The Judgment of the Court was delivered by
Wallis, C.J:— These are appeals in suits originally numbered Original Suits Nos. 1 and 2 of 1905 in the District Court of Madura brought with the consent of the Advocate-General under Section 539 of the CPC, by different plaintiffs. In Original Suit No. 1, the subject of Appeal No. 317, it was sought to have it declared that there was no lawful trustee of the Tiruvannamalai Mutt and of the dependent Devasthananams or temples, while in the second, the subject of Appeal No. 318, the declaration was only sought in respect of the Devasthanams or temples. The reason for filing the two suits was that it was considered doubtful whether the holder of the religious office of Pandarasannadhi of the mutt was a trustee within the meaning of Section 539 of the CPC. The case set up in the plaint was that after the death in May 1893 of Arumugam, a former Pandarasannadhi, one Tandavaraya took wrongful possession of the mutt under a will which the Sub-Registrar and the District Registrer subsequently refused to register on the ground of forgery, and that shortly after defendant 1 was appointed as his successor “oat of fraudulent and sinister motive” and that the appointment was void. Issue 1 settled in both suits was
“whether defendant 1 (the de facto incumbent of the office) is a mere trustee of the mutt and has not got an state for life in the Adhinam properties?”
2. On 14th March 1906 the District Judge dissmissed both suits holding, on the authority of Vidyapurna Thirtha Swami v. Vidyanidhi Thirtha Swami(1) that the Pandarasannadhi was not a mere trustee, and that no suit lay for his removal under S. 539, either as regards the mutt or the trusteeship of the Devasthanams which in his opinion went with it. When the case came before Munro and Abdur Bahim, JJ., on appeal they held that in any case there was no reason why the properties belonging to the Devasthanams which defendant 1 admittedly held in trust should not be protected if it were proved that the defendant had been guilty of waste and mismanagement as alleged or why, if a proper case was made out, the Court should not make the necessary provision for a proper administration of the trust. They accordingly allowed Appeal No. 90 of 1906 in Original Suit No. 2 of 1905, and adjourned the other Appeal, No. 91 of 1906 in Original Suit No. 1 of 1905, pending the answer to a reference which they made to the Full Bench nearly in the terms of the issue 1:
“Does the head of a Mutt hold the properties constituting its endowment as a life-tenant or as a trustee?”
3. The Full Bench answered that he was not a trustee except in so far as it might be shown that he held any particular properties on trust. At the same time they refused to regard him as a life-tenant. When the case went back to Munro and Abdur Bahim, JJ., they stated that the reply was that in the absence of evidence to the contrary the head of a Mutt is not a trustee. They accordingly reversed the decree of the District Court in this suit also, and remanded it for disposal according to law.
4. The two cases after remand were transferred to the file of the Temporary Subordinate Judge of Ramnad and numbered in that Court as 17 and 18 of 1912, and they were tried together with a third Suit No. 19 of 1912, brought by one Ponnambalam for a declaration that he had been duly elected to the vacant office of head of the Mutt by the Thambirans or disciples. This suit was dismissed and the dismissal has become final as no appeal has been filed. As regards the Original Suit No. 1 of 1905 the Subordinate Judge found that there was no evidence to the contrary to show that the Pandarasannadhi was a trustee, and he accordingly held that the suit was liable to dismissal on the ground. No attempt has been made to question his finding on the evidence, but it is contended that the decision of the Full Bench is opposed to the recent decision of the Privy Council in Ram Purkash Das v. Anand Das(2). This is strongly contested on the other side, but we do not propose to go into this question, as we consider that the point has already been decided in this suit by a Bench of this Court in the former appeal, and that the proper way of questioning it is by appeal from that decision. Issue 3 in both suits was:
The plaintiffs suing defendant 1 as a trespasser, is the suit maintainable under Section 539 of the CPC.
5. We agree, therefore, with the Subordinate Judge that as regards Original Suit No. 1 of 1905 (No. 17 of 1912) this must be answered in the negative and the suit must be dismissed in so far as it relates to the office of Pandarasannadhi and its endowment.
6. As regards the second suit Original Suit No. 2 of 1905, now 18 of 1912, the defendant's pleader did not press this issue at the trial and it was accordingly found for the plaintiffs, and the suit was held to be maintainable under S. 539 as relating only to the Devasthanam properties. It still involves the question whether defendant 1 is the lawful Pandarasannadhi as, if he is not, the has no right to the trusteeship of the Devasthanams, and those interested in these charities have a right to sue to have proper provision made for the trust. The Subordinate Judge has accordingly gone into the question of the validity of defendant's appointment and has found that it is not open to objection and we have now to deal with that finding on appeal.
