KAILASAM PILLAI Vs. NATARAJA TAMBIRAN

JUDGEMENT

(1.) These are appeals in two 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 Code of Civil Procedure 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 Devasthanams 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 Code of Civil Procedure. 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 Registrar subsequently refused to register on the ground of forgery, and that shortly after the first defendant was appointed as his successor "out of fraudulent and sinister motive" and that the appointment was void. The first issue settled in both suits was, "whether the 1st defendant (the de facto incumbent of the office) is a mere trustee of the Mutt and has not got an estate for life in the Adhinam properties? On the 14th March 1906 the District Judge dismissed both suits holding, on the authority of Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Swami (1904) I.L.R. 27 Mad. 435 that the Pandarasinnadhi was not a mere trustee and that no suit lay he his removal under Section 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 Rahim, JJ. on appeal, they held that in any case there was no reason why the properties belonging to the Devasthanams which the 1st defendant 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 first issue, "does the head of a Mutt hold the properties constituting its endowment as a life-tenant or as a trustee?" 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. See 19 M.L.J. 778 : 33 Mad. 265. When the case went back to Munro and Abdur Rahim, 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.

(2.) The two cases after remand were transferred to the file of the Temporary Subordinate Judge of Ramnad and numbered in that Court 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.

(3.) 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 this 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 Parkash Das v. Anand Das (1916) I.L.R. 43 Cal. 707 : 31 M.L.J. 1 (P.C.). 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.