S. Subrahmania Aiyar, Officiating C.J.
1. The plaint mentioned mutts, Bhandarkare in South Canara and Bhimasetu in Mysore Territory, are two ancient mutts presided over by Swamis or ascetic heads of the Madhwa persuasion. The case of the plaintiff--a minor--is that the two mutts are dwandva or interdependent mutts, the Swami of each being entitled to appoint to the other, in the event of the Swami of either dying without having appointed and leaving a successor, or a vacancy otherwise occurring; that; he was appointed as the head of Bhandarkare Mutt by the present Swami of Bhimasetu Mutt on the death of one Vidyasamudra, who had been ordained and appointed by the 1st defendant the deceased Swami of Bhandarkare Mutt as his junior before he (the 1st defendant) became and was, on inquisition under Act XXXV of 1858, found to be a lunatic.
2. The argument on the plaintiff's behalf in the appeal was that the 1st defendant as Swami was in the position of a trustee, that on his becoming a lunatic he ceased to be the head of the mutt and that Vidyasamudra being dead at the date of the plaintiff's appointment, that appointment by the Bhimasetu Swami constituted the plaintiff the head of Bhandarkare mutt. The contention on the other side was that there was no dwandva right as alleged, that the 1st defendant's position as Swami was void of real analogy to that of a trustee, that his lunacy did not divest him of his right to the headship, that until his death there was no vacancy and that the plaintiff therefore derived no right to the mutt by virtue of the appointment relied on by him, even granting that the Bhimasetu Swami had the power to fill up a vacancy should any such have occurred.
3. The 1st defendant having continued to be a lunatic down bo his death pending the suit, the question for determination is whether the appointment relied on by the plaintiff was made in circumstances which could confer on him the status claimed, assuming that the Bhimasetu Swami had a right to nominate as alleged--in short, whether at the date of the suit or prior to it there was a vacancy in the headship of Bhandarkare mutt.
4. Now there can be no doubt that institutions of the class under consideration were established as centres of theological learning and in order to provide a line of competent teachers with reference to the established Hindu creeds of the country. If any proof of this statement were necessary, that is furnished by the unquestionable connection which exists between some of the more important of this class of institutions and the leading exponents of the tenets of those creeds, As pointed out in Mr. Ghose's Hindu law, p. 680, no less than seven mutts, being among the most celebrated, owe their origin to the great Adwaita Philosopher Sankarachariya. Other mutts not less numerous or important following the tenets of the Vishishtadwaita system of Ramanujacharya are traceable to that teacher. The well-known eight mutts at Udipi, the centre of the Dwaita system of thought, are on all hands admitted to have been founded by Madhwacharya, the great expounder of that system. The Sudra mutts, of this Presidency, of which those at Dharmapuram and Tiruvaduthorai are the chief, represent what is known as the Saiva Siddhantam.
5. The influence exercised by mutts as centres of learning on the religious and other literature of the country cannot be denied. The varied and well-known contributions made thereto by the famous Vidyaranya Swami of the Sringeri or Sarada Mutt, or under his auspices, are among the most conspicuous examples of this kind. There is scarcely a branch of learning considered by Hindus as important, to which Vidyaranya or the scholars whom he gathered round him, did not make valuable contributions and it is to his commentaries that the modern world owes its knowledge of the traditional meaning of the oldest of sacred books--the Rig Veda. Nor has the influence of the mutts at Dharmapuram, Tiruvaduthorai, &c;, on the Dravidian literature been inconsiderable.
6. Though in recent times the men who have succeeded to the. headship of the mutts have generally been inferior, their predecessors, as a whole, were men of learning and piety, who adequately ministered to the spiritual wants of the community and even now the heads of some of these mutts enjoy the esteem of the community and continue to serve more or less the purpose intended. Such having been the origin and object of these institutions, which have embraced the whole Hindu population of the country and numbered, among their adherents and supporters, princes and noblemen, it goes without saying that the establishment of these mutts was followed by their being more or less well endowed.