7. It is unnecessary to summarise the numerous descriptions of this office which are to be found in the decisions of this Court. The evidence shows that, as in the case of other similar Mutts, the Pandarasannadhi for the time being nominates one of the disciples who have received initiation as sanyasis or ascetics to succeed him on his death and confers upon him abishegam, a sort of ordination, which, as appears from the evidence in this and other cases, is regarded as having the effect of deification and also empowers him to initiate disciples as sanyasis. During the lifetime of the Pandarasannadhi his successor in this Mutt is said to fill the office of Chinnapattam. When the nomination is made at the point of death, it is not unfrequently made by will as well as by conferring abishegam when possible, the will being intended to evidence the exercise of the power of appointment.
8. In the plaint as already stated the plaintiffs attacked defenant 1's appointment on the ground that Tandavaraya under whom he now claims was not himself the lawful Pandarasannadhi and also on account of the circumstances under which defendant 1's appointment was made.
9. The last question though distinctly raised in the pleadings was not, to say the least, very clearly taken in the issue in this two suits, but it was the subject of the fourth issue in the third suit which was tried with them:—Whether the appointment of defendant 1 to the Chinnapattam by the late Pandarsannadhi “was made mala fide to serve his own purpose, and, therefore, invalid”. It is, I think, clear that the parties in these two suits also went to trial on this issue, and that we are bound to deal with it. At the hearing in the lower Court it was admitted that Tandavaraya was the lawful head of the Mutt and the case must be dealt with on that basis. It is still, however, necessary to refer to the circumstances under which he was appointed in so far as they effect the nomination of defendant 1 as his successor. As already stated Arumugam the former head died suddenly in May 1893, six months after he had been acquitted on a charge of murder.
10. In the proceedings taken for the registration of his alleged will evidence was given that he regarded Tandavaraya one of the Tambirans or disciples of the Mutt as responsible for his prosecution. On his death this Tandavaraya entered on the office under an alleged appointment by the deceased both by will and abishegam shortly before his death. It appears that some suspicion of foul play was entertained and that an investigation was held by the Sub. Magistrate, as one of the reasons given by the District Registrar in Ex. D for refusing to register the will was that no mention was made of it by Tandavaraya during this inquiry. The result of the inquiry would appear to have been that there was no ground for taking action against any one. Defendant 1 was away at the time, and when he returned to the District he did not return to the Mutt but went to live under the protection of the zamindar of Sivaganga who also refused to recognise Tandavaraya and joined with him in opposing the registration of the will put forward by Tandavaraya. On 11th June 1893 defendant 1 presented a petition Ex. M to the District Court and another Ex. U to the District Registrar, and two days later he published notices in the District Gazette and the Madura Mail and circulated a notice to the public Exs. H., H-1 and H-2 in which he claimed that he had been appointed to the Chinnapattam by the late Pandarasannadhi and was entitled to succeed and that the will put forward by Tandavaraya was a forgery.
11. In the petition to the District Judge he also accused Tandavaraya of murdering the deceased. A perusal of the District Registrar's judgment Ex. D delivered after an elaborate investigation in which both sides were represented by prominent practitioners, shows the very serious difficulties which Tandavaraya would have had to face if he had been called upon to substantiate his claims to the succession in a Court of law by proving the execution of the will. It was in these circumstances that certain persons intervened to bring about a compromise between 30th April 1894 the date of the judgment and 2nd July 1894 when Ex. L was executed. The evidence shows that the compromise was mainly brought about by three parsons whose respectability has not been questioned. Defendant 1 was first induced to leave the entourage of the Sivaganga Zamindar and go to Madura and after the terms had been settled he returned to the Mutt where Tandavaraya and he executed Ex. L. The document recites that Tandavaraya had duly succeeded and was in possession, that defendant 1 had been asserting that he himself had been appointed, and that for the past year they had both been litigating about this and incurring much expense and putting the institution to much inconvenience, and that in the interests of the institution they had both settled the matter amicably on the terms that Tandavaraya was to be the Pandarasannadhi with all the rights of the office and that defendant 1 was to be the Chinnapattam or junior head and heir to Tandavaraya, and that during Tandavaraya's lifetime defendant 1 was to enjoy certain specified properties belonging to the Mutt, without interference, and that during his lifetime Tandavaraya was not to appoint any one as heir to the Chinnapattam (sic).
