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TMI Blog1970 (1) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff and defendants 2 and 3, of the temple to which the suit properties belong. The first defendant's right to be in possession of the suit properties as joint trustee is questioned and an injunction restraining the first defendant from collecting rents and profits thereof or otherwise interfering with the properties is prayed for. The suit properties nanja punja and jari monai of an extent of 106 acres and 33 1|2 cents situate in the village of Mappalam in Nannilam Taluk, East Tanjore District--admittedly endowed, belong to Sri Viswalinga Vaitheeswaraswami, a deity of the Hindu) Pantheon, whose temple is located at Jaffna, Ceylon. The temple was founded by one Vaithilinga Chettiar, a remote ancestor of the parties, in or about the year 1790, and it owns extensive properties in Jaffna, besides the suit properties. The founder Vaithilinga died in or about 1828. Under his will dated 20th April, 1805, of which Exhibit A-1 is registration copy, he prescribed a scheme for the due administration and management of the temple and its properties and the charities he founded. Briefly stated the will prescribes the devolution of the right of management (office of Vicharanai Kart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant charged Gopala Chettiar, Ponnuswami Chettiar and Vaithilinga Chettiar who were impleaded as defendants 1, 4 and 5 in that suit, as setting up exclusive title in themselves for possession and management of the suit temple and its endowment in derogation of his right to joint trusteeship with them. He prayed for an injunction restraining them from interfering with his joint possession of the endowed properties, the present suit properties. The learned Subordinate Judge taking the view that it was the intention of the testator that the succession to the office should follow the line of succession to the property of the family, but subject to the qualification that the nearer in degree excluded the more remote, disallowed the plaintiff's claim to trusteeship, on the ground of his grandfather having been adopted away from the family and on the ground that he was lower in descent than the contesting defendants 1 and 5 in that suit. 4. Aggrieved by the decision of the Sub-Court, the plaintiff brought up the matter to this Court in appeal A.S. No. 387 of 1940. It is the decision therein that is reported as Manathunainatha Desikar v. Gopala (1943) 1 M.L.J. 434 : I.L.R. (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision is right or wrong, they are held bound by the decision. As regards the former decision of this Court on the merits upholding the validity of the scheme of succession provided by the founder, the learned Subordinate Judge has taken the view that he was constrained to hold that the present appellant has no legal right to be co-trustee of the suit temple and its properties 'in view of the development of law regarding the construction of office of trusteeship being property'. Holding that the plaintiff and defendants 2 and 3 are the descendants of the founder in the male line entitled to the office of trusteeship, the suit has been decreed as prayed for. 6. The two questions that call for consideration in this appeal are (1) whether the restrictions laid down in Tagore v. Tagore L.R. (1872) IndAp 47 : 9 Beng. L.R. 377 are applicable to the office of trusteeship now under consideration and (2) whether the plaintiff is barred from agitating the question in view of the prior decision on the matter. There has been very little discussion before us about the true construction of the will, and arguments proceeded on the basis that the will lays down a line of succession inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e principle against creation of estates and rules of inheritance unknown to Hindu Law by gifts and wills grounded on public policy was enunciated by their Lordships of the Judicial Committee thus : at page's 64-65: The power of parting with property once acquired, so as to confer the same property upon another, must take effect either by inheritance or transfer, each according to law. Inheritance does not depend upon the will of the individual owner; transfer does. Inheritance is a rule laid down (or in the case of custom recognised)' by the State, not merely for the benefit of individuals, but for reasons of public policy. It follows directly from this that a private individual, who attempts by gift or will to make property inheritable otherwise than the law directs, is assuming to legislate, and that the gift must fail, and the inheritance take place as the law directs. This was well expressed by Lord Justice Turner in Soorjomonee Dossee v. Denobundoo Mullick (1854) 6 M.I.A 555. A man cannot create a new from of estate or alter the line of succession allowed by law, for