7. As to the rights of the Swamis in relation to the mutts and their endowments there was on the one hand the cardinal principle of the law of the land that properties given for the maintenance of charities, religious or otherwise, were ordinarily inalienable, (West and Buhler, Hindu Law, pp. 201--202, Maharanee Shibessoori v. Modoornath 13 M.I.A. 270, Prosunno Kuntari v. Golapchund L.R., 2 IndAp 143, Narayan v. Chintaman I.L.R. 5 B. 393 and Collector of Thana v. Harisitaram I.L.R. 6 B. 546 and on the other, the fact that the Swarm's were not mere employees or subordinates in the institutions, but heads thereof, whose duty it was to promote learning and further the interests of religion; such heads moreover as ascetics not prone to be affected by motives incident to worldly life, requiring less restraint in dealing with property than ordinary men. It followed, therefore, that the law gave them over what remained of the income after defraying the established charges of the institution, a full power of disposition, while in respect of the corpus it treated the individuals composing the line of succession as in the position of tenants for life (Baboo Annada Prasad v. Nil Madheb Bose XX W.R. Cri. Rulings, p. 471, Khusalchand v. Mahadevgiri 12 B.H.C.R. 214. I think it right to add that I am unable to agree with the conclusion in Sammantha Pandara v. Sellappa Chetti I.L.R 2 M. 175 if that is to be understood as implying that a debt incurred by the head of a mutt, though proper and appropriate with reference to the head who incurred it, would bind the property of the institution in the hands of his successors even though the debt is not shown to have been incurred for a purpose necessary for the maintenance of the institution as a mutt;
8. Nevertheless it must be admitted that there is no direct authority pointing out the precise jural character of the heads of institutions of the kind referred to above. In determining what that is, it is but right and necessary to refer to the view taken by the law with reference to another set of institutions which owe their origin to the same causes that operated to bring mutts into existence. Of course, I refer to temples along with mutts, which in order that organized worship of God and spiritual knowledge might go hand in hand, the religious instinct of the people designed as places of public resort for worship and which were endowed far more richly than mutts. No doubt those that have made and still make such endowments do not look upon what the endowments are dedicated to in the light the law views them. Even with reference to donors in countries where anthropomorphic ideas of God find little place, it has been observed; 'His worshippers who gave him lands and goods regarded him, if in one sense as a supernatural person, yet in another and a very real sense, as a natural person; he was no creature of human thought, he lived and could hold property' (Pollock and Maitland's History of the English Law, Vol. I, p. 491). It is not strange, therefore, that in a country like this, where the sacred books of the people abound in personified descriptions of the Deity, His powers and attributes, the -belief of donors should be similar and even stronger, as will be seen from Doorga Prasad v. Shiva Prasad 7 C.L.R. 278 where MacDonnel and Tottenham JJ. observed: 'According to Hindu notions when an idol has once been so to speak consecrated by the appropriate ceremony being performed and mantra pronounced, the deity of which the idol is the visible symbol resides in it.' It is to give due effect to such a sentiment, widespread and deep-rooted as it has always been, with reference to something not capable of holding property as a natural person, that the laws of most countries have sanctioned the creation of a fictitious person in the matter, as is implied in the felicitous observation made in the work already cited : 'Perhaps the oldest of all juristic persons is the God, hero or the saint' (Pollock and Maitland's History of English Law, p. 481).
9. That the consecrated idol in a Hindu temple is a juridical person has been expressly laid down in Manohar Ganesh v. Lakshmiram I.L.R. 12 B. 274 which Mr. Prannath Saraswati, the author of the Tagore Lectures on endowments rightly enough speaks of as one ranking as the leading case on the subject and in which West, J., discusses the whole matter with much erudition. And in more than one case, the decision of the Judicial Committee proceeds on precisely the same footing (Maharanee Shibessouree Debia v. Mothoranath Acharjo 13 M.I.A. 270 and Prosunno Kumari Debya and Anr. v. Golab Chand Baboo L.R. 2 IndAp 145. Such ascription of legal personality to an idol must however be incomplete unless it be linked to a natural person with reference to the preservation and management of the property. Hence the treatment of idols as if they were infants perpetually and providing them with human guardians designated by various names in different parts of the country. In Prosonno Coomar Debia v. Golapchand L.R., 2 IndAp 145 the Judicial Committee observe thus; It is only in an ideal sense that property can be said to belong to an idol and the possession and management must in the nature of things be entrusted with some person as sebait or manager. It would seem to follow that the person so entrusted must of necessity be empowered to do whatever may be required for the service of the idol and for the benefit and preservation of its property at least to as great a degree as the manager of an infant heir'--words which seem to be almost an echo of what was said in relation to a church in a judgment of the days of Edward I: ' A church is always under age and is to be treated as an infant and it is not according to law that infants should be disinherited by the negligence of their guardians or be barred of an action in case they would complain of things wrongfully done by their guardians while they are under age' (Pollock and Maitland's History, Vol. I, p. 383)--a principle which it were to be wished the law held fast to in the matter of the application thereof to a greater extent than is now the case in connection with the law of limitation for suits.