12. Assuming what was conceded by the appellants in the lower Court for the purposes of the case that Tandavaraya had been duly appointed, but assuming nothing more we have to deal with two questions: Was this a good exercise by the holder of a public religious office of the power vested in him by the usage of the institution to appoint a successor during his lifetime? and secondly, is it now not open to question as having been one of the conditions of a bona fide settlement of doubtful claims effected in the best interest of the institution? It will be convenient to deal with the latter question first, as it is contended that if the answer is in the affirmative it is conclusive.
13. In matters likes this, it is important to look at the substance rather than the form, and the first question is whether this was really a compromise of doubtful claims, or an exercise by Tandavaraya of his power of appointment in defendant 1's favour with a view of escaping the very serious difficulties with which he would be confronted if called upon to prove his own appointment in a Court of law at the instance of defendant 1. That defendant 1's counter-claim by virtue of a prior appointment was of a most unsubstantial character appears from his cross examination on which the Subordinate Judge has commented and may be gathered from his written statement Ex. E1 in a subsequent suit in which he executed his conduct in contesting the will of the late Pandarasannadhi as due to bad advice, ill-feeling, and imperfect knowledge of the facts, and tacitly admitted that his own claim to the office under a prior appointment was without foundation. This claim of itself would never have caused Tandavaraya any uneasiness or afforded a ground for compromise, and on the most favourable view its abandonment formed a very small part of the consideration for the compromise. The substance of that compromise was that defendant 1 was to obtain from putting Tandavaraya to the proof of his own appointment as Pandarasannadhi in consideration of being appointed his successor with immediate enjoyment of part of the Mutt properties.
14. In consideration of a private advantage defendant 1 was to resist from challenging as he had been doing till then Tandavaraya's claim to have been duly appointed to a public office of a religous character. Defendant 1 having practically no claim at all to this office and Tandavaraya having a claim which it is dear he would have had great difficulty in proving, they agreed to compromise their differences by dividing the enjoyment of the office on the terms the Tandavaraya was to hold it for life and defendants after him. It was in fact not a bona fide settlement of doubtful claims at all, but an arrangement of a very different character by which Tandavaraya agreed to exercise a power of oppointment incident to the office which he claimed for the purpose of obtaining an advantage for himself. In Giaijanund Datta Jha v. Sailagjanund Datta Jha(3) which is a case of the compromise of rival claims to succeed to a religious office the sole consideration on either side was the abandonment of a bona fide claim on the other side and it is necessary to consider it further. Much time has been spent on both sides in taking us through a great number of English and Irish cases to show what will and what will not be upheld as the valid exercise of a power, but it is unnecessary to go into them. I find as a fact for the reasons already given that the appointment of defendant 1 was made by Tandavaraya not a bona fide settlement of rival claims, but in furtherance of his own interests; and that on that ground it was a bad appointment as held by their Lordships of the Judicial Committee in Ramalingam Pillai v. Vythilingam Pillai(4). In these circumstances I think it unnecessary to discuss the question how far such compromises can be supported.
15. It is said and truly that this arrangement did not prevent other people from questioning Tandavaraya's right to the office and that the zamindar of Sivaganga filed Original Suit No. 53 of 1895 in the Subordinate Judge's Court of Madura East contesting the validity of the appointment and claiming the right to appoint as on a vacancy, Ex. E. The fact that Tandavaraya did not obtain complete security under this arrangement does not make it any the less objectionable. As a matter of fact the zamindar did not prosecute the suit possibly, because his right to do so was questioned: Ex. 32. There were not the same objections to a suit by the present defendant 1 as one of the Thambirans of the Mutt, and it was no doubt realized that it was of the first importance to buy off his opposition. Once this was done, opposition soon died down and Tandavaraya enjoyed the office for the rest of his days.
16. If this be the true nature of the transaction, it was of a highly objectionable character and the Court cannot countenance it even at this distance of time on the ground that it was considered to be for the benefit of the institution in the sense that it put an end to disputes between the rival Thambirans. It has also been contended that the compromise should be supported as a family settlement; as to this I cannot but think that agreements as to filling up a religious office of importance in the eyes of Hindu worshippers raise very different consideration and that the decisions as to family settlements are inapplicable. The question of limitation was not argued in the lower Court, but has been raised before us, and it has been contended that the suit is barred under Article 120, Lim. Act. The position of the Chinnapattam is analogous to that of an ordinary reversioner with a mere spes successionis dependent on his surviving the Pandarasannadhi who appointed him. Until he succeeds to the office there can be no duty to question his right to succeed and any attempt to do so by a declaratory suit would probably fail. We accordingly modify the decree of the Temporary Subordinate Judge by declaring that defendant 1 is not the lawful trustee of the Devasthanams and the endowments and removing him from their management, and by directing the Temporary Subordinate Judge to appoint fresh trustee of the Devasthanams, and by directing that the trustee so appointed be placed in possession. Costs of the plaintiffs in Appeal No. 317 of 1913 will come out of the Devasthanams estate throughout. There will be no order as to costs in Appeal No. 318 of 1913.