the purpose of carrying out his own wishes or views of policy. Their Lordships laid dow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot by agreement between its members, make a custom for itself of succession to family property at variance with the ordinary law. But, where a family is found to have been governed as to its property by a customary rule of succession different from that of the ordinary law, that custom is itself law. The rule of succession in such a case is recognised by the State as part of the law of the family, though it is no more than the result of a course of conduct of individual subjects of the State constituting the family. No arguments based on usage or custom were addressed before us and the matter has to be considered without reference to any custom or usage as such. We have, therefore, to examine whether the scheme for administration of the endowment provided by the founder, involves creation of a new form of estate in property, and whether the office of Dharmakartha provided for under the scheme is property. If it is not property by itself, does the scheme provide for devolution with reference to an hereditary office? As the prohibition is against creation of estates and rules of inheritance unknown to Hindu Law, the question whether the office is property has to be considered ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mples, the endowments, whether in the shape of landed property or tasdik allowances, have to be devoted to the carrying out of the specific purposes connected with the temple, i.e., the daily worship and the periodical ceremonies and festival--purposes defined and settled by usage and custom and generally recorded in what is known as the 'dittam'--and the Dharmakarthas are mere trustees for the carrying out or executing of, such trusts. Again, in Ramanathan Chetti v. Murugappa Chettti, the Judicial Committee observed: The manager of the temple is by virtue of his office the administrator of the property attached to it. As regards the property the manager is in the position of a trustee. But as regards the service of the temple and the duties that appertain to it, he is rather in the position of the holder of an office or dignity which may have been originally conferred on a single individual, but which, in course of time, has become vested by descent in more than one person. In that case the temple was a Hindu temple dedicated for public worship, and the office of the manager of the temple was hereditary in the family of the parties. But the family had no benefici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct on the occasion of his visit to the temple. The learned Judge quotes with approval certain observations of Sadasiva Aiyar, J., in Athart Sadagopacharar Swamigal v. Elayavalli Srinivasachariar (1913) M.W.N. 289 which are relevant in this context. The learned Judge says: ...the next question of law is whether such honours to be shown in the presence of God can be legally attached to the office as emoluments. In other words, can honours be legally claimed by anybody as receivable by him in a temple? When a trustee chooses to parade the temple elephants and dancing girls before a high official or any other person and gives him prasadams, etc., he does it in order to show 'honours' to that person and when he does it without prejudice to the conduct of the rituals and ceremonies in the temple, he always says that the God of the temple Himself condescends to treat the official or other persons as God's guest and shows him these 'honours'. Such persons to whom respect is shown cannot in my opinion claim such 'honours' as a legal right, but as a favour shown by the temple deity. Such honours in the strict eye of the Sastras cannot be called honours at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xed periods--Srikrishna : (3) A fixed amount granted by the king or other authority receivable from a mine or similar fund-Kalpataru : (4) So many leaves receivable from a plantation of betel, pepper, or so many nuts from an orchard of areca--Mitakshara Chapter I, Section 6, para. 4 : (5) A fixed pension receivable out of mines or the like and settled on him and his heirs by the King or other benefactor--II Digest, page 258. The learned editor gives the following translation of the word Nibandha : A corrody signifies a permanent allowance received from saleable articles, in virtue of an agreement or promise . In Maharana Futtehsangji Jawat Sangji v. Dessai Kallianraiji Hekoomutraiji referring to the translation of the word Nibandha as corrody in English, the Judicial Committee remarked that they would prefer to use the Sanskrit word, inasmuch as they do not think that ' corrody is a very happy translation of it, corrody being a word of medieval origin properly signifying a peculiar right, viz., the grant by the royal or other founder of an abbey of certain allowances out of