1. The question referred for the decision of the Full Bench is this:
"Does the head of a mutt hold the properties constituting its endowment as a life-tenant or as a trustee."
2. I do not think that the question admits of, a categorical answer, as the incidents attaching to the endowments of a mutt depend upon the conditions on which the endowments were given, or, when these are no longer discoverable through the mist of antiquity, the incidents may be inferred from the long continued practice and usage of the institution in respect of the endowments in question. As laid down by their Lordships of the Privy Council in Greedharee Doss v. Nundokissore Doss Mohunt 11 M.I.A. 405 at p. 428 : 8 W.R. 25 (P.C.),
"the only law as to these Mohunts and their offices, functions and duties is to be found in custom and practice, which is to be proved by testimony."
3. The origin and growth of mutts and the position of the head of the mutt, usually called the Mohunt or Swami, have been discussed by learned Hindu Judges of this Court in the cases of Sammantha Pandara v. Sellapa Cehtti 2 M. 175, Giyand Sambandha Pandara Sannadhi v. Kandasami Thambiran 10 M. 375 and Vidyapurna Thirtha Swami v. Vidyanidhi Tirtha Swami 27 M. 435, and the present reference has been (sic) consequence of the difficulty which was felt in reconciling some of the dicta in the last case with the views enunciated in the two earlier cases. If, however, it is borne in mind that general observations made in the course of a judgment must be applied with reference to the facts of the case in connection with which they were made, and also subject to limitations expressed in other parts of the judgment much of the difficulty is removed.
4. In Sammantha Pandara v. Sellappa Chetti 2 M. 175, it is stated "the origin of mattams is ordinarily as follows: A preceptor of religious doctrine gathers around him a number of disciples whom he initiates into the particular mystries of the order, and instructs in its religious tenets such of these disciples as intend to become religious teachers, renounce their connection with their family and all claims to the family wealth, and, as it were; affiliate themselves to the spiritual teachers whose school they have entered. Pious persons endow the schools with property which is vested in the preceptor for the time being and a home for the school is erected and a mattam constituted. The property of the mattam does not descend to the disciples or elders in common; the preceptor, the head of the institution, selects among the affiliated disciples him whom he deems the most competent, and in his own life-time installs the disciple so selected as his successor, not uncommonly, with some ceremonies. After the death of the preceptor the disciple so chosen is installed in the gaddi and takes by succession the property which has been held by his predecessor. The property is in fact attached to the office and passes by inheritance to no one who does not fill the office. It is in a certain sense trust property; it is devoted to the maintenance of the establishment, but the superior has large dominion, over it, and is not accountable for its management, not for the expenditure of the income, provided he does not apply it to any purpose other than what may fairly be regarded as in furtherance of the objects of the institution." As regards the statement of the law it may be observed that the concluding words "in furtherance of the objects of the institution" are too wide. As pointed out in Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Swami 27 M. 435, the limitation should rather be to purposes "necessary for the maintenance of the mutt as such." It may also be observed that the property is spoken of as being in a certain sense "trust property" and it is expressly stated in the judgment that it is not intended to lay it down that there are not mattams which may have been established for purposes other than those described, or that property may not in some cases be held on different conditions and subject to different incidents.
5. In. the case of Giyana Sambandha Pandara Saanadhi v. Kandasami Thambiran 10 M. 375, the question was as to the relations that existed between the head of a mutt and the head of the adhinam to which the mutt was affiliated. Some 2,000 documents were filed and 150 witnesses were examined. The statement of the law above quoted from Sammantha Pandara v. Sellappa Chetti 2 M. 175, was referred to with approval (page 474), and it was pointed out that in its original and narrow sense the term mutt signified the residence of an ascetic (who was styled a sannyasi if a Brahmin or a Paradesi if a Sudra) but that from the time of Sankarachariar these mutts developed into institutions devoted to the teaching of different systems of religious philosophy and centres of classical learning. The ascetics who presided over them were held, owing to their position as religious preceptors and often also in consequence of their own learning and piety, in great reverence by Hindu princes and noblemen, who from time to time made large presents to them and endowed the mutts under their control with grants of lands. Thus, a class of endowed mutts came to existence in the nature of monastic institutions, presided over by ascetics or sannayasis who had renounced the world. Thus, the ascetic who originally owned little or no property, came to own the mattam under his Charge and its endowment in trust for the maintenance of the mutt, for his own support, for that of his disciples, and for the performance of religious and other charities in connection with it, according to usage. * * * * * * "It will be remembered that the ascetic is prevented by the usage of his order from owning or managing property for personal enjoyment. The administration of a mattam endowment presided over by an ascetic was an exception to the rule recognised on the ground that such administration was