TaxTMI 
TaxTMI 
1921 (7) TMI 2
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....same idea of headship. At the time this action was brought, the 26th defendant held the office of matathipathi. He has since died and the present appellant is the head of the institution. In 1891 one Srinivasa was the matathipathi and he on March 17 of that year granted to the 2nd plaintiff, a near relative, a permanent lease of the lands in the suit, on a small quit rent of Rs. 24 a year. Shortly after the grant of the lease Srinivasa died, and was succeeded by one Samudra, who held the office until 1906, On his death the now deceased defendant No. 26 became the bead. In 1902 the 2nd plaintiff sub-leased the lands to the 1st and 2nd defendants for a period of ten years. 2. Since 1905 the math has been under the management of the Mysore State under a power of attorney, executed at first by the matathipathi Samudra and afterwards by his successor, in favour of the Dewan and his successors in office. About the same time the 2nd plaintiff conjointly with his son (the 3rd plaintiff) assigned their right and interest in the lands in suit to the 1st plaintiff. It is in evidence and, so far as appears from the judgments of the two Courts in India, does not appear to be contradicted, th....
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....e merely, and that the permanent lease to second plaintiff is an alienation of math property and that 26th defendant at this distance of time could possibly have no right to such property. The alienation being ab initito void, the 26th defendant had no right to plaint property as he succeeded only in 1906 and first plaintiff had perfected his title by adverse possession for over twelve years. 6. The Subordinate Judge negatived that contention; he held upon the admissions of the 2nd plaintiff that the property in suit was "ordinary math property " and was not set apart on any specific trust; that the head of the math was not a bare trustee, " as it was admitted that the income was at his absolute disposal and that "none had a right to question him about it. " He found also that the 2nd plaintiff took the lease with full knowledge of the character of the endowment and had learnt on inquiry that " he could not safely purchase it." 7. With regard to the question of estoppel arising from the alleged acceptance of rent by the 26th defendant as the plaintiffs contended, the Subordinate Judge held : "In fact the 1st plaintiff never paid money as rent and the 26th defendant or his age....
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....orted by any documentary evidence. The description of the in am as given at the close of the inquiry is that it was granted 'for the support of Vyasaraya matam' (Exhibit L.). Compare also description in Exhibit F. The evidence for the defendants is that the income from this property is not appropriated to any particular purpose but forma part of the general finds of the math. I think the grant must be held to have been made for the general purposes of the math. 10. They thus concur with the first Court that there was no "specific trust" which was the foundation of the plaintiff's case. But after examining some of the judgments of their own Court, they apparently felt constrained to hold that the decision of this Board in Ram, Parkash Das v. Anand Das (1916) L.R. 43 I.A. 73 had crystallized the law on the subject, and definitely declared the mahant to be a "trustee." It is to be observed that in that case the decision related to the office of mahant, but in the course of their judgment their Lordships conceived it desirable to indicate inter alia what upon the evidence of the usages and customs applicable to the institution with which they were dealing, and similar in....
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....s criticised, and rightly, in their Lordships' opinion, in the subsequent case, which arose also in the Madras High Court, of Kailasam Pillai v. Nataraja Thambiran. (1909) I.L.R. 33 Mad. 265 To this judgment their Lordships will have to refer further later on. 11. It is also to be remembered that a "trust" in the sense in which the expression is used in English law, is unknown in the Hindu system, pure and simple (J.G. Ghose, "Hindu Law" p. 276). Hindu piety found expression in gifts to idols and images consecrated and installed in temples, to religious institution of every kind, and for all purposes considered meritorious in the Hindu social and religious system; to brahmans, goswamis, sanyasis, etc. When the gift was to a holy person, it carried with it in terms or by usage and custom certain obligations. Under the Hindu law the image of a deity of the Hindu pantheon is, as has been aptly called, a "juristic entity," vested with the capacity of receiving gifts and holding property. Religious institutions, known under different names, are regarded as possessing the same "juristic" capacity, and gifts are made to them eo nomine. In many cases in Southern India, especially wh....