the revenues- of the abbey in favour of a dependent or servant. Illustrations of its use under the Hin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... test between the parties; since it can hardly have been held that, because the hereditary office was, in contemplation of the Hindu Law, of the nature of Immovable property, fees recoverable by the admitted holder of the office from persons whose horoscope he might have cast, fell within the same category....It fully upheld the decision in Krishnabhat v. Kapabhat (1869) 6 Bom.H.C.R. 137 and affirmed the correctness of the rule there laid down....The rule is shortly this, viz., that inasmuch as the term immovable property is not defined by the Act (Limitation Act of 1859), it must, when the question concerns the right of Hindus, be taken to include whatever the Hindu Law classes as immovable, although not such in the ordinary acceptation of the word. To the application of this rule within proper limits, their Lordships see no objection. The question must, in every case, be whether the subject of the suit is in the nature of Immovable property, or of an interest in Immovable property; and if its nature and quality can be only determined by Hindu Law and usage, the Hindu Law may properly be included for that purpose. Thus, in the two cases on which the appellant relies, Hindu texts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opposed to his personal rights. The former constitute his estate or property, while the latter constitute his status or personal condition. In this sense a man's land, chattels, shares, and the debts due to him are his property; but not his life or liberty or reputation. Bentham in his Theory of Legislation, Vol. I, at page 143, puts it thus: Property is nothing more than the basis of a certain expectation; namely, the expectation of deriving hereafter certain advantage from a thing (which we already said to possess) by reason of the relation in which we stand towards it. If we regard the Dharmakartha purely as in the position of manager of the estate of an infant heir, we may aptly refer to the following definition of Black-stone with reference to property : The inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior. We have not heard it said that guardianship is property. 11. In Umayal Achi v. Lakshmi Achi, Varadachariar, J., held that the Hindu Women's Right to Property Act was intended to apply only to property beneficially owned by the propositus and not to anything ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ayyar, J., sitting with Rajamannar, C.J., held in Narayanan Nambudripad v. The State of Madras (1953) 2 M.L J. 699 : I.L.R. (1955) Mad. 386, that hereditary trusteeship is within the protection afforded by Article 19 (1) (f) of the Constitution, even though the trustee has no right to participate in the income from the endowment or its emoluments. It was said: The nature and. incidents of the office of hereditary trusteeship are well-settled by authority, if descends like partible property on the heirs of the trustees. Even females will be entitled to the office if they happen to succeed as heirs, vide Annayya Tantri v. Ammakka (1918) 35 MLJ 196 . When emoluments are attached to that office they are divisible among the co-heirs. When there are no emoluments even then the joint rights of the co-heirs can be exercised by all of them under an arrangement providing for management by turns. In Manohar v. Bhupendra I.L.R.(1933) Cal 452, a Full Bench of the Calcutta High Court held that the rule in the Tagore case (1872) L.R. I.A 47 : 9 Beng. 9 L.R. 377 was applicable to devolution of the office of hereditary trustees; and that was approved by the Privy Council in Ganesh Chunder v. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishna Iyer, J., in Sankaran Nair v. Govindan Nambiar (1955) 1 M.L.J. 243. Therefore irrespective of the question of any beneficial interest in or emoluments attached to the office, a trustee or manager of a temple or endowment who obtains the right to the office by hereditary right would be entitled to it as his property. Though the hereditary trusteeship in the case was held to be property, the petitioner could not get any relief on that basis, as on facts there was no intrusion of the rights of the trustee after the coming into force of the Constitution to apply Article 19 (1) (f) The case went up to the Supreme Court and is reported in S. D. G. Pandarasannadhi v. State of Madras (1965) 2 S C.J. 711 : (1965) 2 An.W.R. 67 : (1965) 2 M.L.J 167 . But the question was not the subject of arguments before the Supreme Court and the Supreme Court had no occasion to examine the position. 