10. Such being the position unequivocally taken up by the law with regard to one set of those kindred institutions, it seems but right to adopt a similar theory with reference to the other set of institutions also with only so much modification as certain special features of the latter necessarily call for. In the case of temples the ideal person being the idol itself, the natural custodian of the property, who has no beneficial interest whatsover in the endowments, but occupies the fiduciary position of a mere manager, (Juggadamba Dossee v. Puddomoney Dassee 15 B.L.R. 318 may not improperly be looked upon as subject strictly to the liabilities of a trustee. In the case of the mutts, however, though there are idols connected therewith, the worship of such is quite a secondary matter, the principal purpose of such an institution being the maintenance in circumstances likely to command due respect and estimation a line of competent religious teachers, who as already shown are given for the welfare of the foundation itself a real and so to speak beneficial interest in the usufruct, the restrictions governing the disposition whereof by them being of the nature of a mere moral obligation. Having regard to these facts it is obvious that the correct view to be taken is that in the case of mutts the ideal person is the office of the spiritual teacher Acharya, which, as it were, is incarnate in the person of each successive Swami who for the time is a real owner and not a mere trustee.
11. He is, as he would be described in England, a corporation sole. The circumstance that some controversy hang, round this phrase of the English law need not deter one from applying to cases like the present the concept which underlies it; the objection is but to the name (Wooddeson's Vinerian Lectures on the Laws of England, p. 471), while the concept itself is not peculiar to that system of Law, (Lord Mackenzie's Roman Law, VII Edn., p. 163) and is, as Mr. Salmond rightly observes, (Jurisprudence, p. 437 note) perfectly logical and capable of serious and I profitable uses, as shewn by the fact that modern legislation has in effect created similar legal persons with reference to certain public offices. The following observation of the learned author just referred to (Jurisprudence, p. 349), may be quoted as serving to clear up the source of error and confusion in regard to this particular kind of legal personality. 'The chief difficulty,' he says, ' in apprehending the true nature of a corporation sole is that it bears the same name as the natural person who is its sole member for the time being and who represents it and acts for it. Each of them is the sovereign, or the bishop or the solicitor to the treasury. Nevertheless under each of these names two persons live, one is a human being administering for the time being the duties and affairs of the office. He alone is visible to the eyes of laymen. The other is a mythical being whom only lawyers know of and whom only the eye of the law can perceive. He is the true occupant of the office. He never dies or retires; the other; the person of flesh and blood, is merely his agent and representative through whom he performs his functions, The living official comes and goes, but this offspring of the law remains the same person.' And it seems to me the concept thus well explained is the one best adapted to carry out the objects and purposes of institutions of the character of these mutts.
12. This being my view as to the real and precise jural character of the head of a mutt of the kind under consideration, I must hold that the 1st defendant did not forfeit his position as a head of the mutt by the mere fact of his lunacy, in the absence of any satisfactory evidence of custom with reference to this particular mutt--a point on which I am in entire agreement with the Subordinate Judge, considering that what evidence there is on the question points altogether against the existence of any such custom.
13. It is scarcely necessary to say that under the Hindu Law itself, lunacy does not operate to divest rights already acquired; and the analogy, so far as this question of lunacy is concerned, presented by the cases of a bishop and of a beneficed clergyman in England is distinctly in favour of the conclusion arrived at by me. As in them so here, lunacy could only result in the lunatic's power of action remaining suspended during the continuance of the distemper and the vicarious discharge of his functions being provided for in accordance with the established requirements of the institution (cf. Burn's Ecclesiastical Law, Vol. I), p. 306, Title Co-Adjutor and Pope on Lunacy, 2nd Ed., pp. 370--371--a matter to which, as the evidence shows, due attention appears to have been paid by the committee appointed to take charge of the estate of the 1st defendant when the inquisition was found.
