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TMI Blog1904 (1) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... coming a lunatic he ceased to be the head of the mutt and that Vidyasamudra being dead at the date of the plaintiff's appointment, that appointment by the Bhimasetu Swami constituted the plaintiff the head of Bhandarkare mutt. The contention on the other side was that there was no dwandva right as alleged, that the 1st defendant's position as Swami was void of real analogy to that of a trustee, that his lunacy did not divest him of his right to the headship, that until his death there was no vacancy and that the plaintiff therefore derived no right to the mutt by virtue of the appointment relied on by him, even granting that the Bhimasetu Swami had the power to fill up a vacancy should any such have occurred. 3. The 1st defendant having continued to be a lunatic down bo his death pending the suit, the question for determination is whether the appointment relied on by the plaintiff was made in circumstances which could confer on him the status claimed, assuming that the Bhimasetu Swami had a right to nominate as alleged--in short, whether at the date of the suit or prior to it there was a vacancy in the headship of Bhandarkare mutt. 4. Now there can be no doubt that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and supporters, princes and noblemen, it goes without saying that the establishment of these mutts was followed by their being more or less well endowed. 7. As to the rights of the Swamis in relation to the mutts and their endowments there was on the one hand the cardinal principle of the law of the land that properties given for the maintenance of charities, religious or otherwise, were ordinarily inalienable, (West and Buhler, Hindu Law, pp. 201--202, Maharanee Shibessoori v. Modoornath 13 M.I.A. 270, Prosunno Kuntari v. Golapchund L.R., 2 IndAp 143, Narayan v. Chintaman I.L.R. 5 B. 393 and Collector of Thana v. Harisitaram I.L.R. 6 B. 546 and on the other, the fact that the Swarm's were not mere employees or subordinates in the institutions, but heads thereof, whose duty it was to promote learning and further the interests of religion; such heads moreover as ascetics not prone to be affected by motives incident to worldly life, requiring less restraint in dealing with property than ordinary men. It followed, therefore, that the law gave them over what remained of the income after defraying the established charges of the institution, a full power of disposition, while i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate ceremony being performed and mantra pronounced, the deity of which the idol is the visible symbol resides in it. It is to give due effect to such a sentiment, widespread and deep-rooted as it has always been, with reference to something not capable of holding property as a natural person, that the laws of most countries have sanctioned the creation of a fictitious person in the matter, as is implied in the felicitous observation made in the work already cited : Perhaps the oldest of all juristic persons is the God, hero or the saint (Pollock and Maitland's History of English Law, p. 481). 9. That the consecrated idol in a Hindu temple is a juridical person has been expressly laid down in Manohar Ganesh v. Lakshmiram I.L.R. 12 B. 274 which Mr. Prannath Saraswati, the author of the Tagore Lectures on endowments rightly enough speaks of as one ranking as the leading case on the subject and in which West, J., discusses the whole matter with much erudition. And in more than one case, the decision of the Judicial Committee proceeds on precisely the same footing (Maharanee Shibessouree Debia v. Mothoranath Acharjo 13 M.I.A. 270 and Prosunno Kumari Debya and Anr. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pal purpose of such an institution being the maintenance in circumstances likely to command due respect and estimation a line of competent religious teachers, who as already shown are given for the welfare of the foundation itself a real and so to speak beneficial interest in the usufruct, the restrictions governing the disposition whereof by them being of the nature of a mere moral obligation. Having regard to these facts it is obvious that the correct view to be taken is that in the case of mutts the ideal person is the office of the spiritual teacher Acharya, which, as it were, is incarnate in the person of each successive Swami who for the time is a real owner and not a mere trustee. 11. He is, as he would be described in England, a corporation sole. The circumstance that some controversy hang, round this phrase of the English law need not deter one from applying to cases like the present the concept which underlies it; the objection is but to the name (Wooddeson's Vinerian Lectures on the Laws of England, p. 471), while the concept itself is not peculiar to that system of Law, (Lord Mackenzie's Roman Law, VII Edn., p. 163) and is, as Mr. Salmond rightly observes, (J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of action remaining suspended during the continuance of the distemper and the vicarious discharge of his functions being provided for in accordance with the established requirements of the institution (cf. Burn's Ecclesiastical Law, Vol. I), p. 306, Title Co-Adjutor and Pope on Lunacy, 2nd Ed., pp. 370--371--a matter to which, as the evidence shows, due attention appears to have been paid by the committee appointed to take charge of the estate of the 1st defendant when the inquisition was found. 14. It is thus clear that neither on the date of the plaintiff's appointment as alleged by him, nor at the date of his suit, was there a vacancy in the headship of the mutt to be filled up by whomsoever such filling up may have had to be done. The appointment relied on by the plaintiff could not therefore be held to have conferred on him any right to the mutt, assuming the existence of the dwandva right, as to which, however, it is not in the circumstances necessary to give any opinion. 