14. In Shri Govind Lalji v. State of Rajasthan (1964)2 S.C.J. 715 : A.I.R 1963 S.C. the Supreme Court had to consider, with reference to Srinathji temple at Nathdwara, the claims of Tilkayats in the temple under Articles 19 (1) (f) and 31 (2) of the Constitution. The position of the Tilkayat for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous institution, that a Madathipathi of a Mutt is not a mere manager, and that it would not be right to describe Mahantship as a mere office, for a superior of a Mutt has not only duties to discharge in connection with the endowment but he has a personal interest of a beneficial character which is sanctioned by custom and is much larger than that of a shebait in debutter property. The Supreme Court proceeded to point out that in the conception of Mahantship as in shebaitship, both the elements of office and property, of duties and personal interest are blended together and neither can be detached from the other. The Dharmakartha of a temple who has no emoluments attached to his office but only duties to discharge, has like the Tilkayats, no personal interest of a beneficial character in the institution. It is said that the position of a hereditary Dharmakartha of a South Indian temple can be considered to be somewhat higher than that of a Tilkayat, or a manager of an educational institution. The Tilkayat is under the absolute control of the Durbar. But the duties of a Dharmakartha are prescribed, and in office he does not function under the absolute discretion of another authority. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances to show a different mode of devolution. In Mohan Lalji v. Gordhan Lalji Maharap I.L.R.(1913) All. 283 this principle was again affirmed emphasising that the rule must, from the very nature of the right, be subject to the condition that the devolution in the ordinary line of descent is not inconsistent with or opposed to the purpose the founder had in view in establishing the worship. Summing up the position, the Judicial Committee in Janoki Debi v. Gopal Acharjia Goswami I.L.R.(1883) Cal. 766 : L.R. 10 IndAp 32 observed: It appears to follow from the judgments of their Lordships in Greedharee Doss v. Nundokissore Doss Mohant (1866) 11 M.I.A. 405 . Rajah Muttu Ramalinga Setupati v. Perianayagam Pillai (1873) L.R. 1 IndAp 209 and Rajah Vurmah Valia v. Ravi Vutmah Kunhikutty I.L.R.(1876) Mad. 235 : 1876 L.R. 4 I.A 76 that when, owing to the absence of documentary or other direct evidence, it does not appear what rule of succession has been laid down by the endower of a religious institution, it must be proved by evidence what is the usage. Mukerjee, J. (as he then was) in Angurbala v. Debabrata [1951] 2 SCR 1125 delivering the judgment of the Supreme Court referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emple (Raja Vurma Valia v. Ravi Vurma Kunhikutty I.L.R.(1876) Mad. 235 : 4 I.A. 76, Pandaram of Rameswaram temple Rajah Muttu Ramalinga Setupathi v. Perianayagam Pillai L.R (1873) 1 IndAp 209, Shebait of an idol Janoki Debt v. Gopal Acharjia Goswami I.L R. (1883) Cal. 766 : L.R. 10 IndAp 32 and by the High Courts to Tambiran of a Mutt Giyana Sambandha Pandara Sannadhi v. Kandaswami Thambiran I.L R. (1887) Mad. 375 the headman of a synagogue Advocate General of Bombay v. D. Hamdevakar I.L.R. (1887) 11 Bom. 185 and sujjadanashin of a mosque S.G. Rahumtulla Sahib v. Akbar Sahib (1874) 8 M.H.C.R. 63. 18. In Greedharee Doss's case (1866) 11 M.I.A. 405 in the judgment of the High Court which was. affirmed by the Judicial Committee, Sir Barnes Peacock, C.J., while negativing the right of a Mahant who once nominated his successor to give directions to his successor when the latter's turn to nominate comes, as to whom he should nominate, observed: We think that a Mohunt has no power to give such a direction. Numerous cases have been cited to show what is the usage; but the law to be laid down by this Court must be as to what is the usage of each Mohuntee. We apprehend that if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvations of Sir Barnes Peacock, C.J. in the High Court in Greedharee Doss's case (1866) 11 M.I.A. 405 extracted above enunciating the right of a founder of a college or a religious institution to lay down the rule of succession. They also referred to their enunciation of the same principle in Rajah Muttu Ramalinga Sethupati's case (1873) L.R.1 IndAp 209 in the following terms: But the constitution and rules of religious brother-hoods attached to Hindu temples are by no means uniform in their character, and the important principles to be observed by the Courts is to ascertain, if that be possible, the special laws and usages governing the particular community whose affairs become the subject of litigation, and to be guided by them. That principle was laid down by the Committee in an appeal involving the succession to the office of Mohunt of a richly endowed mutt in Rajgunge in these terms....