Napier, J.:— These are appeals in respect to two suits tried in the Court of the Temporary Subordinate Judge of Ramnad. They were brought by two sets of plaintiffs and with the sanction of the Advocate-General. In Appeal No. 317 of 1913 the plaintiffs ask for a declaration that one Nataraja Thambiran the present holder of the office of Pandarasannadhi of the Thiruvannamalai Adhinam is not lawfully entitled to that office and also not entitled to be the trustee of the Anjukovil Devasthanam and the properties appertaining thereto. They, therefore, pray for his removal from these positions and the appointment of a new trustee for the administration of the trust. In Appeal No. 318 of 1913 the plaintiffs confine the relief which they asked for to a declaration and removal from the position of trustee of the Devasthanam and its properties. The suits were tried together in the Subordinate Judge's Court and a third suit, which is unfortunately not before us, was tried with them and evidence taken in all the three suits—a procedure that has given rise to certain difficulties which will be dealt with later on. The position taken up by the defendant Nataraja Thambiran is stated in para 19 of his written statement and is that one Tandavaraya Desikar who was the lawful Pandarasannadhi of the Mutt nominated him as his successor to the Adhinam with appropriate initiation and ceremonies on 9th July 1894, that the late Pandarasannadhi died on 16th March 1902 and that he himself succeeded to the headship and trusteeship of the Devasthanam. He raises other defences also which can be dealt with later on.
17. The plaintiffs do not deny the nomination and initiation of the defendant as Chinnapattam and successor by the late Pandarasannadhi, but plead that it was bad in law for the following reason, namely, that the appointment was not made with sole view to the benefit which would accrue to the Mutt and to the disciples but with the object of getting rid of an opponent who was at the time both setting up a claim to be the lawful Pandarasannadhi and challenging the truth of the appointment and initiation of Tandavaraya himself. A further contention is raised by the plaintiffs that apart from the intention with which the appointment was made, it is illegal in that no valid appointment can be made by compromise of conflicting claims. The Advocate General who appears for the defendant has contended that as long as the person appointed belonged to the class from whom the Pandarasannadhi is chosen, it is not for the Court to look into the circumstances of his selection. For this extreme proposition, there is no authority and it is clearly negatived by the decision of the Privy Council in Ramalingam Pillai v. Vythilingam Pillai. I am satisfied that it is our duty to examine the surrounding circumstances, not for the purpose of ascertaining the motive influencing the appointment, but to see whether the appointment was made with the object and intention of conferring a benefit on the mutt and the disciples.
18. The admitted facts are as follows:—one Chinna Arumuga Desikar was in the beginning of 1893 Pandarasannadhi of the mutt. He died on 23rd May of that year and Tandavaraya Desikar at once claimed the succession, alleging that he had been initiated by the deceased on the day before his death and that the appointment had been confirmed by a will made on the same date by the deceased. His claim in turn, was at once challenged by Nataraja Thambiran on two grounds, (1) that he had himself been appointed, and (2) that the story of the initiation was false and the will a forgery. Tandavaraya presented the will for registration on 23rd May 1893. The registration was opposed by Nataraja charging that forgery and making a further allegation that Tandavaraya had murdered the late Pandarasannadhi. An exhaustive inquiry was held by the Sub-Registrar who found the will to be a forgery and his decision was confirmed by the District Registrar on 30th April 1894. On 9th July 1894 Tandavaraya nominated Nataraja to the post of Chinnapattam, a position which carried with it the right to succeed to the Pandarasannadhiship, and performed the necessary initiation ceremonies. It is argued by Mr. Krishnaswami Aiyar that the true inference to be drawn from these facts is that Tandavaraya felt himself in a position of grave danger in that the defendant might at any moment apply to the District Registrar for sanction to prosecute him for forgery and that the arrangement was one by which he bought off opposition to his claim, an opposition which had already acquired a very strong position.
