The main legal point established in the judgment is that the powers and appointments under the Hindu Religious Endowments Act must be consistent with the provisions of the Act.

Varadachariar, J.

1. This appeal arises out of a suit under Section 63(4) of the Hindu Religious Endowments Act, impugning a scheme framed by the Board for the management of a group of mutts. Only two points have been pressed before us : (1) as to the propriety of giving the associate trustee overriding powers over the Mahant, and (2) as to the power of the Board to settle a list of properties belonging to the institution. The latter point may be briefly disposed of.

2. It does not appear from the record whether any objection was taken by or on behalf of the Mahant before the Board about the properties to be included in the list attached to the scheme of properties belonging to the mutt. We cannot agree with the contention advanced by Mr. Jagannath Doss, on behalf of the Mahant, that the Board has no power to settle such a list. Section 63 undoubtedly gives power to the Board to frame a scheme for the management of the institution and this power carries with it the power to settle what the properties of the institution are, so that the authority framing the scheme may know what properties are to be governed by the scheme and what the resources are whose disposal is to be provided for by the scheme. A question of this kind was raised before this Court in Vaithinatha Aiyar v. Thyagaraja Aiyar (1919) 41 M.L.J. 20 and the learned Judges held that in a suit under Section 92, Civil Procedure Code, asking for the framing of a scheme, the Court has the power to settle the question whether certain properties belong to the institution or not. This decision was confirmed on appeal by the Privy Council in Vaidyanatha Aiyar v. Swaminatha Aiyar (1924) 47 M.L.J. 361 : L.R. 51 IndAp 282 : I.L.R. 47 Mad. 884 (P.C.) and though the question of the Courts power was not specifically raised before their Lordships, the Judicial Committee did deal with the merits of the claim, thus clearly implying that this was within the legitimate scope of the Courts power when framing a scheme. Some observations on this question will also be found in Anjaneya Sastri v. Kothandapani Chettiar (1935) 43 L.W. 409.

3. In the lower Court an attempt was also made to prove that some of the properties included in the list attached to the scheme Ex. F are the private properties of the Mahant and do not belong to the mutt. In support of that claim, reliance was placed on the circumstance that these properties came to the present Mahant under the will of his predecessor Ex. D. As the learned Judge has pointed out, this will makes no distinction between the properties now claimed as the private properties of the Mahant and the other properties in respect of which no doubt has been raised as to the ownership of the mutt. From the few sale deeds filed in the case, it no doubt appears that some of those properties were purchased in the name of the prior Mahant; but it being admitted that he was an ascetic and celibate and the head of the institution, the probabilities are that they were purchased with the funds of the institution. At any rate, in the absence of anything to show any difference in his method of dealing with these properties as compared with the other admitted properties of the institution, the Court is entitled to draw the inference that he purchased them for the benefit of the institution. We therefore see no reason to interfere with the lower Courts decision on this point.

4. Proceeding next to the objection taken to Clauses 2 and 3 of the scheme, we think that the appellants objection to these clauses is well founded. We agree with the learned Judge that the circumstances justify the appointment of an associate trustee; but Section 63 does not contemplate that the person so added is in effect to supersede the Mahant. Clauses 2 of the scheme almost makes it clear that the new trustee is to have the management of the institution, with a vague direction that in so managing it, he may avail himself of the help and advice of the Mahant in all important matters.