(Greedharee Doss's case) (1866) 11 M.I.A. 405 . In Rajah Vurmah Vali's case (1876)I.L.R 1 Mad. 235 (P.C.) : 4 I.A. 76 just now referred to, the Judicial Committee having regard to the usage of the institution, would infer that the founder prescribed a method of devolut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty has been parted with. In creating the office of manager or Dharmakartha and providing for continued representation in the office, can it be said that the founder is parting with any property acquired so that it must necessarily devolve by inheritance ? We find it difficult to regard the exercise of the power as dealing with property in the context of our discussion. It may result in the creation of something in the nature of property for some purposes and here we are only on the exercise of the power. 20. As pointed out earlier, Tagore v. Tagore (1872) L.R. IndAp 47 : 9 Beng. L.R. 377 endorses resort to general principles affecting transfer of property which must prevail wherever law exists, while-laying aside rules of detail prevailing in England. In Halsbury's Laws of England, Vol. 4, Simonds Edition, page 396, we find the position thus stated with reference to Charitable Corporations in England: A charitable corporation, in so far as it is charitable, is the creature of the founder . The founder may accordingly provide for the Government and administration of his 'creature' and the application in perpetuity of the revenues. Moreover, he and his appointe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of those who erect them. Therefore, if there be no visitor appointed, in all such cases of eleemosynary corporation, the law doth appoint the founder and his heirs to be visitors, They are patrons and not to be guided by the common known laws and rules of the Kingdom; but such corporations are as to their own affairs to be governed by the particular laws and constitutions assigned by the founder....Patronage and visitation are necessary consequence one upon another; for this visitatorial power was not introduced by any canons or constitutions ecclesiastical, it is an appointment of the law, it ariseth from the property which the founder had in the lands assigned to support the charity; And as he is the author of the charity, the law gives him and his heirs a visitatorial power, i.e., an authority to inspect their actions, and regulate their behaviour as he pleaseth. It follows that, when a founder on making dedication of his property provides for the management of the property by persons in succession in a manner which according to him is; best fitted and proper in the interests of the foundation, he makes no transfer or gift of property, but creates an office of perpetual oblig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udges referred to the distinction between the position of a dharmakartha and that of shebait, indicated by the Judicial Committee in Srinivasachariar v. Evalappa Mudaliar and held that it is impossible to regard shebaitship as anything else than property within the meaning of Hindu Law. Examining at length the case law relating to the nature of shebaitship, it is pointed out that shebaitship is not a bare office but an office together with certain rights attached to it, an office made up of the dose intermingling of duties and personal interest, and a shebait's position towards debuttar's property is not similar to that of a trustee towards trust property in England. The very question which the learned Judges constituting the Full Bench addressed to themselves, suggests that, if shebaitship is not property but merely an office, the rule in Tagore v. Tagore L.R. (1872) IndAp 47 : 9 Beng. L.R. 377 against creating a line of inheritance different from the rules of Hindu Law will not apply. They posed as the main question : whether shebaitship in Hindu Law is property of any kind, to which Tagore v. Tagore L.R. (1872) IndAp 47 : 9 Beng. L.R. 377 may apply, or is merely an offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debuttar's as they are all clearly distinguishable. 26. We shall now examine the decision of the Judicial Committee in Gnanasambania Pandara Sannathi's Case I.L.R. (1900) Mad. 271 : 1900 10 M.L.J. 29 and see what principle their Lordships have laid down therein. In that case the religious foundation was a Kattalai attached to a temple in Thirukkadaiyur. The endowment was founded by a remote ancestor of the plaintiff Velu Pandaram, and Chockalinga, the 2nd defendant in the suit which went up in appeal to the Judicial Committee. There was no instrument of endowment or dedication and the suit was brought by Velu Pandaram as hereditary trustee of the endowment to establish his right to management of the endowment and for possession of the lands forming the endowment either solely or jointly with the 2nd defendant. The ancestors of the plaintiff and the 2nd defendant had been hereditary trustees of the endowment jointly entitled to management. When the plaintiff's paternal grandfather Velu Pandaram and his divided family member Kuppa Pandaram, the