D. Chatterjee and Teunon, JJ.
1. This appeal arises oat of a suit for rent brought by the sole surviving member of a Committee, appointed under Section 7 of the Religions Endowments Act (XX of 1863). The Committee originally consisted of three persons as required by the section, but the two other members being dead and their successors not having been appointed at the time, the suit was brought as stated above by the sole survivor. Successors to the deceased members were appointed pending the suit, but the learned Deputy Collector refused to add them as parties and the plain till chose to carry on the suit alone. The plea of the incompetency of the suit was overruled by the first Court, and was not argued in appeal before the District Judge. It has, however, been strenuously urged before us that as a point of law going to the root of the jurisdiction, we are bound to entertain the plea and we have allowed the point to be discussed. Section 7 provides that a Committee of three or more persons shall be appointed once for all by the Local Government; Section 8 provides for the manner in which the members are to be elected; Section 9 says the members shall hold office during life subject to removal by the Civil Court; and Section 10 provides for the filling up of vacancies by the electorate or, on their failure, by the Civil Court. The Committee is appointed 'once for all' by the Local Government which is functus officio thereafter, all vacancies however caused being filled up by election or by the Civil Court. Even if all the members of the Committee die, no new Committee has to be appointed by the Civil Court: see Syed Mahomed Athor v. Sultan Khan (1900) 4 C.W.N. 527.
2. The Committee, therefore, is not dissolved by the death of one or all the members, but continues as a legal entity, the personnel only being reconstituted. It has, therefore, been considered as analogous to a corporation-aggregate, and its proceedings, when not expressly provided for by the Act, have been held to be regulated by rules applicable to corporations: see Ananta Narayana Ayyar v. Kuttalam Pillai (1899) I.L.R. 22 Mad. 481. The several members of a corporation and their successors constitute but one person in law. 'There is no reason why a corporation should not continue to live, although the last of its members is dead:' Salmond's Jurisprudence, p. 298. Similarly, a Committee under Act XX is a legal person endowed with powers which do not belong to the individual members who may go and come, but this offspring of the law remains the same. It has been created 'once for all,' and does not die on the death of any or even all of its members. It may remain dormant for a time, but awakes and becomes active as soon as the vacancies begin to be filled up. The surviving member or members, therefore, of such a Committee may continue the office of the Committee until the vacancy or vacancies are filled up in due course. Mr. Lewin in his treatise on Trusts, p. 293, 12th edition, says: 'It is a well-known maxim that a bare authority committed to several persons is determined by the death of any one; but if coupled with an interest, it passes to the survivors.' The members of the Committee have not a bare authority; they can grant leases and create interests in the endowed property consistent with the purpose of the endowment, and have, therefore, an interest coupled with authority. Their position may be likened to that of guardians of the deity or institution placed in their charge. It was held in the case of Eyre v. Countess of Shaftsbury (1722) 2 P.W. 103 : 1 White and Tud. L.C. 495 that when a guardianship is devised to three persons without saying 'and to the survivor or survivors of them,' yet the survivor shall have it. In the case of Doe v. Godwin (1882) 1 Dow. and R. 259 in construing an Act of Parliament, 46 Geo. 3, C. 97, which authorised five trustees named therein to dispose of certain houses and provided in very strong terms that in the case of the death of one or more of them, the survivors should and they were Required to appoint new trustees, the Court held that the proviso was analogous to the common one in Settlements; and expressed an opinion that the clause was not imperative but merely of a directory character, so that a conveyance by four of the five trustees after the death of one of them and before the appointment of his successor was good. The provisions of Act XX of 1863 are very similar and seem to invite a similar construction. We are further supported in this view of the law by an unreported decision of Sir Francis Maclean, C.J. and Stevens, J. in a case of the same nature in Civil Rules Nos. 943 and 944 of 1903, decided on the 10th of March, 1904, where the learned Judges said 'a Committee is not ipso facto dissolved when one of its members dies, if there be provision for filling up the vacancy.' Their Lordships held that the suit was maintainable by two of the surviving members of the Committee.
3. We, therefore, respectfully dissent from the decision of the Madras Court in the case of Santhalva v. Manianna Shetty (1910) I.L.R. 34 Mad. 1 and hold that the suit was competent.
4. The next point that is raised is that of adverse possession. The defendant, however, did riot raise this point in the Courts below, and as this is a mixed question of fact and law, we do not think that we should be justified in going into it in second appeal.
5. It is further argued that the Court of Appeal has relied upon inadmissible evidence, namely, the settlement records of 1881 and 1897. The Bengal Tenancy Act, Chapter X, was extended to Orissa in September 1891, so that the settlement of 1881 was not under the Bengal Tenancy Act. It was evidently under Regulation VII of 1822. Section 9 of the Regulation provides that all lakheraj tenures shall be carefully recorded with specification of the nature of the tenure; the said records are, therefore relevant under Section 35 of the Evidence Act. The later records of 1897 were admittedly under Chapter X of Act VIII of 1885, and, as there was no dispute, the presumption under Section 109 was clearly applicable. There is, therefore, no substance in this ground also.
6. The result, therefore, is that the appeal is dismissed with costs.