Judgement

Appeal from a judgment and decree of the High Court (August 18, 1909) affirming a decree of the Subordinate Judge of Tanjore.

The suit was instituted by the first respondent, since deceased, for partition of the properties of a joint Hindu family of which the adult co-parceners were himself and his two brothers. The first appellant was the eldest brother and managing member. The plaintiff by his plaint also prayed that a scheme should be settled for the management of certain enumerated properties which were admittedly subject to charitable and religious purposes. The purposes for which the latter properties were given were described in the grants as being for perpetually conducting a food chattiram near the tomb of a holy man, and in one case for making an agraharam by building houses round the holy place.

The properties the subject of the litigation had all been granted to an ancestor of the family by the then Rajah of Tanjore. The circumstances of the grants and the other facts appear from their Lordships judgment.

The first appellant by his written statement set out the origin and devolution of the properties, and alleged that the undedicated properties were impartible and descended to him by primogeniture. He further alleged that as head of a mutt founded by the original donor he was entitled to the exclusive management of the properties devoted to charitable objects.

The Subordinate Judge made a decree for partition and by that decree ordered that a scheme for the management of the properties devoted to charity should be settled.

The High Court (Wallis and Sarkuran Nair JJ.), by a judgment reported at I. L. R. 34 M. 470, affirmed the decree.

1917. July 13, 16, 17. Sir Erle Richards, K.C., and Parikh, for the appellants. The properties were granted to the ancestor of the family to enable him to maintain his dignity as royal guru and head of the mutt. It is not disputed that the offices are now vested in the appellant. The properties descended with the offices, and are impartible. Further, there is a custom of gaddinishin in the family, which indicates that there was a custom of primogeniture. [Reference was made to Thakur Nitrpal Singh v. Thakur Jai Singh (( 1896) L. R. 23 I. A. 147. 151, 156.), Garurudhwaja Par shad Singh v. Saparandhwaja Singh (( 1900) L. R. 27 I. A. 238, 250.), and Maynes Hindu Law, 8th ed., par. 469; also, as to the proceedings upon escheat, to Secretary of State for India v. Kamachee. (( 1859) 7 Moo. I. A. 476.)] The act that the plaintiff accepted a fixed monthly allowance shows that he was excluded from being a co-parcener Rai Raghunath Bali v. Rai Maharaj Bali. (( 1885) L. R. 12 I. A. 112.) In any case a scheme for the management of the dedicated properties should not have been decreed. Those properties were granted to the head of the mutt, and have been managed by the successive heads for over 160 years. That there was a mutt appears from the fact that there was a separate installation of its head. The headship of a mutt is not partible Trimbak v. Lakshman (( 1895)

I. L. R. 20 B. 495, 500.); Maynes Hindu Law, 8th ed., par. 439. The inam grants of the dedicated properties were not to the father personally, but to the manager of the charities and his successors; the manager had always been the head of the mutt. The High Court relied on Nubkissen Mitter v. Hurrischunder Mitter ((1818) 2 Morley Dig. 146.), Ramanathan Chetty v. Murugappa Chetty (( 1903) I. L. R. 27 M. 192.), and Thandavaroya Pillai v. Shunmugam Pillai. (I. L. R. 32 M. 167.) Those cases are, however, distinguishable. The first related to the endowment of a family idol, but here the endowment is of a public nature. In each of the remaining cases the endowment was of a public character, but upon the death of the last sole trustee the office had devolved upon his heirs. None of the cases related to charities connected with a mutt. Here the intention of the donor as appearing from the grants and the circumstances of the case was t