15. I would therefore dismiss the appeal with costs (one set). Vembakkam Bhashyam Aiyangar, J. 16. The plaintiff (appellant), a minor, sues for a declaration that he has been duly ordain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the estate of the 1st defend ant will be inoperative so far as the mutt and its properties are concerned--as these properties were held by the 1st defendant merely as trustee--though his appointment under Section 10 of the Act as the ' guardian' of the person of the lunatic will hold good. 17. On the first of these points, the Subordinate Judge finds that the plaintiff has entirely failed to establish that the head of the mutt forfeits or vacates his office by reason of his becoming a lunatic. He further finds that there exist no dwandva rights between the plaint mutt and the Bhimanakatte mutt and that the plaintiff's appointment was therefore invalid even if there was a vacancy of the headship of the plaint mutt. On those findings he has dismissed the plaintiff's suit; and the principal contentions raised in appeal are that the office has become vacant by reason of the 1st defendant's lunacy or that at any rate, in accordance with the principles of the law applicable to trustees, the appointment of the plaintiff as a new trustee or head of the mutt in place of the 1st defendant who has become lunatic is legal and valid and that the plaintiff has establis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he disciple Vidyasamudra never became the head of the mutt or succeeded the 1st defendant, that in fact he was never installed in the Gadhi on the declaration of 1st defendant's lunacy and that the mere fact of the disciple worshipping the mutt deities during his guru's insanity does not amount to his installation, as it is shown by the evidence on both sides that any other swami also might on such occasions perform the puja. 19. I may add that the attempt made on behalf of the plaintiff to establish that the 1st defendant has also forfeited his office by reason of his immorality has entirely failed as the 1st defendant has not, for any such cause, been outcasted or excommunicated--as was once done in the case of the Puttige swami (vide Ap. No. 66 of 1881)--in which case the head of the mutt can be properly deposed from his position. 20. No usage or custom having been proved regulating the procedure consequent on the lunacy of the head of a mutt, the important (Question to be decided is ' What is the effect of it, under the general law as regards his relation to the mutt and its endowment? On behalf of the appellant it is urged by the learned Advocate-General, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f new trustees or by analogies derived therefrom. I may also add that in the case of hereditary trustees in India and other trustees having a beneficial interest in the trust property, the principles of the English Law of Trust--embodied in the Indian Trusts Act--as to the appointment of new trustees, when a trustee becomes incapable of acting by reason of unsoundness of mind, c, are inapplicable. So far, at any rate, as mahunts and heads of mutts are concerned, the real analogy is in my opinion to be derived from the law relating to Common Law 'Corporations,' particularly 'Ecclesiastical Corporations Sole', for in many respects there is a striking similarity between these English Ecclesiastical Corporations and the ancient and well-established mutts in India like the plaint mutt. I am unable to accede to the learned Advocate-General's contention that the idea of a corporation is an advanced conception of jurisprudence unknown to the Hindu Law. Without implying that ' Trusts' in the ordinary sense are unknown or foreign to Hindu Law (see the Tagore Case) L.R.IndAp Supp. 71, I should say that the notion of a corporate body as a legal entity is clearly re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndants in this case that they could not sell the lands bestowed on the idol Sri Ranchhod Raiji. This restriction is like the one by which the Emperor forbade the alienation of dedicated lands under any circumstances. It is consistent with the grants having been made to the juridical person symbolized or personified in the idol at Dakor . Dealing with the same subject, the learned authors of the Digest of Hindu Law W. B.H.L. 201 remark: The idol, deity or the religious object is looked on as a kind of human entity and the successive officiators in worship as a corporation with rights of enjoyment, but not generally of partition or alienation, except so far as this may be necessary to prevent greater injury. Such endowments are frequently founded by subscriptions and are augmented by gifts and bequests simply to the institution. No rules have, in a majority of these cases, been formally prescribed. The intention of the founders has to bo gathered from the traditional practice and the succession is thus determined by the custom of each particular institution though this may have become embraced in some more extensive custom. And as to the management of an endowment, it is not comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be executed only against the (current) rents and profits of the debutter property, Sir Montague Smith, in delivering the Judgment of the Judicial Committee, referred to the idol as the owner of the property in an ' ideal sense', though in the nature of things, its possession and management must be entrusted to some person as shebait or manager. In Jugadamba Dosse v. Poddomonc Dosse 15 B.L.R. 318 the High Court of Calcutta observed (at page330) the ownership of the debutter property is vested in the idols, the shebaits being, sbrictly speaking, not trustees for the idol, but managers . In Narayan v. Chintaman I.L.R. 5 B. 393 and the Collector of Thana v. Hari Sitaram I.L.R. 6 B. 546 it was held on the authority of the decision of the Privy Council in Prosunno Kumari v. Golabchand L.R. 21. A. 145 above referred to, that religious endowments in this country whether Hindu or Mohamedan are not alienable, though the annual revenues of such endowments, as distinguished from the corpus, may be pledged for purposes essential to the institution endowed. 