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TMI Blog1921 (7) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... ime this action was brought, the 26th defendant held the office of matathipathi. He has since died and the present appellant is the head of the institution. In 1891 one Srinivasa was the matathipathi and he on March 17 of that year granted to the 2nd plaintiff, a near relative, a permanent lease of the lands in the suit, on a small quit rent of ₹ 24 a year. Shortly after the grant of the lease Srinivasa died, and was succeeded by one Samudra, who held the office until 1906, On his death the now deceased defendant No. 26 became the bead. In 1902 the 2nd plaintiff sub-leased the lands to the 1st and 2nd defendants for a period of ten years. 2. Since 1905 the math has been under the management of the Mysore State under a power of attorney, executed at first by the matathipathi Samudra and afterwards by his successor, in favour of the Dewan and his successors in office. About the same time the 2nd plaintiff conjointly with his son (the 3rd plaintiff) assigned their right and interest in the lands in suit to the 1st plaintiff. It is in evidence and, so far as appears from the judgments of the two Courts in India, does not appear to be contradicted, that it was only in 1908 that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stee merely, and that the permanent lease to second plaintiff is an alienation of math property and that 26th defendant at this distance of time could possibly have no right to such property. The alienation being ab initito void, the 26th defendant had no right to plaint property as he succeeded only in 1906 and first plaintiff had perfected his title by adverse possession for over twelve years. 6. The Subordinate Judge negatived that contention; he held upon the admissions of the 2nd plaintiff that the property in suit was "ordinary math property " and was not set apart on any specific trust; that the head of the math was not a bare trustee, " as it was admitted that the income was at his absolute disposal and that "none had a right to question him about it. " He found also that the 2nd plaintiff took the lease with full knowledge of the character of the endowment and had learnt on inquiry that " he could not safely purchase it." 7. With regard to the question of estoppel arising from the alleged acceptance of rent by the 26th defendant as the plaintiffs contended, the Subordinate Judge held : "In fact the 1st plaintiff never paid money as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies is relied upon for the appellants. It was apparently unsupported by any documentary evidence. The description of the in am as given at the close of the inquiry is that it was granted 'for the support of Vyasaraya matam' (Exhibit L.). Compare also description in Exhibit F. The evidence for the defendants is that the income from this property is not appropriated to any particular purpose but forma part of the general finds of the math. I think the grant must be held to have been made for the general purposes of the math. 10. They thus concur with the first Court that there was no "specific trust" which was the foundation of the plaintiff's case. But after examining some of the judgments of their own Court, they apparently felt constrained to hold that the decision of this Board in Ram, Parkash Das v. Anand Das (1916) L.R. 43 I.A. 73 had crystallized the law on the subject, and definitely declared the mahant to be a "trustee." It is to be observed that in that case the decision related to the office of mahant, but in the course of their judgment their Lordships conceived it desirable to indicate inter alia what upon the evidence of the usages and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comparing it with that of a bishop and of a beneficed clergyman in England under the ecclesiastical law. It was criticised, and rightly, in their Lordships' opinion, in the subsequent case, which arose also in the Madras High Court, of Kailasam Pillai v. Nataraja Thambiran. (1909) I.L.R. 33 Mad. 265 To this judgment their Lordships will have to refer further later on. 11. It is also to be remembered that a "trust" in the sense in which the expression is used in English law, is unknown in the Hindu system, pure and simple (J.G. Ghose, "Hindu Law" p. 276). Hindu piety found expression in gifts to idols and images consecrated and installed in temples, to religious institution of every kind, and for all purposes considered meritorious in the Hindu social and religious system; to brahmans, goswamis, sanyasis, etc. When the gift was to a holy person, it carried with it in terms or by usage and custom certain obligations. Under the Hindu law the image of a deity of the Hindu pantheon is, as has been aptly called, a "juristic entity," vested with the capacity of receiving gifts and holding property. Religious institutions, known under different names, ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Doss Sahoo's case the Judicial Committee call him "procurator." That case related to a khankah, a Mahommedan institution analogous in many respects to a math where Hindu religious instruction is dispensed. The head of these khankhas, which exist in large numbers in India, is called a sajjadanishin. He is the teacher of religious doctrines and rules of life, and the manager of the institution and the administrator of its charities and has in most cases a larger interest in the usufruct than an ordinary mutawalli. But neither the sajjadanishin nor the mutawalli has any right in the property belonging to the wakf; the property is not vested in him and he is not a "trustee "in the technical sense. 