambiguous terms in which Exhibit A-1 had been executed. Consequently, notwithstanding the existence of Exhibit A-1, if the case of Krishnaswami and Venkataramanaswami is that there had been no effective dedication, the onus was on them to establish the same. The learned Additional District Judge does not appear to have borne this aspect in mind. His conclusion as recorded in paragraph 19 of his judgment is that the documentary evidence relied upon by the plaintiff (Subramania Iyer) did not show unmistakably that Srinivasa Iyer manifested any unequivocal intention to divest himself of the endowed properties. On the other hand, the approach of the learned Additional District Judge ought to have been to find out whether the defendants in the suit had established that notwithstanding the existence of Exhibit A-1, Ananthanarayana Iyer did not divest himself of the endowed properties. As I pointed out already, great reliance has been placed upon the absence of transfer of patta. As a matter of fact, in paragraph 17 of the judgment, the learned Additional District Judge states:
This is a vital factor which clinches the issue that Ananthanarayana Iyer had not divested his right in the properties.
I have already referred to the circumstances of the case in which the absence of transfer of patta will have absolutely no significance whatever to affect the effectiveness of the dedication in the particular case. Yet another circumstance on which reliance has been placed is Exhibit B-1, a lease deed dated 16th February, 1944, executed by Ananthanarayana Iyer himself in which he leased the suit properties as if they were his own properties. Undoubtedly, this lease deed will have some relevancy to the question under discussion. However, the affirmation of the execution of Exhibit A-1 and the subsequent conduct pursuant thereto referred to in Exhibit A-8, which is subsequent to Exhibit B-1, will completely deprive this statement or recital contained in Exhibit B-1, of any significance. Yet another circumstance to which reference has been made, which I have also referred to already, is the fact that even Seshan had stated that he came to know of Exhibit A-1 only in 1948. In my opinion, this again has no significance whatever because Seshan was one of the trustees to come into the office on the death of Ananthanarayana Iyer and, therefore, if Seshan was not aware of the existence of the document during the lifetime of Ananthanarayana Iyer, it will not in any way affect the truth of the validity or effectiveness of Exhibit A-1. As a matter of fact, the recital contained in Exhibit A-8 which is dated 24th March, 1953, that four years prior to that, he had asked Seshan to conduct the festivals, will clearly substantiate and corroborate the case of Seshan that he came to know of the existence of the document only in 1948 because only then Ananthanarayana Iyer himself had asked Seshan to conduct the festivals on his behalf. Having regard to these circumstances, I am clearly of the opinion' that Krishnaswami and Venkataramana-swami had not discharged their burden of proving that Exhibit A-1 did not really create an endowment and Ananthanarayana Iyer did not divest himself of his title to the properties in question.
8. In view of the above conclusion, in my opinion, no other question can possibly arise in the second appeals. However, Mr. Gopalaswami Iyengar contended, as I pointed out already, that Exhibit A-8 is merely a formal document revoking Exhibit A-1 and what Ananthanarayana Iyer really intended to do was to change the line of succession. In my opinion, having regard to the pleadings in this case, such a plea is not open to Krishnaswami and Venkataramanaswami since they did not have a consistent case in this behalf.