24. The religious foundations known as debutter, devastanams or temples are the most numerous in India and have the large ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm an accurate conception of the subject-matter of the Rights of Property existing in them? Above all, the following contrast to the earlier period is here unmistakeable. The ancient gods were conceived as individual 'Persons' resembling individual visible men that one sees around one and nothing was more natural than that each of them should have his own personal property, while it was only a further development of the same thought when the God who was venerated in a particular temple was represented as a Juristical Person and indeed even granted personal privileges. The Christian Church on the other hand rests on the belief in One God and it is united together by this common belief and by the distinct revelation of that one God to one Church. It was an easy matter therefore to import the same principle of unity also into Property-relations and this conception in fact finds expression in wholly different periods of time, as well in the teachings of writers as in the sentiments and mode of expression of the individual Founders of Endowments. Thus it happened quite commonly that at times Jesus Christ, at other times the Universal Christian Church, or her visible head, the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Church and Clergy' (3rd Edition, at page 74) observes: For many centuries after the Christian era the bishop was the universal incumbent of his diocese and received all the profits, which were then but offerings of devotion, out of which he paid the salaries of such as officiated under him as deacons and curates in places appointed. Afterwards when churches became founded and endowed he sent out his clergy to reside and to officiate in those churches, reserving to himself a certain number in his cathedral to counsel and assist him. The origin and growth of mutts in this country is thus described in the two Judgments of this Court already referred to : A preceptor of religious doctrine gathers around him a number of disciples whom he initiates into the particular mysteries of the order and instructs in its religious tenets. Such of these disciples as intend to become religious teachers renounce their connection with the family and all claims to the family wealth and as it were, affiliate themselves to the spiritual teacher whose school they have entered. Pious persons endow the school with property which is vested in the preceptor for the time being and a home for the schoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers--which offerings as a rule are very considerable--is at the disposal of the head of the mutt for the time being, which he is expected to spend, at his will and pleasure, on objects of religious charity and in the encouragement and promotion of ?religious learning. His obligation to devote the surplus income to such religious and charitable objects is one in the nature only of an imperfect or moral obligation resting in his conscience and regulated only by the force of public opinion and he is in no way, whether as a. trustee or otherwise, accountable for it in law. A corporation, however, like any natural person can act as a trustee (Lewin on Trusts, 10th Edition, p. 30); Kent's Commentaries, Vol. 2, p. 280) and it is not uncommon that a mahunt or head of a mutt, as a corporation sole, is appointed as a trustee, manager or superintendent of important temples, devastanams and katalais and in that capacity, he is accountable and responsible, like any other trustee, manager or superintendent of such religious institutions. In legal contemplation, therefore, the head of a mutt, as such, has an estate for life in its permanent endowments and an absolute property in the income d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny respects they had only the powers of tenants for life. Of course no owner in the fee simple can actually enjoy beyond his life and therefore to that extent, they were no better and no worse off than other owners in fee simple. But it was said that being seized in right of their churches, they had not the ordinary powers of other proprietors in fee simple * * * * * and they were not allowed to use their property in the same way as ordinary owners of land. The Master of the Rolls then points out that ' such restricted ownership and restricted rights' are nothing ' new or remarkable,' and by way of further illustration refers to charity corporations and municipal corporations. The head of the mutt being an ascetic, there are no rights of inheritance between him and his blood-relations and the unexpended portion of the revenues devolves, according to custom, on the succeeding head of the mutt, along with the corpus of the mutt property. In this respect the case of the bishop is different, as the properties belonging to him personally--including his savings from the revenues of the benefice--devolve upon his legal representatives or heirs, as the case may be and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2* quite recently disposed of, being the spiritual office of ' Veda Vrithi' in a village, endowed with a small Inam, the advowson or the right of presentation to the office belonging to the Brahmin community of the village). 