father of the 2nd defendant, were in management, Kuppa Pandaram died in 1866, leaving his widow and minor son the 2nd defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation commenced when the defendant took possession of the office adversely to the plaintiff. The Explanation to column 3 amplified, not only what is meant by possession of hereditary office but also the hereditary offices intended to be governed by the; Article. The Explanation states that an hereditary office is possessed when the profits thereof are usually received, or if there are no profits when the duties thereof are usually performed. The Explanation makes it clear that Article 124 applies not only to a case where the hereditary office carries with it profits, that is, perquisites or emoluments, but also to a case where without profits being attached duties are performed. The office of hereditary Dharmakartha would be governed by the Article. The attempt before the Judicial Committee in Gnanasambctnda Pandora Sannadhi's case I.L.R.(1900) Mad. 271 : 10 M.L.J. 29 was to get over the bar of limitation by contending that the office was held in a succession of life estates and advance the cause of action. The claim appears to have been that each person who succeeded to the office in hereditary right, had a fresh start regardless of anything his predecessor had done or suffer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... created by gift or will so far as they are inconsistent with the general law of inheritance are void as such and that by Hindu Law no person can succeed thereunder as heir to estates described in the terms which in English law would designate estates tail. The Hindu Law of inheritance did not permit the creation of successive life estates in this endowment and this ruling is decisive against the contention on behalf of Velu and is contrary to the judgment in the Bombay case. Ex facie on the facts, respondent Velu Pandaram could be entitled only as heir to his father Nataraja. The succession was statedly hereditary. Hereditary succession is succession by the heir to the deceased under the law, according to the rules of inheritance the law laid down. Nataraja's right to the office was barred by Article 124, and, as the endowment went with it, the right to the possession of the endowed property was also barred. In the context their Lordships gave their opinion that the ruling in Tagore Case (1872) L.R. IndAp 47 : 9 Beng. L.R. 377 is applicable to an hereditary office and endowment as well as to other Immovable property. They said: The respondent Velu can only be entitled a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply. It is unnecessary for us to examine cases where perquisites or emoluments are attached to the office of Dharmakartha. If the Full Bench decision of the Calcutta High Court in Manohar Mukherji's case I.L.R.(1933) Cal. 452 should be interpreted as laying down that even an office without perquisites can descend only according to Hindu Law of inheritance and has always and necessarily to be an hereditary office, with great respect to the learned Judges we have to differ. It looks as if the learned Judges carried an impression that in Gnanasambanda Pandara Sannadhi's case I.L.R.(1900) Mad. 271 : 10 M.L.J. 29 the office contained some emoluments, for they only observe that 'it does not appear that there were any emoluments expressly attaching to the office of the manager'. In the case of a shebait even where no emoluments are expressly attached to the office, he enjoys some sort of right or interest in the endowed property, generally right of residence, which partially at least has the character of property right--Angurbala's case [1951] 2 SCR 1125 in Gnanasambanda Pandara Sannadhhi's case I.L.R.(1900) Mad. 271 : 10 M.L.J. 29 the statement of facts in the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution to lay down rules of succession for the trusteeship. The scheme in that case provided for the management of a temple being vested in the senior most members for the time being in four distinct families. Such a scheme involves the negation of the rule against gifts to unborn persons. If the founder could provide for election or selection to the office by nomination of the successor by the incumbent for the time being--the validity of such a scheme was assumed by Counsel before the Committee--that grants the validity of the gift of the office to unborn persons. To adopt that reasoning of Rankin, C.J., in his referring order in Manohar Mukherji's case I.L.R. (1933) Cal 452 if there is no necessity for the trustee to come to be in existence when the scheme is settled, then any after born can take as persona designata. If there could be selection, no bar can be seen for selection among heirs excluding some and including others; that is what happens when the senior most member is designated. And if selection could be made from among outsiders, there is no logic or reasoning for prohibiting selection from among descendants by providing that at any given time persons related i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On the other hand, it is quite settled that a shebaiti right is a hereditary office and as such comes within the express language of Article 124 of the Limitation Act....The intention of the Legislature is obviously to treat hereditary office like land for the purposes of barring suits for possession of such office and extinguishing the right to the possession thereof after a certain period.... (After referring to Gnanasambanda Pandara Sannadhi's case I.L.R.