19. The Advocate-General has contended that this could not have been the intention because as well as Nataraja, he had strong opponent in the Zamindar of Sivaganga who was, of course, not affected by these arrangements and he could not hope to stifle action by the zamindar and in, fact did not do so, as the zamindar brought a suit against him in the following year challenging his claim to be lawfully appointed. Mr. Krishnaswami Aiyar relies on the terms of the agreement (Ex. E) under which Nataraja was appointed Chinnapattam with unusual and special rights and privileges. Now Ex. E is signed by both parties and it recites that Tandavaraya was duly appointed Pandarasannadhi by Arumuga Desikar, the late Pandarasannadhi, and has taken possession of the office and its dignities. It further recites that Nataraja had gone away to Madura and other places on account of ill-feeling but that he had returned in obedience to the order of the Pandarasannadhi and had been appointed Chinnapattam and received abishegam and now holds that office. It then provides that Tandavaraya is to remain in full possession and enjoyment of the office, and that Nataraja shall, as long as he holds the position of Chinnapattam, be entitled to the possession of the Matam at Kumbakonam and the Mattam at Mylapore attached to the Thiruvannamalai Adhinam and also to receive all the income of the villages mentioned in the schedule without any interference by the said Tandavaraya and that he shall manage the said Mattams and the charities connected therewith. Tandavaraya is to conduct all the Mattams attached to the said Adhinam other than those transferred to Nataraja without any kind of interference by the said Nataraja and lastly Tandavaraya covenants not to appoint any one else to the office of Chinnapattam as he has agreed that Nataraja shall succeed him to the Pandarasannadhiship. Now it must be conceded that this is an unusual arrangement.
20. It is true that Tandavaraya remains Pandarasannadhi, but it is clear on the language of this document that there was an actual division of the temporal rights and possession. The same language is used in the allocation of the properties to each and Tandavaraya reserves no more rights in the alienated properties than Nataraja has in the properties retained, so that it is not merely a case of grant of wide powers of management over certain selected Mutts and properties attached to them. As a matter of fact, Nataraja retired at once to Mylapore and lived there managing the properties, and the Judge has found that he actually allowed some of the Mutt properties to be sold for debts incurred by him. Another somewhat suspicious circumstance is the haste with which this appointment was made. It is, of course, open to the Pandarasannadhi to appoint his successor at any time, but when the appointment is made little more than a year after the Pandarasannadhi succeeds to the office, that circumstance is one to betaken in to consideration when the appointment is challenged to have been made with an improper object.
21. A considerable amount of oral evidence was let in on behalf of the plaintiffs to support their case and several witnesses speak to their own belief and to the rumours current that Tandavaraya was at the time in danger of prosecution. A good deal of it is, in my opinion, inadmissible. But P.W 6 speaks to something definite. He says that Tandavaraya asked him to compromise with Nataraja and stop the prosecution, that he went to Madura for this purpose, met Nataraja and asked him not to prosecute as it was a big matter and the prosecution would be a disgrace to both sides. He says that Nataraja agree to drop the matter if he was appointed Chinnapattam and an agreement was made under which he would be irremovable and have sufficient properties to maintain his position. As against this evidence there is the fact elicited from him in oross examination that he did not himself effect the compromise and he admits that he never told any one about this matter. P.W 18 too claims to have taken part in the preliminary negotiations, but as he was witness to the will which was attacked as forgery he is not perhaps a very reliable witness. D.W 6 makes an admission which is important considering that he was supporting the defendant. He states that Nataraja was disputing the will as a forgery and that after the refusal to register it he was intending to adopt further proceedings, but that one Ramasami Aiyar brought Nataraja from Madura and settled the disputes between him and Tandavaraya. Nataraja gives evidence himself as D.W 13. He was in a somewhat difficult position because he could not admit that his claim was false and at the same time he had to try and to minimise the circumstances attending the arrangement.
22. What he does is to throw the whole blame for the position on the Zamindar of Sivaganga and to deny any knowledge of an attempt to obtain sanction against Tandavaraya. He does, however, make one unguarded admission, which is as follows: “My objections to the registration of the will were all founded on facts.” By the term “facts,” he cannot, of course mean anything else than that the will was a forgery. That, coupled with his persistance in the witness box in adhering to the story of his own initiation and appointment, gives no room for doubt that if he had not been satisfied with the arrangement made, he would have persisted in his claim to the Pandarasannadhiship in his opposition to the will as a forgery and even possibly in his charge of murder against Tandavaraya. I think it right to say here that there never was the slightest ground for suspicion of murder, but the attack on the will was very serious indeed. We are bound to presume that the Registrars applied their minds to the case, and they had coma to a conclusion which placed Tandavaraya in a very difficult position. The will had been found against him in two exhaustive enquiries, in addition to which Nataraja was alleging an appointment in support of which he would doubtless be able to produce some evidence though I agree with the Subordinate Judge in his view that Nataraja's story of appointment is false. Nataraja in his written statement filed in the suit brought by the Zamindar of Sivaganga referred to above has endeavoured to evade responsibility.