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....here Hindu religious instruction is dispensed. The head of these khankhas, which exist in large numbers in India, is called a sajjadanishin. He is the teacher of religious doctrines and rules of life, and the manager of the institution and the administrator of its charities and has in most cases a larger interest in the usufruct than an ordinary mutawalli. But neither the sajjadanishin nor the mutawalli has any right in the property belonging to the wakf; the property is not vested in him and he is not a "trustee "in the technical sense. 14. It was in view of this fundamental difference between the juridical conceptions on which the English law relating to trusts is based and those which form the foundations of the Hindu and the Mahommedan systems that the Indian Legislature in enacting the Indian Trusts Act (II of 1882) deliberately exempted from its scope the rules of law applicable to wakf and Hindu religious endowments. Section 1 of that Act, after declaring when it was to come into force and the areas over which it should extend "in the first instance," lays down," but nothing herein contained affects the rules of Mahommedan law as to wakf, or the mutual relations of the me....
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....Revenue. In 1863, under certain influences to which it is unnecessary to refer, the Government considered it expedient to divest itself of the charge and control of these institutions, and to place them under the management of their own respective creeds. With this object, Act XX of 1863 was enacted : a system of Committees was devised to which were transferred the powers vested in Government for the appointment of "managers, trustees and superintendents"; rules were enacted to ensure proper management and to empower the superior court in the district to take cognizance of allegations of misfeasance against the managing authority. Their Lordships are not giving a summary of the Act, but indicating only its general features. The Act contains no definition of the word "trustee"; it uses indifferently and indiscriminately the terms "manager, trustee or superintendent," clearly showing that the expressions were used to connote one and the same idea of management. After the enactment of 1863, the Committees, to whom the endowments were transferred, were vested, generally speaking, with the same powers as the Government had possessed before in respect of the appointment of "managers, tru....
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....fice. 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 nor 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. Acting for the whole institution he may contract debts for purposes connected with his mattam, and debts so contracted might be recovered from the mattam property and would devolve as a liability on his successor to the extent of the assets received by him. 21. The origin and nature of these maths were again considered at great length in a case which arose in the same Court in 1886. In that case (Giyana Sambandha v. Kandasami Tambiran (1887) I.L.R. 10 Mad. 375) the learned judges pronounced that the head of the institution held the mattam under his charge, and its endowment in trust for the maintenance of the math, for his own support, for that of his disciples, and for the performance of religious and other charities in connection therewith according to usage. An almost identical question came up for consideration in 190....
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....perior) as such is not a trustee. He is also not a life-tenant for the reasons already given." All three judges agreed in thinking that if any specific property was specifically entrusted to the head for specific purposes he might be regarded as a "trustee" with regard to that property; but that in the absence of any such evidence the superior was not a trustee in respect of any part of the endowment. 24. The point came up for discussion again in a concrete form in 1913 in Muthusamier v. Sree Sreemethanithi Swamiyar (1913) I.L.R. 38 Mad. 356, where the exact point for decision was the question of limitation. The facts which gave rise to the litigation were almost identical with the present case before their Lordships, with this difference, that the suit there was brought by the head of the math to recover possession of the leased properties. Miller J. stated thus the question for determination: The principal question, a question which arises in both the appeals, is whether the suit is barred by limitation. It is conceded for the appellants that the lease is in excess of the powers of the matathipathi, and their contention is that the suit is barred because limitation mu....
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....e a permanent alienation of temple property in the absence of proved necessity for the alienation." But from the long lapse of time between the alienation and the challenge of its validity, coupled with other circumstances, the learned judges came to the conclusion that necessity may reasonably be presumed. 29. From the above review of the general law relating to Hindu and Mahommedan pious institutions it would prima facie follow that an alienation by a manager or superior by whatever name called cannot be treated as the act of a "trustee " to whom property has been "conveyed in trust" and who by virtue thereof has the capacity vested in him which is possessed by a "trustee" in the English law. Of course, a Hindu or a Mahommedan may "convey in trust" a specific property to a particular individual for a specific and definite purpose, and place himself expressly under the English law when the person to whom the legal ownership is transferred would become a trustee in the specific sense of the term. 30. But the respondents rely on three decisions of the Indian Courts in support of their contention that persons holding properties generally for Hindu and Mahommedan religious purpo....