(1900) Mad. 271 : 10 M.L.J. 29 Article 124 relates to a hereditary office and this means that the office goes from one person to another solely by the reason of the latter being a heir to the former...to defeat the title of the plaintiff under Article 124 it is necessary to establish that the defendant had taken possession of the office adversely to the plaintiff or somebody from or through whom the plaintiff derives his title, more than 12 years prior to the institution of the suit. This is exactly what is laid down in Gnanasambanda v. Velu I.L.R.(1900) Mad. 271 : 10 M.L.J. 29. In Smnayan Chetty v. Sinnappan Sevai (1910) 20 MLJ 654 where a partition deed with reference to the devolution of trusteeship of a temple prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial Committee quotes with approval the following passage in Mahomed v. Ganapathi I.L.R.(1890) Mad. 277 from the judgment of Shepperd, J., with whom Muthuswami Ayyar, J. concurred. In the present case, though the plaintiff may in point of time have succeeded the Dharmakartha who made the alienation, he does not derive his title from that Dharmakartha and is, therefore not bound by his acts. Subject to the law of limitation, the successive holders of an office, enjoying for life the property attached to it, are at liberty to question the dispositions made by their predecessors. We hold, therefore, that the restriction laid down in Tagore v. Tagore (1872) L.R. IndAp 47 : 9 Beng. L.R. 377 does not apply to the office of Dharmakartha under consideration. The first defendant has valid title to the office along with the other male descendants of the founder, plaintiff and defendants 2 and 3. The successor to the office does not take the office solely in his rights as heir to his predecessor but pro formam doni as direct nominee under the rules of succession laid down by the founder. We are in entire agreement with the following observations of Krishnaswami Ayyangar, J., in K. Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion the decision whereon rests with the Court on the interpretation of the will of the founder so the decision, even if erroneous in law, would be binding on the parties. One requirement for the rule to operate is apparently wanting; the present plaintiff was not eo nomine a party on record in the former suit, when the decision was given. Mr. M. 3. Venkatarama Aiyar, learned Counsel for the appellant, contends for the applicability of the rule on the ground that the plaintiff is a privy of a party to the former suit and alternatively, a person whose interest was represented by parties on record in the prior suit. It is submitted that the office of trusteeship, the subject-matter in dispute was fully represented by the parties on record in the former suit, to preclude successors to the office from re-agitating a matter that was squarely in issue in the former suit and fairly fought out and determined. Mr. R. Ramamurthi Aiyar, learned Counsel for the plaintiff-first respondent, submits that the plaintiff does not claim under parties to the prior litigation, and that the parties actually on record in the suit were not impleaded in a representative capacity so as to bind all the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same title. Explanation VI to Section 11 provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purpose of this section, he deemed to claim under the persons so litigating. The raison d'etre of the rule of res Judicata is to give finality to decisions arrived at by competent courts between interested parties after genuine contest. Res judicata binds parties and also privies. persons who claim under parties on record. A person not actually claiming under a party to the former suit but who was represented by a party in the former suit in respect of a public right or a private right claimed in common for himself, is by Explanation VI deemed a privy. Suits under Order 1, Rule 8, Civil Procedure Code, are instances of the class of suits termed representative suits where persons not actually on record in the former suit are bound by the decision therein. But they do not exhaust the classes of representative suits. Explanation VI includes any litigation in which, apart from Order 