14. It was in view of this fundamental difference between the juridical conceptions on which the English law relating to trusts is based and those which form the foundations of the Hindu and the Mahommedan systems that the Indian Legislature in enacting the Indian Trusts Act (II of 1882) deliberately exempted from its scope the rules of law applicable to wakf and Hindu religious endowments. Section 1 of that Act, after declaring when it was to come into force and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy, and in 1817 in the Madras Presidency, the British Government had assumed control of all the public endowments and benefactions, Hindu and Mahommedan, and placed them under the charge of the respective Boards of Revenue. In 1863, under certain influences to which it is unnecessary to refer, the Government considered it expedient to divest itself of the charge and control of these institutions, and to place them under the management of their own respective creeds. With this object, Act XX of 1863 was enacted : a system of Committees was devised to which were transferred the powers vested in Government for the appointment of "managers, trustees and superintendents"; rules were enacted to ensure proper management and to empower the superior court in the district to take cognizance of allegations of misfeasance against the managing authority. Their Lordships are not giving a summary of the Act, but indicating only its general features. The Act contains no definition of the word "trustee"; it uses indifferently and indiscriminately the terms "manager, trustee or superintendent," clearly showing that the expressions were used to connote one and the same i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, 179 the position of the superior in relation to the properties of the math was laid down in terms which have an important bearing on the present case. The learned judges say there: The property is in fact attached to the office and passes by inheritance to no one who does not till the office. It is in a certain sense trust property it is devoted to the maintenance of the establishment, but the superior has large dominion over it, and is not accountable for its management nor for the expenditure of the income, provided he does not apply it to any purpose other than what may fairly be regarded as in furtherance of the objects of the institution. Acting for the whole institution he may contract debts for purposes connected with his mattam, and debts so contracted might be recovered from the mattam property and would devolve as a liability on his successor to the extent of the assets received by him. 21. The origin and nature of these maths were again considered at great length in a case which arose in the same Court in 1886. In that case (Giyana Sambandha v. Kandasami Tambiran (1887) I.L.R. 10 Mad. 375) the learned judges pronounced that the head of the institution held the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintain the math, to support the disciples and to perform certain ceremonies which are indispensable. That will be only a charge on the income in his hands and does not show that the surplus is not at his disposal." In the result, he was of opinion "that in the absence of any evidence to the contrary, the pandara sannadhi (the superior) as such is not a trustee. He is also not a life-tenant for the reasons already given." All three judges agreed in thinking that if any specific property was specifically entrusted to the head for specific purposes he might be regarded as a "trustee" with regard to that property; but that in the absence of any such evidence the superior was not a trustee in respect of any part of the endowment. 24. The point came up for discussion again in a concrete form in 1913 in Muthusamier v. Sree Sreemethanithi Swamiyar (1913) I.L.R. 38 Mad. 356, where the exact point for decision was the question of limitation. The facts which gave rise to the litigation were almost identical with the present case before their Lordships, with this difference, that the suit there was brought by the head of the math to recover possession of the leased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s suit cannot be barred by limitation. 27. That was followed in Sathianama Bharati v. Saravanabagi Ammal. (1894) I.L.R. 13 Mad. 266 In that case the superior is called the "manager." 28. In Chockalingam Pillai v. Mayandi Chettiar (1896) I.L.R. 19 Mad. 485 it was conceded that " the manager for the time being had no power to make a permanent alienation of temple property in the absence of proved necessity for the alienation." But from the long lapse of time between the alienation and the challenge of its validity, coupled with other circumstances, the learned judges came to the conclusion that necessity may reasonably be presumed. 29. From the above review of the general law relating to Hindu and Mahommedan pious institutions it would prima facie follow that an alienation by a manager or superior by whatever name called cannot be treated as the act of a "trustee " to whom property has been "conveyed in trust" and who by virtue thereof has the capacity vested in him which is possessed by a "trustee" in the English law. Of course, a Hindu or a Mahommedan may "convey in trust" a specific property to a particular individua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the head of the math in relation to its property under the Hindu law, custom and practice, was not considered; he was simply assumed to be a trustee. The pith of the judgment consists in the following words : "We have then here a suit to recover possession of immoveable property conveyed in trust and afterwards purchased from the trustee for a valuable consideration." "Conveyed in trust" is hardly the right