9. In O.S. No. 59 of 1961, Venkataramanaswami stated in his plaint that on 24th March, 1953, Ananthanarayana Iyer executed a deed endowing certain properties of his, for the purpose of Thaipoosa Rathotsavam and under the said settlement deed, Venkataramanaswami and Krishnaswami were appointed as trustees and were directed to perform the Thaipoosa Rathotsavam for the temple of Sri Ganesa Baladhandayudhapani every year. In paragraph 5 of the plaint, he proceeded to state that even prior to the deed of settlement dated 24th March, 1953, Ananthanarayanai Iyer appointed five trustees for the performance of the Utsavam of whom Seshan was one and Seshan did not carry on the objects of the trust and he did not properly utilise the funds nor did he keep proper and true accounts and the donor was compelled to cancel the appointment of Seshan and others by means of a registered deed dated 24th March, 1953, on account of the mala fides on the part of the first defendant in not carrying the objects of the trust honestly and efficiently. He further averred that the cancellation of the deed had to be executed solely with a view to remove Seshan from doing any Utsavam in the Sri Ganesa Baladandayudhapani Temple and to entrust the performance of the Utsavam and manage the same in Venkataramanaswami and Krishnaswami by means of another settlement deed, dated 24th March, 1953. These averments are capable of the interpretation that there was an earlier endowment, but in 1953 all that had happened was only a change in the line of succession of the trusteeship even though the averment in paragraph 4 that on 24th March, 1953, Ananthanarayana Iyer executed a deed endowing certain properties of his, for the purpose of Thaipoosa Rathotsavam would lead to the inference that only by that document, the endowment was first created. As against this in O.S. No, 17 of 1963 Venkataramanaswami stated that with a view to have the conduct of the festival and for the performance of Rathotsavam continuously without any break the said Ananthanarayana Iyer did execute an endowment deed, dated 17th May, 1933 and he appointed himself as the sole trustee for his life and also named five trustees to carry out the objects mentioned in the deed, dated 17th May, 1933. However, he put forward the contention that the said deed never came into effect and Ananthanarayana Iyer who executed the said deed, dated 17th May, 1933, never divested himself of the ownership of the properties and in fact he did not act as the trustee according to the terms and recitals of the said deed but he himself retained the ownership of the properties and treated the properties as his own even subsequent to the execution of he said deed. To the same effect is he averment contained in the written statement of Krishnaswami also who stated in paragraph 3 therein that even though Ananthanarayana Iyer executed the trust deed on 17th May, 1933, the said document was not valid in that there was no divestiture and that the donor himself had appointed him as a trustee From this, it would be seen that Krishnaswami and Venkataramanaswami took the stand in O.S. No. 17 of 1963 that there was no valid endowment in 1933 at all. If there was no valid endowment in 1933, the question of merely changing, the line of succession of the trusteeship in 1953 will not arise. On the other hand, as I pointed out already, the terms of Exhibit A-8 make it clear that Ananthanarayana Iyer was cancelling or revoking Exhibit A-1 itself, which as I have held, he was not competent to do.
10. Even assuming that the combined effect of Exhibits A-1, A-8 and A-9 is merely a change of succession in the line of trusteeship, I am of opinion that Ananthanarayana Iyer was not competent to do so.
In Narayana Chandra Dutt and Ors. v. Smt. Bhuban Mohini Basu Mallik : AIR1934Cal244 , it was held that
where a founder of a Hindu endowment divests himself of properties dedicated for sheba but appoints himself as the first she bait and lays down the line of succession of she baits, he cannot alter the line, when once the gift takes effect, unless it be for the benefit of the deity or such power has been reserved.
In M. A. Ramaswami Thevar v. Madras Hindu Religious Endowments Board and Anr. : AIR1954Mad1110 , it was held that it is possible for the founder of a mutt or institution to efface himself by surrendering his rights in the mutt or institution in favour of an individual or institution and once the appointment is made and the line of devolution is laid down, it is not competent for the founder to alter or revoke it afterwards ; but if the right of revocation or alteration has been reserved at the time when the grant was made, then he can do it.
11. Having regard to the above two decisions and the terms in which the line of succession has been laid down in Exhibit A-1 it is clear that Ananthanarayana Iyer had not reserved any power to alter the line of succession laid down in Exhibit A-1 and, therefore, he did not have any power thereafter to alter the line of succession. As against this Mr. Gapalaswami Iyengar relied on a Bench decision of this Court in Jayarama Naidu v. Tirupathi and Anr. : AIR1972Mad183 in support of his contention that a founder can certainly alter the line of succession. I am of opinion that this decision is not of any assistance to support the case of his clients. What happened in this case was that one Srinivasa Naidu purchased in 1881 the properties involved in that case and constituted the same as a trust or endowment. The founder nominated his brother's son Nayeena, to succeed him as trustee, but made no further provision for devolution. Nayeena died in 1908. Parankusam, the son of Srinivasa Naidu, succeeded to the office and held it between 1922 and 1936. He died in 1936 leaving his widow Govindammal and a will. He nominated Govindammal to be the trustee after his lifetime and provided further that she might, according to her will and pleasure, nominate any one as a trustee to succeed her to perform the objects of the trust. She accordingly nominated her sister's son by a will and died on 28th November, 1958. It is that nomination which was challenged in that case. Dealing with that question, this Court observed thus:
If the office of trusteeship is not property in the sense we have explained above, Gauranga Sahu v. Sudevi Mata : AIR1918Mad1278 , will, in our opinion, govern the decision in the instant case. Sir John Wallis, C.J. with whom Abdur Rahlm, J. concurred held the view that it was competent to the heir of the founder of a shrine in whom the trusteeship had vested owing to the failure of the line of the original trustees, to create a new line of trustees. The rule was actually based on the presumed intention of the founder that the heirs should be at liberty to make fresh arrangements for devolution of the trust instead of leaving it to devolve in the family. Though that was not a case of nomination made by a Widow, the ratio of the decision applies to her too when either she took the office of trusteeship as an heir or as a nominee of the previous heir or nominee.
