BOIDYO GAURANGA SAHU Vs. SUDEVI MATA

JUDGEMENT

(1.) The institution of the hereditary office of trustee of religious and charitable endowments is in accordance with the custom of the country recognized in Madras Reg. VII of 1817 and Act XX of 1863 and is too firmly established to be altered without legislation. It affords however no guarantee of fitness for the exercise of the office and may be held largely responsible for the numerous cases of waste and misappropriation of these endowments which come before the Court, and, it is to be feared, for a still larger number which are never brought before it. The exercise and enjoyment of the office in the event of the successive partitions to which families in India are liable also present difficulties which are illustrated by Ramanathan Chetty v. Murugappa Ghetty (1903) I.L.R. 27 M. 192 which was affirmed by the Privy Council in Ramanathan Chetti v. Murugappa Chetti. (1906) I.L.R. 29 M. 283 (P.C.). In these circumstances it would perhaps be better if it had never been held that on failure of the line of devolution prescribed by the founder the trusteeship reverted as an hereditary office to the heirs of the founder. But, as observed in the order of reference, this view has been regarded as unassailable by a long course of decisions, and I do not feel at liberty to differ from them. This being so, there is, I think, much to be said for the view of the Allahabad and Calcutta Courts recognizing the right of the founder s heirs to make fresh arrangements for the devolution of the trust instead of leaving it to devolve as otherwise it must in the family of the founder subject to the difficulties as to its exercise and enjoyment to which I have already alluded. The institution of hereditary trusteeship is held to rest on the intention of the donor either expressed in the instrument of trust or to be presumed from usage, and the doctrine of reverter to the heirs of the donor on failure of the line of devolution prescribed by him must also it seems to me rest on his presumed intention. This being so I do not see much difficulty in presuming an intention that the heirs should be at liberty to make fresh arrangements for the devolution of the trust instead of leaving it to devolve in the family a result which the founder had shown himself anxious to avoid. In Ramanathan Chetty v. Murugappa Chetty (1903) I.L.R. 27 M. 192, Benson and Bhashyam Ayyangar, JJ., were of opinion, that, when the office of trustee devolved upon the members of a Hindu family, it was open to them to settle a scheme for the enjoyment and exercise of the office in rotation, and their decision was upheld in Ramanathan Chetty v. Murugappa Chetty (1906) I.L.R. 29 M. 283, by their Lordships of the Judicial Committee who held that the arrangement was one which the parties interested were competent to make without applying to the Court. That no doubt was not a case in which the trusteeship had reverted to the heirs of the founder on failure of the line prescribed by him. But in such an event also it seems to me more convenient and more in accordance with the presumed intention of the founder to allow fresh arrangements to be made instead of leaving the office to devolve on the heirs. It might I agree bs still better if it were opes to us in such a case to exclude the heirs of the founder altogether and leave a scheme to be settled by the Court, The right of nomination in such circumstances appears to have been recognised by the Court of Sudder Adalat, Mad. S.D.A. No. 52 of 1857. The decision of Muttusami Aiyyar, J., in Sathappayyar v. Periasami (1890) I.L.R. 14 M. 1, does not in my opinion help either side. What the learned Judge did was to recognize a right of appointment, not in the plaintiff as heir of the founder or in the Court, but in the plaintiff and his family as the beneficiaries under the trust. At page 13 the proper decree is said to be to declare the respondent s right to appoint a person qualified to discharge the peculiar trusts as new trustee with the concurrence of the members of the family. The statement as to the decree in the order of reference was made under a mis-apprehension, as what the decree does isto declare the right of the plaintiff to nominate with the concurrence of his family and to direct the properties to be handed over to the person so nominated, and in default of nomination to dismiss the suit, and this appears to me to have given effect to the intention of the learned Judge. The other cases are sufficiently dealt with in the order of reference and the opinions of my learned brothers and it is unnecessary to refer to them. I would answer the question in the affirmative. Abdur Rahim, J.

(2.) To my mind the question whether the right of nominating a trustee to a Hindu religious endowment vests in the heirs of the founder in the absence or failure of a specific provision in the deed of endowment or where there are No. special usages or circumstances indicating a different mode of devolution, is concluded by authority and must be answered in the affirmative. It is not suggested that there is any text of Hindu Law bearing on the point, but the question has been the subject of unanimous rulings of this Court as well as the Allahabad and Calcutta High Courts, the later decisions bsing mainly founded on the pronouncement of the Judicial Committee in Gossami Sri Gridhariji v. Romanlalji Gossami (1889) I.L.R. 17 C. 3 at page 20.

(3.) To begin with the earlier cases. Of the two Madras Sudder Dewany decisions cited by Mr. Maynein his Hindu Law (paragraph 440) as negativing the right of nomination by the heirs of the founder, all that was decided in Case No. 50 of 1851, page 57 was that the heirs of a founder were not entitled to recover possession of the endowed properties from a trustee who had been properly appointed or to demand accounts from him. The statement that "it is obvious that in the management of charitable institutions, the heirs of the founder can have no legal right to interfere unless under some special powers given to them by the founder" should not be given a wider application. Case No. 52 of 1857 (at page 152) clearly ruled that on the death of the first Dharmakartha appointed by the founder the latter s heir had the right to appoint a fresh trustee. In 1870 a Division Bench of the Calcutta High Court of which Dwarkanath Mitter, J. an eminent authority on Hindu Law, was a member, held in Peet Koonwar and Anr. v. Chuttur Dharee Singh, (1870) 13 W.R. 396 same case - Mussamat Jai Bansi Kunwar v. Chuttar Dhari Sing (1870) 5 B.L.R. 181 that where the Mutawalli of an endowment dies without nominating a successor, the management must revert to the heirs of the person who endowed the property. The endowment in question in that case, it may be mentioned, was made by a Hindu for an idol though the words Mutawalli and waqfae (Mahomedan Law terms for trustee and deed of endowment respectively) were used in connection with the dedication.