23. In that suit (Original Suit No. 53 of 1895 on the file of the Court of the Subordinate Judge of Madura East), the Zamindar of Sivaganga claimed the right of appointment and asked for the removal both of Tandavaraya and Nataraja Ex. E1 is the written statement of Nataraja. He there relies on his appointment as Chinnapattam and states that he yielded to the instigation of the plaintiff (thezamindar) and that owing to his own imperfect knowledge of facts he made certain allegations impeaching the will, but that when he understood the real facts and the bad motives of his advisers, namely, the plaintiff and his officers, he rejoined the mutt which he had left under evil advice and in the position of a disciple was duly appointed Chinnapattam. It is to be noted that he says not one word about his own appointment by Arumuga Desikar and admits that he was only a disciple at the time of his appointment by Tandavaraya. These facts and a number of circumstances of less importance have been examined before us by the learned vakils and the inference sought to be drawn therefrom has been nrged at great length and with great force by both sides. In the result I am satisfied that Tandavaraya would not have appointed Nataraja his opponent as his successor, were it not for his desire to secure himself from further opposition. In my opinion he did not appoint him in the true interests of the mutt. He consented to an arrangement of an unusual character under which he parted with a considerable portion of his temporal rights with an eye solely to his own security, and under pressure of great danger to himself.
24. It remains to apply the law to this finding on facts. First as to the question of the compromise: admittedly it was one and admittedly the defendant's right to the Pandarasannadhiship owes its birth to that compromise. But is that fact alone sufficient to make the appointment bad? Mr. Krishaswami Aiyar relies strongly on a decision in Sundarambal Ammal v. Yogavanagurukkal(5). In that case, as appears from the judgment of Sadasiva Aiyar, J. the Court was dealing with a suit in which the claim in the dispute was to one-half share of the puja miras of a certain temple. The puja miras involved certain religious duties and the holder was entitled to some emolument. A compromise was come to, which was found by the learned Judge to amount to an alienation of a portion of a religious office by one of the parties in favour of the other for a pecuniary benefit, and the learned Judge refused to allow the compromise on the ground that it was not a lawful agreement on which a decree could be passed. The proposition he lays down is as follows:
“There can be no lawful compromise made of a dispute in respect of a religous office, the proper performance of the duties of which concerns not merely the parties to the compromise but principally affects the religious trust itself and the Hindu public for whose benefit the religious trust exists.”
25. The chief authority relied on for this proposition was the well known case arising out of the dispute between the Rajah of Ramnad and certain Shanars, Rajah M. Bhaskara Sethupathi v. Narayanasamy Gurukkal(6). I do not think that this latter case supports the wide proposition laid down by the learned Judge. The view taken by the Judge in that case was that the so-called compromise was a betrayal of rights successfully established in one Court by the person who vindicated them. In another case, Ravi Varma Rajah v. Ramasubramania Pattar(7), the same learned Judge in dealing with a compromise with regard to property the subject of a religious trust and not with regard to the office itself uses language somewhat analogous but I do not think that case helps us much. Reliance is placed on a case in Mohammad Ibrahim Khan v. Ahmad Said Khan(8), but the point decided there was much narrower, viz., that a dispute as to the right of succession to a muttawaliship could not be settled by arbitration so as to oust the jurisdiction of the Court.
26. The Advocate-General contends that the right to compromise matters of dispute arising in religious and charitable trusts does exist and he relies on a decision of the Privy Council in Ramanathan Chetti v. Murugappa Chetti(9), but what was settled there was, however, merely an arrangement made by disputing parties for the due execution of the functions belonging to the office in turns or in some settled order and sequence. The case in Giyana Sambandha Pandara Sannadhi v. Kandasami Tambiran(10) is mora in point, for there a dispute as to right to appoint between the heads of two different mutts was compromised by an arrangement under which the persons holding office had their title recognised but the next Chinnapattam was to be selected from the rival mutt. Another case Nilakandan v. Padmanabha(11), is instructive because it went to the Privy Council.
27. In that case disputes arose between certain parties as to the management of a temple in South Malabar which were temporarily set at rest by a compromise in 1845 and again in 1874, but the question was re-agitated 20 years latter and it was urged that the compromise was not binding. It is to be noted that although it was attacked on the ground that it created a new right and thereby varied the original trusts of the institution, it was not argued before the Board that the compromise was unlawful as relating to a religious trust [vide Nilakandhan Nambudirapad v. Padmanabha Revi Varma(12)]. Girijanund Datta Jha v. Sailajanund Datta Jha is a decision directly in point, for in that case a suit was brought on an ekrar executed by the priest of an idol for arrears of maintenance and the defence was raised that the agreement was without lawful consideration as it amounted to a bargaining for the public office of high priest of a public shrine.