expression to apply to gifts of lands or other property for the general purposes of a Hindu religious or pious institution. The learned judges relied on the two decisions of the Allahabad and Calcutta High Courts to which their Lordships will presently refer. The case, however, was practically decided on the exposition of the law in the case of St. Mary Magdalen, Oxford v. Attorney-General. (1857) 6 H.L.C. 189 With respect to it they say as follows : "In further support of this conclusion we would also refer to the already cited case of St. Mary Magdalen Oxford v. Attorney-General (1857) 6 H.L.C. 189 for though it is a decision on the English statute, still it contains many points of resemblance to the present, and furnishes us with the clearest ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome of these men had established khankahs where they lived and their disciples congregated. Many of them never rose to the importance of a khankah, and when they died their mausolea became shrines or durgahs. These dervishes professed esoteric doctrines and distinct systems of initiation...The preceptor is called the pir, the disciple the murid. On the death of the pir his successor assumes the privilege of initiating the disciples into the mysteries of dervishism or sufism. This privilege of initiation, of making murids, of imparting to them spiritual knowledge, is one of the functions which the sajjadanashin performs or is supposed to perform." [The endowment is maintained by grants of lands to the shrines by pious Moslems. The head of the institution, like that of a khankah, is called a sajjadanishin. The governance (tow liat) of the endowment is in his hands; he is a mutawali, with the duty of imparting spiritual instruction to those who seek it. The property of the 'shrine' is wakf 'tied up in the ownership of God.'] 33. The appointment of the sajjadanishin is regulated by usage and practice. This is referred to in the same judgment: Upon the death of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring his minority. He alleged that he became entitled to sue for possession of the alienated lands on his appointment to the office of shebait by a decree of the Court. The material defence was that the claim was barred. It should be observed that the dar-mukarrari was created in 1857 and the suit was brought after 18S8. In the judgment of the High Court the words shebait and trustee are used as synonymous and convertible terms; the expression is always "shebait or trustee." Probably the fact that the shebait has duties and obligations in connection with the dedication, influenced the employment of the word "trustee" in a general sense. Mr. Mayne uses the expression in the same general sense to connote the same idea. That the learned judge did not regard the shebait as a trustee in the specific sense may be inferred from his indecisive conclusion as to the application of Article 134 to the plaintiff's claim. It is quite clear, however, that the legal position of a shebait is quite different from that of a trustee to whom specific property is "conveyed" on a specific trust. In Prosunno Kumari Debya v. Golab Chand Baboo (1875) L.R. 2 I.A. 145, 151 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 75) L.R. 2 I.A. 145. In the case of Konwur Doorganath Roy v. Ram Chunder Sen (1876) L.R. 4 I.A. 52 a mokarari pottah of debottar lands was supported on the ground that it was granted in consideration of money said to be requited for the repair and completion of a temple, for which no other funds could be obtained. But the general rule is that laid down in the case of Maharanee Shibessouree Debia v. Mathooranath Acharjo (1869) 13 Moo. I.A. 270, 275, that apart from such necessity 'to create a new and fixed rent for all time, though adequate at the time, in lieu of giving the endowment the benefit of an augmentation of a variable rent from time to time, would be a breach of duty' in the mohant. There is no allegation that there were any special circumstances of necessity in this case to justify the grant of the pottah of 1860, which on the most favourable construction enured only for the lifetime of the grantor, Pranananda, who died in 1891, or of the pottah of 1896, which, at best, could only be deemed operative during the lifetime of Raghubananda, who died in 1900. 38. The question came up again for consideration by the Board in the case of Palaniappa Chetty v. Deivasikamo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs by the Hindu kings or chiefs who then held the country. The purposes of the dedication must therefore be gathered from established usage and practice, and that has been found by the Courts in India. Again, "valuable consideration" forms the essence of both Section 10 of the Limitation Act and of Article 134 of Sch. I. Even if this were a specific trust, which it is not, it would be ridiculous to hold that the rent reserved in the grant to the second plaintiff was "valuable consideration." 41. In the Courts below the plaintiffs rested their claim mainly, if not entirely, on art. 134. Before the Board an alternative argument has been advanced. It is contended that the second plaintiff acquired the title he is seeking to establish by twelve years' adverse possession under Article 144. That article declares that for a suit "for possession of immoveable property or any interest therein not hereby (i.e., by the schedule) otherwise specially provided for" the period of limitation is twelve years from the date when the possession of the defendant became adverse to the plaintiff. In view of the argument it is necessary to discover when, according to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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