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....pression to apply to gifts of lands or other property for the general purposes of a Hindu religious or pious institution. The learned judges relied on the two decisions of the Allahabad and Calcutta High Courts to which their Lordships will presently refer. The case, however, was practically decided on the exposition of the law in the case of St. Mary Magdalen, Oxford v. Attorney-General. (1857) 6 H.L.C. 189 With respect to it they say as follows : "In further support of this conclusion we would also refer to the already cited case of St. Mary Magdalen Oxford v. Attorney-General (1857) 6 H.L.C. 189 for though it is a decision on the English statute, still it contains many points of resemblance to the present, and furnishes us with the clearest exposition of the law applicable to cases of this class. We propose to refer to that case in some detail, as it probably is not within the reach of most mofussil Courts in this Presidency." They set out the provisions of Sections 2, 24 and 25 of Will. IV. c. 27, and then add, "the section (Section 25), it will be seen, corresponds more or less with our Articles 134 and 144 and Section 10 of the Limitation Act." Speaking with respect, it seems....
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....teries of dervishism or sufism. This privilege of initiation, of making murids, of imparting to them spiritual knowledge, is one of the functions which the sajjadanashin performs or is supposed to perform." [The endowment is maintained by grants of lands to the shrines by pious Moslems. The head of the institution, like that of a khankah, is called a sajjadanishin. The governance (tow liat) of the endowment is in his hands; he is a mutawali, with the duty of imparting spiritual instruction to those who seek it. The property of the 'shrine' is wakf 'tied up in the ownership of God.'] 33. The appointment of the sajjadanishin is regulated by usage and practice. This is referred to in the same judgment: Upon the death of the last incumbent, generally on the day of what is called the slum or teja ceremony (performed on the third day after his decease), the fakirs and murids of the durgah, assisted by the heads of neighbouring durgahs, instal a competent person on the guddi generally the person chosen is the son of the deceased or somebody nominated by him, for his nomination is supposed to carry the guarantee that the nominee knows the precepts which he is to commu....
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....ustee." Probably the fact that the shebait has duties and obligations in connection with the dedication, influenced the employment of the word "trustee" in a general sense. Mr. Mayne uses the expression in the same general sense to connote the same idea. That the learned judge did not regard the shebait as a trustee in the specific sense may be inferred from his indecisive conclusion as to the application of Article 134 to the plaintiff's claim. It is quite clear, however, that the legal position of a shebait is quite different from that of a trustee to whom specific property is "conveyed" on a specific trust. In Prosunno Kumari Debya v. Golab Chand Baboo (1875) L.R. 2 I.A. 145, 151 where the question for determination was whether a particular transaction challenged as invalid had been entered into for such necessity as would make it binding on the dedication, Sir Montague E. Smith, in delivering the judgment of the Board, scrupulously avoided the use of the confusing word "trustee." Dealing with the powers of the shebait, he said as follows: But, notwithstanding that property devoted to religious purposes is, as a rule, inalienable, it is, in their Lordships' opin....
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....e a new and fixed rent for all time, though adequate at the time, in lieu of giving the endowment the benefit of an augmentation of a variable rent from time to time, would be a breach of duty' in the mohant. There is no allegation that there were any special circumstances of necessity in this case to justify the grant of the pottah of 1860, which on the most favourable construction enured only for the lifetime of the grantor, Pranananda, who died in 1891, or of the pottah of 1896, which, at best, could only be deemed operative during the lifetime of Raghubananda, who died in 1900. 38. The question came up again for consideration by the Board in the case of Palaniappa Chetty v. Deivasikamony Pandara. (1917) L.R. 44 I.A. 147,155, 156 The suit was instituted by the head of a math to recover possession of certain land which formed part of the endowment of a Hindu temple attached to the math, and had been granted by his predecessor to the defendant by a perpetual rent-free lease in consideration of a small sum of money paid at the time. The contention in that case was that the alienation was for the benefit of the institution; that contention was overruled, and the decision proc....
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.... Courts below the plaintiffs rested their claim mainly, if not entirely, on art. 134. Before the Board an alternative argument has been advanced. It is contended that the second plaintiff acquired the title he is seeking to establish by twelve years' adverse possession under Article 144. That article declares that for a suit "for possession of immoveable property or any interest therein not hereby (i.e., by the schedule) otherwise specially provided for" the period of limitation is twelve years from the date when the possession of the defendant became adverse to the plaintiff. In view of the argument it is necessary to discover when, according to the plaintiff, his adverse possession began. He was let into possession by mahant No. 1 under a lease which purported to be a permanent lease, but which under the law could endure only for the grantor's lifetime. According to the well settled law of India (apart from the question of necessity which does not here arise) a mahant is incompetent to create any interest in respect of the math property to endure beyond his life. With regard to mahant No. 2, he was vested with a power similarly limited. He permitted the plaintiff to conti....