28. The Court found that the ekrar was entered into in consequence of attempts made both by the plaintiffs and the defendant to obtain the post of high priest on the death of the last holder of the office and that the dispute concerning this succession was settled by that compromise. The cases on the point were elaborately considered by the Court and the conclusion come to was that there was nothing contrary to public policy in the fact of the settlement of the dispute as to succession by a compromise and lastly we have two recent, decisions of this Court to both of which the learned Chief Justice was a party, in which this question was discussed. They are Arunachellam Chettiar v. Velappa Thambiran(13) and Thiruvambala Desikar v. Chinna Pandaram(14). The result of both these cases may be summed in the language of the Chief Justice in Arunachellam Chettiar v. Velappa Thambiran:
“The better view appears to be that compromises of suits entered into by trustees of charitable endowments, are not necessarily void.”
29. And this doctrine would seem to have been applied both in that suit in which no question of title between disputing claimants was involved, as well as in the latter case in Thiruvambala Desikar v. Chinna Pandaram, where the right of a matadhipathi to remove the junior was in question and a compromise decree had been passed recognising the position of the junior. On a consideration of all the authorities, I have come to the conclusion that a trustee of a religious and charitable trust has, in respect of a litigation not affecting the office, the same right of compromise as an ordinary trustee has, and that a compromise even of conflicting claims to an office is not necessarily unlawful or opposed to public policy but must be scrutinized by the Court before which it is pleaded for the purpose of ascertaining whether it is in violation of the trust of the institution, or affects adversely the interests of the religious public. That disposes of the first objection taken by Mr. Krishnaswami Aiyar.
30. The next objection is one which arises on the view of the law which I have just stated. Mr. Krishnaswami Aiyar has urged the broad proposition that where any benefit is reserved by or aborues to a party entitled to make the appointment, the appointment is bad whether it be by compromise or by agreement. He has relied strongly on the analogy of the exercise of the power of appointment by a donee of a power and has quoted a large number of English cases. The Advocate General, on the contrary, has invited our attention to a number of cases in which a reservation of rights was not held to vitiate the appointment. In my opinion a great deal turns on the question whether the circumstances relied on to impeach the appointment, constitute a motive for the appointment or whether the appointment was made with the intention of securing a benefit. But I do not think it necessary to examine the cases as in my opinion, although the principles applied in these cases may be of some assistance, they have not sufficient bearing to require detailed consideration. The Advocate-General has relied on the principles by which an adoption agreement made by a Hindu widow under which she acquires a distinct benefit is not illegal and asks us to apply that rule. I think the analogy still more remote and I will not deal with the cases. I would adopt the language of the Chief Justice in Arunachellam Chettiar v. Velappa Thambiran in respect of this very question of compromise by a Pandarasannadhi. In that case the position of a Pandarasannadhi as regards alienations had been compared to that of a Hindu widow and the learned Chief Justice in delivering the judgment of the Court said as follows:
“We agree with the observation in Muthusamir v. Sree Sree Methanithi Sammiyar Avergal(15) that it is dangerous to press these analogies too far.”
31. In the case of an incumbent of a religious office whose rights and duties are mainly governed by usage, and whose duties extend to a religious public that knows nothing of the arrangements under which he succeeds to the office, I would prefer to confine myself to the very simple test laid down by their Lordships of the Privy Council in Ramalingam Pillai v. Vythilingam Pillai. This decision was an appeal from our own Court and the question to be determined was whether the appellant was the lawful dharmakartha or trustee of the Rameswaram temple. On 30th January 1894 the High Court removed one Ramanatha Pandaram from his office and on the same day he appointed the appellant as his successor purporting to make the appointment on a consideration of the fact that the appellant was a man of learning and of good character.
32. The appointment was held to be bad, because Ramanatha Pandaram had already been removed and had therefore no power to appoint. But their Lordships further observed as follows:
“Another objection to the appointment of the appellant is that both Courts have found that it was not made bona fide. * * * The Judges of the High Court, referring to the proved facts, says: With these facts before us, we cannot say that the Subordinate Judge was not warranted in finding that the appellant's appointment was made by the former Pandaram in furtherance of his own interests and that it was not a bona fide exercise of his power if any. This finding of both Courts invalidates the whole appointment. It applies to the headship of the Mutt as well as the office of the dharmakartha.”
