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Madras High Court
K. VEERASWAMI,NATESAN,SOMASUNDARAM
K.Manathunainatha Desikar - Appellant
Versus
Sundaralingam (minor represented by his next friend M.Swaminathan) - Respondent
Decided On : 01/16/1970
[MAIN LEGAL POINT] The office of Dharmakartha of a South Indian temple is a species of property to which the restrictions laid down in Juttendra Mohan Tagore v. Ganendramohan Tagore, (1872-73) 9 Beng LR 377 : 1872 Ind App Supp Vol. 47 (PC) are applicable.
Fact of the Case:
The suit, the decree wherein in favour of the plaintiff has given rise to this appeal by the first defendant, is for a declaration that the first defendant is not entitled to be a joint trustee along with the plaintiff and defendants 2 and 3 of the temple to which the suit properties belong. The first defendant's right to be in possession of the suit properties as joint trustee is questioned and an injunction restraining the first defendant from collecting rents and profits thereof or otherwise interfering with the properties is prayed for. The suit properties - nanja, punja and jari manai of an extent of 106 acres and 33½ cents situate in the village of Mappalam in Nannilam Taluk, East Tanjore District - admittedly endowed, belong to Sri Viswalinga Vaitheeswaraswami, a deity of the Hindu Pantheon, whose temple is located at Jaffna, Ceylon. The temple was founded by one Vaithyalinga Chettiar, a remote ancestor of the parties, in or about the year 1790, and it owns extensive properties in Jaffna, besides the suit properties. The founder Vaithialinga died in or about 1828. Under his will dated 20-4-1905, of which Ex. A-l is registration copy, he prescribed a scheme for the due administration and management of the temple and its properties and charities he founded. Briefly stated the will prescribes the devolution of the right of management (office of Vicharanai Kartha) after his death, first on his two sons, Gopala Chettiar and Kandappa Chettiar for their lives, and after them upon his male descendants in the male and female lines. This will be drafted in old Tamil and the syntax is rather loose; but the intention of the testator and the terms of the foundation prescribed are manifest and not difficult of ascertainment. The provisions regarding the management of the institution are found in two places in the testament. In the first portion, properly translated, the following are enjoined to perform the trusts; sons Gopala Chettiar and Kandappa Chettiar, in their male and female line, their descendants one generation of sons to another generation as long as Venkeesa Gothram lasts. Again, at the close of the will, the provision for continuous management is indicated requiring that the sons and their descendants in the male and female lines shall manage for long without fail. The Tamil words used are : "* * *" (Extract in Tamil Script). The word "* * *" (In Tamil Script) means lineage, descent or family. Though the word "* * *" (In Tamil Script) used in the instrument can indicate both male and female children, from the testator's use of it while referring to the testator's sons Gopala Chettiar and Kandappa Chettiar and the use of the expression "* * *" and "* * *" (In Tamil Script) it is clear that the founder means by the expression male descendants and was providing for management by his male descendants.
Finding of the Court:
The office of Dharmakartha of a temple with which this case is concerned is not property in the Hindu sense of the term as to attract Tagore case, (1872-73) 9 Beng LR 377 : 1872 Ind App Supp Vol. 47 (PC).
Issues: (1) Whether the restrictions laid down in (1872-73) 9 Beng LR 377 : 1872 Ind App Supp Vol. 47 are applicable to the office of trusteeship now under consideration and (2) whether the plaintiff is barred from agitating the question in view of the prior decision.
Ratio Decidendi: (1) The office of Dharmakartha of a South Indian temple is a species of property to which the restrictions laid down in Juttendra Mohan Tagore v. Ganendramohan Tagore, (1872-73) 9 Beng LR 377 : 1872 Ind App Supp Vol. 47 (PC) are applicable. (2) The plaintiff is barred from agitating the question in view of the prior decision.
Final Decision: Appeal allowed.
NATESAN, J. :- This appeal has been placed before the Full Bench as the substantial question that calls for examination is the correctness of the view expressed by a Division Bench of this court in Manathunainatha Desikar v. Gopala, ILR 1943 Mad 858 : (AIR 1944 Mad 1) about the applicability of the rule in Juttendra Mohan Tagore v. Ganendramohan Tagore, (1872-73) 9 Beng LR 377 : 1872 Ind App Vol. P. 47 (PC) to the office of manager of a South Indian temple under a scheme of succession settled by the founder. The very scheme of succession and right to management of the properties of the temple now in question was the subject-matter of adjudication in ILR 1943 Mad 858 : (AIR 1944 Mad 1) and this aspect has given rise to a question of res judicata for consideration.
2. The suit, the decree wherein in favour of the plaintiff has given rise to this appeal by the first defendant, is for a declaration that the first defendant is not entitled to be a joint trustee along with the plaintiff and defendants 2 and 3 of the temple to which the suit properties belong. The first defendant's right to be in possession of the suit properties as joint trustee is questioned and an injunction restraining the first defendant from collecting rents and profits thereof or otherwise interfering with the properties is prayed for. The suit properties - nanja, punja and jari manai of an extent of 106 acres and 33½ cents situate in the village of Mappalam in Nannilam Taluk, East Tanjore District - admittedly endowed, belong to Sri Viswalinga Vaitheeswaraswami, a deity of the Hindu Pantheon, whose temple is located at Jaffna, Ceylon. The temple was founded by one Vaithyalinga Chettiar, a remote ancestor of the parties, in or about the year 1790, and it owns extensive properties in Jaffna, besides the suit properties. The founder Vaithialinga died in or about 1828. Under his will dated 20-4-1905, of which Ex. A-l is registration copy, he prescribed a scheme for the due administration and management of the temple and its properties and charities he founded. Briefly stated the will prescribes the devolution of the right of management (office of Vicharanai Kartha) after his death, first on his two sons, Gopala Chettiar and Kandappa Chettiar for their lives, and after them upon his male descendants in the male and female lines. This will be drafted in old Tamil and the syntax is rather loose; but the intention of the testator and the terms of the foundation prescribed are manifest and not difficult of ascertainment. The provisions regarding the management of the institution are found in two places in the testament. In the first portion, properly translated, the following are enjoined to perform the trusts; sons Gopala Chettiar and Kandappa Chettiar, in their male and female line, their descendants one generation of sons to another generation as long as Venkeesa Gothram lasts. Again, at the close of the will, the provision for continuous management is indicated requiring that the sons and their descendants in the male and female lines shall manage for long without fail. The Tamil words used are : "* * *" (Extract in Tamil Script). The word " * * *" (In Tamil Script) means lineage, descent or family. Though the word "* * *" (In Tamil Script) used in the instrument can indicate both male and female children, from the testator's use of it while referring to the testator's sons Gopala Chettiar and Kandappa Chettiar and the use of the expression "* * *" and "* *" (In Tamil Script) it is clear that the founder means by the expression male descendants and was providing for management by his male descendants. Directing that the trust shall be performed with all religious zeal and Bakthi, the testator expresses his intention that the divine grace earned in the family should be retained in the family and shared by his descendants in the male and female lines. The words "from one generation of male descendants to another" indicate that in any line the nearer would ex
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