28. Far from being foreign to the Hindu Law, the conception of a ' corporation' was worked out not only in respect of religious foundations and establishments and eleemosynary institutions, but also in respect of lay institutions and offices. The King in India was as much a corporation sole as the King in England and many subordinate chiefs of principalities and feudatories which were in the nature of a Raj, were also, by custom, prescription and sometimes even by charter, 'corporation sole' in analogy to the King, though the chiefs themselves were not really invested with sovereign authority. Several ancient zamindaris, both here and in the north,--which were in the nature of a Raj or principality--and the ancient ' stanoms' of Malabar, really fall under this category. In two learned articles in the Law Quarterly Review (Vol. XVI, p. 335 and Vol. XVII, p. 131), Professor Maitland has made an attempt to criticise the ' con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bonus being thrown on the party affirming its impartibility. The incident of inalienability attaching to the corporate character has suffered still more. In the earlier decisions ending with the case of Chintulapati Chinna Simhadri Raj v. The Zumindar of Vizianagaram 2 M.H.C.R. 128 the principle that a Zemindar had only an estate for life was generally recognised and acted upon. In the case last mentioned, Holloway, J., said : The ratio decidendi of all the cases down to the two latest 1 H.C.R. 148 clearly is that the zemindar has really an estate analogous to an estate tail as it originally stood upon the statute D6 Donis. He is the owner, but can neither encumber nor alienate beyond the period of his own life. If he had sold, the sale would be inoperative beyond his life and would amount merely to an alienation of his life interest. It was most unfortunate that the estate of an ancient zemindar in India should have been likened by that eminent* Judge to an estate tail under the English Law, as it stood under the statute De Donis instead of to the estate of a natural person constituting with his predecessors and successors, a corporation sole. The result has been that the theo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on who for the time being was zemindar or poligar, had, as in the case of ecclesiastical corporations, only a life estate in the zamindari with a very restricted power of alienation for necessary purposes, but with absolute beneficial enjoyment of the revenues, subject only to the burden of maintaining or making suitable allowances for the members of the family, the question as to whether poliems and ancient zamindaris were in each case partible or impartible would not have arisen; the anomaly of resting their impartibility on family custom and of applying to zemindars and poligars the law regulating the powers of managing members of undivided Hindu families--powers which supplemented as they have been by the English equitable doctrine laid down in Hanuman Prasad's case are ample and elastic enough to bring about in course of time the disintegration of zamindaris and poliems, no less than of ordinary partible estates; and the decision of Sartaj Kuari's case which was but the logical outcome of basing the impartibility of those estates on the unsound principle of family custom regulating succession by primogeniture would have been averted. The corporate character of these in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r suits to recover possession of Immovable property forming the endowment of a public charitable or religious institution, which has been improperly alienated or held adversely to the institution and lastly, (though not least) by amending the Religious Endowments Act (XX of 1863) so as to better define the constitution of the committees established under it, the powers and duties of committees and trustees and their mutual legal relations and render more effective the control of the judiciary over the administration of religious endowments, without in any degree departing from the fundamental principle of the Act, of severing the connection of the executive authorities with such administration, Reverting now to the subject of religious or ecclesiastical corporations sole, the question to be next considered is the effect of lunacy on the status and rights of a mahunt or head of a mutt. He no doubt becomes incapable of discharging the spiritual as well as the temporal functions of his office, but his lunacy cannot divest him of the life-estate which he has in the properties of the mutt, nor can it divest him of his status as head of the mutt. The only course for the purpose of securi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing and food should be provided for the co-adjutor in such a way that the whole of what is left of the profits (after such provision has been made) should remain to the incapacitated prelate or beneficiary (vide Tit ' Juris Canonici Theoria,' Vol. I, p. 84). In Burn's' Ecclesiastical Law' (Vol. I, p. 306 Tit. ' Co-Adjutor') it is stated : In cases of any habitual distemper of the mind whereby the incumbent is rendered incapable of the administration of his cure, such as frenzy, lunacy and the like, the laws of the church have provided co-adjutors . The procedure in the English law is even, now substantially the same and is regulated by the provisions of 6 7 Victoria, ch. 62 (see also Pope on Lunacy, p. 370). Applying the above principles to the present case, we find that after the 1st defendant was adjudged a lunatic and the 2nd defendant was appointed manager of the mutt, the late disciple of the 1st defendant was during his life-time, carrying on the ceremonies of the mutt and the worship of Gopinath the idol installed in the mutt and of Ramadeva, the personal God of the head of the mutt--he being qualified to perform the puja for both the idols. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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