33. In my opinion we have but to apply this language. The object in that case was certainly more grossly apparent than in this case, because the Pandaram had arranged for a personal allowance to himself after his dismissal, but the principle laid down by the Board seems to me to be of general application. On the conclusion that I have arrived at on the facts, viz., that the appointment was not made with the intention of benefiting the institution but really to protect his own position which was in serious danger, I am of opinion that it is one which could not be upheld if attacked in the proper manner and at the proper time. It remains now to consider certain objections, raised by the Advocate-General to our exercise of the power of removing the defendant. The first objection is one of limitation. He contends that the Pandarasannadhiship to which the defendant succeeded in March 1902 was only the taking up of an office which necessarily vested in possession and that the right to succeed to it became vested in 1894, more than six years before the suit. In my opinion this contention cannot succeed. It is admitted that according to the usage of the Mutt, Chinnapattam can be removed for misconduct and so his right of succession is not absolute. Further the position of Chinnapattam is one of greatly inferior sanctity and importance audit might well be that the persons interested would consent to his holding that office, although they were not willing to allow him to become Pandarasannadhi. I am therefore of opinion on the application of Article 120, Lim. Act, that the right to sue to remove him from the office of Pandarasannadhi vested in persons entitled to sue on the occasion of his taking that office, although the right to sue to remove him from the office of Chinnapattam vested at the time of the appointment to that office.
34. In this view I do not think it necessary to consider whether the right arises only on the sanction by the Advocate-General. The next objection raised; on behalf of the defendant is that by efflux of time the irregularity of the appointment is cured, and a number of English cases were brought to our notice. In my opinion, this is not a case of irregularity of appointment. It might be that if the qualification of a person appointed fell little short of those required by the usage and the appointment was otherwise unobjectionable and was made in the interests of the institution, the Court would not interfere. But here we have an appointment not made in the interests of the institution and the case is entirely different from those in which the appointment of a minister of religion not belonging to the particular sect of founder, was upheld after it had existed for a considerable time. I will now deal with two objections raised by the Advocate-General on procedure which, he claims, stand in the way of our giving effect to the view we take of the agreement and appointment. The first is that there was no issue raised in either of these suits as to the validity of the appointment. That is in fact so. But the allegation of invalidity was distinctly made in both plaints: (vide para. 13) and pleaded to in para 9 and further, the validity of the subsequent cancellation of the appointment was alleged in the plaint and denied in the written statement in paras. 13 and 20 respectively and an issue was framed on this (Issue 16). When these suits came on for trial they were heard with another suit Original Suit No. 19 of 1912, which had been filed some years later.
35. This suit was by a person who claimed the office by virtue of appointment by the Tambirans. The pleadings in that suit are not before us but the issues are and one of them (No. 4) is:
“whether the appointment of the defendant made by the late Than davaraya was made mala fide and to serve his own purpose and therefore Invalid.”
36. The whole of the evidence relating to the three suits was recorded by consent of parties in Original Suit No. 17, that is, Appeal No. 317: vide judgment of lower Court p. 52, and the Judge finds on the question of the validity of the appointment on issues 1 and 2 in the suits before us and on issues 3 to 5 in the other suit. I am satisfied that the matter was treated as in issue in the present suit and that the non-existence of a specific issue at the trial was not considered of any importance there being the issue in the other suit. At the worst it would only be necessary for us to frame the issue formally in these suits and that can, if necessary, be deemed to be done. The next objection is more serious. It is contended that the Court has no power to remove the defendant in the present suits which are brought under S. 92, with the consent of the Advocate-General. The learned Chief Justice has dealt with the history of those suits and I entirely agree with him in holding that it is not open to us to re-consider a decision already given in Appeal No. 317 of 1913. That decision is part of the judgment in this appeal and can only be questioned on appeal to the Privy Council. To the extent, therefore of the relief claimed in Appeal No. 317 of 1913 to remove the defendant from the headship of the Mutt, the matter is already decided and the suit fails. I entirely agree however with the learned Chief Justice that as to the second relief in Appeal No. 317, of 1913 and the whole of the matter in issue in Appeal No. 318 of 1913, we are not prevented by the first decision or the above view from giving effect to our finding. It is our duty to remove a trustee whose appointment is bad and in my opinion the fact that the trusteeship vests ex officio in the holder of an office which we cannot ouch in this suit makes no difference whatsoever. The decrees will be as stated in the judgment of the learned Chief Justice.
S.N/R.K
37. Appeal partly allowed.