The lower Courts were clearly right in holding that the suit mosque fell within the category of institutions to which section 3 of the Religious Endowments Act (XX of 1863) is applicable. It is certainly a mosque to which the provisions of Madras Regulation VII of 1817 were applicable. Mr. Chandra Reddi, the learned Advocate for the appellants urges that even if it be so there is no proof that the other condition laid down in section 3 has been satisfied in this case; namely, that the nomination of the trustee, manager or superintendent thereof, at the time of the passing of that Act was vested in, or may be exercised by, the Government or any public officer. He contends that there is no evidence to show that this right was vested in or exercised by Government or the Revenue Board or any other public Officer.

He relies on the rulings of this Court in the Tinnevelly Siva Devasthanam Committee v. Sri Ambalavana Pandara Sannadhi Avergal and another1 and Panduranga v. Nagappa2. I have also been referred to a ruling of the Full Bench in C. Thiruvengada Mudaliar v. M. Rajabathar Mudaliar3 which is however not directly on the point now before me, but the learned Chief Justice in that decision observes at page 946,

“For the purpose of appreciating the provisions of the Religious Endowments Act, 1863, it will be useful to refer first to the Madras Endowments and Escheats Regulation, 1817, which governed religious endowments in the Presidency until the passing of the Act of 1863 by the Government of India.”

Clause 12 of that Regulation is important. It provides inter alia that in those cases in which the nomination had usually rested with the Government, or with the public officer or in which no private person might be competent and entitled to make sufficient provision for the succession to the trust and management, it will be the duty of the local agents to propose for the approval and confirmation of the Board, a person or persons for the charge of trustees, manager or superintendent. Clause 13 provides that on receipt of the report the Board of Revenue shall be required to appoint the person or persons nominated for their approval, or to make such other provision for the trust, management or superintendence as might seem right and fit. To ascertain whether at the time of the passing of Act XX of 1863 the nomination of trustee, manager or superintendent in an institution was vested in or may be exercised by Government or any public officer the above provisions of clauses 12 and 13 of Regulation VII of 1817 must be borne in mind. If there is evidence that there is sufficient provision for the succession to and the devolution of the office of trustee either made by the founder or by Court or other competent authority, then undoubtedly the Board of Revenue or the local agents will not have any right in the appointment of trustee, manager or superintendent. But where it cannot be said that there are vested rights in any person to appoint the trustee, the power to appoint is by clauses 12 and 13 vested in the Board of Revenue on the recommendation of the local agents. Institutions to which these provisions would have applied before the passing of Act XX of 1863 would automatically come within the scope of section 3 of that Act. This is what was laid down in the decision Panduranga and others v. Nagappa and others1 cited by the learned advocate for the appellants. At page 369 Muthuswami Aiyar and Parker, JJ., say that:

“The true construction of section 3 is that the power of nomination or confirmation must be lawfully vested in the Government or a public officer or lawfully exercised by them, and it is, therefore, necessary to see whether the actual exercise of such power is referable to a legal origin, either to the exercise of a like power by the former Government or to the terms of the deed of endowment or to the grant of endowment made by the Government or to the power to provide a competent trustee when a religious institution h