14. It is thus clear that neither on the date of the plaintiff's appointment as alleged by him, nor at the date of his suit, was there a vacancy in the headship of the mutt to be filled up by whomsoever such filling up may have had to be done. The appointment relied on by the plaintiff could not therefore be held to have conferred on him any right to the mutt, assuming the existence of the dwandva right, as to which, however, it is not in the circumstances necessary to give any opinion.
15. I would therefore dismiss the appeal with costs (one set).
Bhasyam Aiyangar, J.
16. The plaintiff (appellant), a minor, sues for a declaration that he has been duly ordained and appointed swami or head of the Bhandarkare mutt by the swami of the Bhimasetu mutt, for recovery of possession of the mutt with all its properties and endowments, from the 2nd defendant and for recovery from the 3rd defendant of some of the mutt idols and jewels in his possession. The plaint mutt, which is endowed with the landed property standing in the name of the presiding deity and an annual tasdik allowance from Government, is situate about ten miles from Udipi, the centre of Madhwa religion and is one of a number of ancient mutts in that part of the country; the Bhimasetu (or Bhimanakatte) mutt (about 54 miles from Udipi) situate in the present Mysore Province is another of them. The plaint mutt was till lately presided over by the 1st defendant who admittedly had been duly appointed to the office by his predecessor. On the 24th June 1896, the 1st defendant was, on inquisition, found a lunatic by the District Judge of South Canara under Act XXXV of 1858. Some time prior to his lunacy he hadselected and ordained his brother's son Vidyasamudra, his disciple and successor; and it is admitted that the said. Vidyasamudra, a minor of about 15 or 16 years of age, continued to perform the worship of the deities of the mutt after the lunacy of his preceptor. The disciple, however, died on the 9th October 1898 and the head of the Bhimasetu mutt, claiming that the two are dwandva mutts, purported to ordain and appoint the plaintiff as swami of the plaint mutt on the 23rd November 1898. It is not clear from the plaint whether the plaintiff's appointment was as successor to the 1st defendant or to the deceased young swami (the disciple of the 1st defendant). The Bhimasetu swami, however, as the plaintiff's 20th witness, declared that he appointed the plaintiff to succeed both, the 1st defendant and his disciple. The position taken by the plaintiff apparently is that the 1st defendant by reason of his lunacy vacated his office, that thereupon he was succeeded by his disciple swami Vidyasamudra, that on the death of the latter without nominating a successor, the office of head of the mutt became vacant and that the Bhimanakatte swami, by reason of the two mutts being dwandva mutts, was entitled to appoint him successor. In this view it is contended that the appointment of the 2nd defendant, under Section 9 of Act XXXV of 1858, as ' manager' of the estate of the 1st defend ant will be inoperative so far as the mutt and its properties are concerned--as these properties were held by the 1st defendant merely as trustee--though his appointment under Section 10 of the Act as the ' guardian' of the person of the lunatic will hold good.
17. On the first of these points, the Subordinate Judge finds that the plaintiff has entirely failed to establish that the head of the mutt forfeits or vacates his office by reason of his becoming a lunatic. He further finds that there exist no dwandva rights between the plaint mutt and the Bhimanakatte mutt and that the plaintiff's appointment was therefore invalid even if there was a vacancy of the headship of the plaint mutt. On those findings he has dismissed the plaintiff's suit; and the principal contentions raised in appeal are that the office has become vacant by reason of the 1st defendant's lunacy or that at any rate, in accordance with the principles of the law applicable to trustees, the appointment of the plaintiff as a new trustee or head of the mutt in place of the 1st defendant who has become lunatic is legal and valid and that the plaintiff has established the existence of dwandva rights between the plaint mutt and the Bhimanakatte mutt.