in furtherance of the cause of religion". In the evidence in that case it was proved that in many instances Rajahs and others had entrusted extensive properties to the heads of the mutts for the purpose of carrying out specified charities. In such cases there can be no doubt but that the head of the mutt is a trustee in regard to 'such properties bound to carry out the trust, and subject to the ordinary liabilities of a trustee, though, doubtless, with a wide discretionary power of dealing with the income' of the trust property in carrying out the trust. In other instances it was shown that landed properties were acquired by the head of the mutt in his own name and apparently with his own funds, and the deeds specified that the properties were to be enjoyed by the purchasers and their successors in the line of disciples. In such cases, in the absence of evidence to the contrary, it would be difficult to presume that the properties were acquired as trust properties, since it is well known that gifts are made to pious Brahmins and to ascetics who are heads of mutts not for any specific charitable or religious object, or with any intention of creating a trust, but rather for the spiritual benefit of the donor, since gifts of the kind are considered to be meritorious on the part of the giver. But if in any case it is proved that according to the well established practice and usage of the mutt, the income of any specified property has for very many years been; devoted lb a particular charity or religious object, it would be evidence from which a trust in respect of such property might be inferred. Tudor's Charitable Trusts, 4th Edition, page 160. If we turn now to the case of Vidyapurna Tirtha Swami v. Vidyanidhi Thirta Swami 27 M. 435, we find that the question for decision was whether the head of a mutt forfeited his position as such by becoming a lunatic. No custom to that effect was proved, and it was admitted that under the Hindu Law, lunacy does not operate to divest rights already acquired, but it was argued by the appellant that the head of a mutt was, as such, a trustee, or in a position analogous to that of a trustee, and, that, therefore; on the analogy of the English Law of Trust compendiously reproduced in Sections 73 and 74 of the Indian Trusts Act--a new head of a mutt should be appointed if the person holding the position became unable personally to act in the trust by reason of lunacy. It was to show that that contention was untenable that the judgments of the learned Judges were directed; raised the plea that, even if the question of proprietary title were decided against them, they would still be entitled to object to the partition as usufructuary mortgagees in possession of the shares in question. They in effect pleaded the proviso to Section 107 of the Land Revenue Act, and no doubt this proviso was in the mind of the learned District Judge when he passed the order he did. The question is whether it lay with the District Judge to decide or to give effect to the objection taken before him by the respondents with reference to their mortgagee rights. If the respondents had never claimed proprietary rights in the Assistant Collector's Court in inspect of the shares in question, but had simply replied that the entries in the village papers were. quite correct, that they were in possession as usufructuary mortgagees and that they were entitled as such to object to the partition because of the proviso to Section 107 of the Land Revenue Act, would the decision of the Assistant Collector on this point have been appealable to the District Judge as a decision falling under Section 111 of the said Act? We conceive not. The Assistant Collector would not have determined any question of "proprietary title" in the sense in which the words are used in the Land Revenue Act. He would have had to decide first of all whether he could go behind the entries in the village records at all, and then whether the respondents' objectors were in fact in possession of the shares sought to be partitioned or of any portion of the same. His decision would have been appealable to the higher revenue authorities or the mortgagees might subsequently ?have brought a suit in a Civil Court for recovery of mortgage-possession on the allegation that they had been dispossessed in ?consequence of the partition proceedings. It seems clear to us that the question of the existence or otherwise of a mortgage charge upon particular property is not one which legislature intended to be determined in the course of partition proceedings. The question whether a person claiming to be an usufructuary mortgagee is or is not actually in possession, is one, which an Assistant Collector conducting a partition may have to determine because of the proviso to Section 107 of the Land Revenue Act, though we express no opinion as to whether the indention of that Act was to allow a "recorded co-sharer" to apply for partition in respect of a share entered in the village papers as in. the possession of usufructuary mortgagees without first getting the names of the said mortgagees removed from the record, All we have to decide is whether a finding by an Assistant Collector that a person claiming to be usufructuary mortgagee of a particular share either is or is not in possession of the same, is one which determines a question of "proprietary title" within the meaning of Section 111 of the Land Revenue Act, and is appealable to the District Judge as such. We are of opinion that it is not.
6. With these remarks, we set. aside the order and decree of the lower appellate Court, and remand the case to the said Court under the provisions of Order XLI, Rule 23 of the Civil Procedure Code for disposal of the questions of proprietary title raised by the appeal and cross-objections filed in that Court. The costs of this appeal will abide the event.
7. Costs in this Court will include fees on the higher scale.