1, Rule 8, parties are entitled to represent interested persons oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t shebaits in honest suits bind the successors. The reason, it is observed in that case, is that shebaits with their predecessors and successors form one continuous representation of the idol and consequently subsequent shebaits are regarded as the same persons in law as their predecessors. In Veerabhadra Varaprasada Rao v. Vellanki Venkatadri (1900) 10 MLJ 114 it was held that in a suit for the income of a hereditary office a preceding office holder fully represents his successors in the matter of res judicata and limitation. In Mt. Moti Bala Debi v. Satyanand AIR 1930 All 348 it was held that, with regard to endowed property, the successor in management of the endowed property may be considered as a legal representative of the prior manager of the same endowed property. The Judicial Committee observed in Propsunno Kumari Debya v. Golab Chand Baboo (1874) L.R. 52 IndAp 145 that it appears to be right and reasonable that judgments obtained against a former shebait in respect of debts so incurred should be binding upon succeeding shebaits, who, in fact, form a continuing representation of the idol's property. 37. Indubitably the defendants in the former suit asserted exclusiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the original defendants included all the persons who claimed to be trustees in the male line and were legally interested in opposing the claim. 39. A legal representative is defined in Section 2 (11), Civil Procedure Code, as meaning a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. The estate involved in the case is the office of trusteeship, and, according to the plaintiff, the then 5th defendant's interest in the office devolved on him and his two brothers. Their Claim to the trusteeship is as heirs to their father, from and through him. Their father succeeded in the trial Court on that basis and pending the appeal died. The contention for the plaintiff is that the failure to implead him also as legal representatives makes the decision in the case ineffective against him. The real question is, was the estate of the deceased properly and sufficiently represented on his death, to bind the successors to his estate. The representation of the es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debt out of the husband's estate, and satisfied his claim by sale of certain items of the estate in her hands. A nephew of the deceased who was the residuary legatee under the will sued to set aside the decree and sale in execution there of. In the circumstances, the learned Judge observed: Prima facie a decree will bind only the parties to it or those claiming through them, but there are exceptions to this rule. The Courts have held that in certain circumstances when one who is not the true legal representative of a deceased person is impleaded as his legal representative, then a decree passed; against him in his character as the legal representative of the deceased would be binding on the true representative though he is not a party to it. The suit may have been instituted against the wrong legal representative at the very commencement or the wrong legal representative may have been brought on record during the pendency of the suit or after the decree and for purposes of execution. It was held in that case by this Court that, as the creditor bona fide believed that the widow was the proper legal representative and got his decree without any fraud or collusion with her, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged lack of bona fides in not impleading the present plaintiff as a legal representative. The 5th defendant died in October, 1940 leaving surviving his widow and two minor defendants 2 and 3. The plaintiff, the posthumous son, was born on 5th December, 1940. The application C.M.P. No. 7089 of 1940 to bring on record the present defendants represented by their maternal uncle as guardian ad litem as legal representatives was ordered on 21st January, 1941. It is the 1st defendant's case that the present plaintiff was not even born at the time the application was filed. It must be so having regard to the date of his birth and the date on which the application was ordered. On the application or even afterwards, no representation was made to Court that another son had been born posthumously and he must be made a party to the appeal. All the persons whom the plaintiff in the former suit believed as persons interested in the office of Dharmakartha had been impleaded. Learned Counsel for the plaintiff before us frankly stated that the bona fide nature of the former contest is not questioned. No want of diligence or lack of bona fide enquiry is attributed to the plaintiff in the former s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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