NELLIAPPA ACHARI Vs. PUNNAIVANAM ACHARI

JUDGEMENT

(1.) This is an appeal from the judgment and decree of the Subordinate Judge of Tinnevelly. The suit was brought by five persons with the sanction of the Advocate-General under Section 92 of the Civil Procedure Code against the head of the Mutt, Parasamaya Kolarinatha Swamigal and his two sons, for a declaration that certain properties belong to the Parasamaya Kolarinatha Madam at Tinnevelly, that the defendants were in unlawful possession of the property and for a scheme. The defendants in their written statement denied that the properties in question were endowed for a public, religious and charitable trust or that the Madam was of a public, religious and charitable character. They alleged that the properties were the private property of the head and that from time immemorial the head of the Mutt had been treated as the administrative and disciplinary authority over the five sections of the Viswa Brahmins in the Tamil Districts of South India, Travancore, Cochin and Malabar.

(2.) The Subordinate Judge held inter alia on the first two issues which are the only ones in question in the present appeal that the Mutt was a public, religious and charitable institution within Section 92 and that some portions of the properties were held in trust for the institution by the head of the Mutt for the time being and were not the absolute private property of the Madathipathi.

(3.) A question as to the validity of 1 defendant's adoption was also raised. On the appeal these questions were raised, viz., (1) estoppel by reason of the judgment in O.S. No. 4 of 1919 on the file of the Temporary Subordinate Judge of Tinnevelly, Ex. B; (2) no vacancy in the office because defendant 1 had acquired title to it by adverse possession, and (3) the incompetency of the suit under Section 92. The first two points were given up and the appeal confined to the last point the contention being that the head of this Mutt is not a trustee. The Mutt now appears to be very poor owning only 11 marakkals of land and its affairs have been "in confusion" for several years. There is evidence that besides the per capita contribution of the Sishyas there is some lands--Kandyapperi and Shorandai. It is said that the latter is held by the Swami on express trusts. That the lands are Mutt property is, I think, undoubted. Exs. Exs. FFF-1, GGG, GGG-1 in Appeal No. 321 of 1912 on the file of the High Court show that in some instances pattas are granted in the official name of the Swami and there is no mention of the Mutt and in others the word "Mutt" is appended. It was argued that the properties were the personal properties of the head, but the argument was not seriously pressed. It was recognised that the Swami took the properties burdened with obligations to devote the income to the purposes for which the institution was founded and was precluded from alienating the corpus, but it is said that he is not a trustee either express or constructive so as to fall under Section 92, C.P.C. I very much doubt and in fact I am not prepared to hold on the evidence that he is an express trustee of any of the properties. That the properties or some of them belong to the Mutt there can be, I think, no question. The matter was considered by Wallis, C.J., and Hannay,., in Appeal No. 321 of 1912 (Ex. A) and they held that at least some of the properties belonged to the Mutt and that there was evidence that the income was derived from the properties solely employed for religious, public and charitable purposes. Assuming then that some of the properties in question were Mutt properties, what is the position of the head with regard to them? This had led to an argument on the whole question as to whether the head is or is not a trustee. I proceed to state the inferences I draw from the principal cases on the point. There is no need to go into the history of these Mutts in Southern India. This has been done in Sammantha Pandora V/s. Sellappa Chetty (1879) ILR 2 M 175. and Gnana Sambanda Pandara Sannadhi V/s. Kandasami Tambiran (1887) ILR 10 M 375. and is recapitulated in the referring judgments of Munro and Abdur Rahim, JJ., in Kailasm Pillai v. Nataraja Thambiran. In Vidyapurna