This itself clearly would show that that decision has no application to the facts of the present case, because in this case, the founder himself had laid down the devolution of line of succession and it was he during his life-time who purported to alter that line of devolution. Therefore, this decision is not of any assistance to support the contention of the learned Counsel.
12. The only other question to be considered is with regard to the form of relief to be granted to the parties. I have already referred to the fact that O.S. No. 59 of 1961 was instituted by Venkataramanaswami for declaration and injunction. Since I have held that Exhibits A-8 and A-9 are not valid, Venkatararamanaswami would not be entitled to any relief based upon Exhibits A-8 and A-9. On the other hand, I have also referred to the fact that Seshan and Venkataramanaswami are the only two survivors of the five trustees mentioned in Exhibit A-1 to succeed Ananthanarayana Iyer. Therefore, Seshan and Venkataramanaswami will be joint trustees in respect of the suit properties and consequently, Venkataramanaswami would not be entitled to an injunction as against Seshan, with the result that the suit for injunction instituted by Venkataramanaswami as against Seshan will stand dismissed. Before doing so, I must refer to one argument advanced by Mr. M. S. Venkatarama Iyer, the learned Counsel for the appellant. According to him Venkataramanaswami had repudiated the trust and, therefore, he is not competent to continue as a trustee. I am of opinion that this argument is misconceived. No doubt, Venkataramanaswami had repudiated the validity of Exhibit A-1, but he conceded that a trust was created under Exhibit A-9. Consequently, it is not repudiation of the trust as such, but it is a repudiation of a trust under a particular document, which makes all the difference between the repudiation of a trust and repudiation of a trust under a particular document. Ultimately, Venkataramanaswami did not claim anything adverse to the trust and merely made a claim to function as trustee under Exhibit A-9. In view of this, I am unable to accede to the request of the learned Counsel to exclude Venkataramanaswami as a trustee.
13. As far as O.S. No. 17 of 1963 is concerned, in addition to claiming possession, the relief claimed is for accounting also. The reasoning which I have given in respect of O.S. No. 59 of 1961 will apply as between Venkataramanaswami and Seshan in this suit for possession as well and, therefore, Seshan will not be entitled to recover possession from Venkataramanaswami since they happened to be joint trustees. But certainly, he will be entitled to recover possession of the trust property if the same happened to be in possession of Krishnaswami since I have held that Krishnaswami has nothing whatever to do with the trust property. In addition to this, O.S. No. 17 of 1963 contains a prayer for accounting as well. There can be no answer to this claim for accounting in respect of the suit property in favour of Seshan by Venkataramanaswami and Krishnaswami, in O.S. No. 17 of 1963. The only other thing which I have to provide for, in the interests of the trust, is that having held that Venkataramanaswami and Seshan are joint trustees in respect of the suit properties under Exhibit A-1 itself, they will function as trustees performing the obligations imposed on them under Exhibit A-1, each in turn for a year. Since Venkataramanaswami has been in possession of the property all this time, his turn as trustee will come to an end on 31st December, 1972 and from 1st January, 1973 onwards, the turn of Seshan will commence for a period of one year and these turns will go on year after year in the manner indicated above.
14. There is only one other matter which must be clarified. Exhibit A-1 clearly shows that the entire income from the endowed properties should be spent for the festivals in respect of the three temples already mentioned. Exhibit A-1 has made a specific allotment of Rs. 100 to perform the Thaipoosa Rathotsavam of Sri Ganesa Baladandayudhapaniswami Temple and the balance should be spent for the festivals of the other two temples. Exhibit A-1 is of the year 1933 and the income from the endowed properties should be much more now. In view of this, out of the income from the properties, a sum of Rs. 1,000 should be spent for the performance of Thaipoosa Rathotsavam of Ganesa Baladandayudhapaniswami Temple and the balance of income should be spent for the festivals of the other two temples by Seshan and Venkataramanaswami during the respective turns as trustees.
15. The second appeals are allowed in the above terms. There will be no order as to costs throughout in both the suits. No leave in either.