18. In the view which 1 take of the case, it is unnecessary to consider and decide whether the. plaint mutt and the Bhimanakatte mutt are dwandva mutts. Having regard, however, to the fact that the 1st defendant died since the institution of this suit and thus a vacancy has in any view occurred, I should have preferred to decide this question also, if our decision thereon could bind all parties concerned. But I refrain from doing so--though the point was argued before us at considerable length--as any decision that we may come to on the point, in the present suit, will not bind the Bhimanakatto mutt, the head of which is no party to this suit, nor the Paryaya swami, for the time being, of the Udipi Srikrishna temple on whose behalf a right of nomination is set up, though he is no party to the suit and who, in fact, has, on the death of the 1st defendant, subsequent to this appeal, ordained and appointed a person as successor who for the purposes of this appeal, has been joined as the (8th respondent and) legal representative of the 1st defendant.
18. On the other question argued before us, I am clearly of opinion that the Subordinate Judge has come to a right conclusion in holding that the 1st defendant has not vacated his office by reason of his lunacy. His conclusion is fully supported not only by the evidence of the defendant's witnesses--some of whom are the heads of some of the Udipi mutts--but also by the evidence of several of the plaintiff's witnesses--among whom also there are the heads of some others of the Udipi mutts. An instance is also referred to, by the defendant's loth witness, of a swami of the Puttige mutt having been a lunatic for a time--during which his disciple performed the puja--and having resumed his office on recovery. In the present case too, the Subordinate Judge finds that the 1st defendant himself was on a former occasion a lunatic for about a year and then recovered for a short time and that even after he had been adjudged a lunatic in ]896, he has had lucid intervals. The evidence in the case as to the effect of lunacy is also in consonance with the principle of the Hindu Law that insanity does not divest a person of rights and estates that have already vested in him. The Subordinate Judge has therefore rightly held that the disciple Vidyasamudra never became the head of the mutt or succeeded the 1st defendant, that in fact he was never installed in the Gadhi on the declaration of 1st defendant's lunacy and that the mere fact of the disciple worshipping the mutt deities during his guru's insanity does not amount to his installation, as it is shown by the evidence on both sides that any other swami also might on such occasions perform the puja.
19. I may add that the attempt made on behalf of the plaintiff to establish that the 1st defendant has also forfeited his office by reason of his immorality has entirely failed as the 1st defendant has not, for any such cause, been outcasted or excommunicated--as was once done in the case of the Puttige swami (vide Ap. No. 66 of 1881)--in which case the head of the mutt can be properly deposed from his position.
20. No usage or custom having been proved regulating the procedure consequent on the lunacy of the head of a mutt, the important (Question to be decided is ' What is the effect of it, under the general law as regards his relation to the mutt and its endowment? On behalf of the appellant it is urged by the learned Advocate-General, that the head of a mutt is a trustee or at any rate his position is analogous to that of a trustee and that on the analogy of the English Law of Trusts--which is compendiously reproduced in Sections 73 and 74 of the Indian Trusts Act--it should be held that a new head of the mutt may be appointed in his place, by the person, if any, entitled to do so or by the Court, if the former head, by reason of his lunacy, becomes personally incapable to act in the trust.
21. If the head of the mutt, was a trustee and the trusts of the institution were of the class to which the general law of trust relates, this argument will no doubt carry weight; and in a case, like the present, in which the head of the mutt has been on inquisition found a lunatic by the District Court, which is the 'Principal Civil Court of Original Jurisdiction' referred to in Section 73 of the Indian Trusts Act--the person, if any, entitled to appoint a new head need not make any special application to such Court for an adjudication that the head of the mutt is, by reason of his lunacy, personally incapable of acting in the Trust, but may without such application appoint a duly qualified person as head of the mutt in the place of the lunatic. The fact that a manager of the lunatic's estate has, in this case, been appointed under Section 9 of Act XXXV of 1858, will make no difference (cf. Lewin on Trusts, 10th Edition, p. 8204; Pope on Lunacy, pp. 280 to 290); for the estate of the lunatic, whether the same be a trust estate or his own, will still continue vested in him and the manager can only manage the estate of the lunatic, but not execute the trust which involves the exercise of discretion. The appointment of the 2nd defendant, in this case, as guardian of the person and manager of the estate of the 1st defendant (vide Bitarama Charya v. Kesava Charyay I.L.R. 21 M. 402 will be no impediment to the plaintiff's appointment as trustee and head of the plaint mutt, if the nomination of its head in cases of vacancy rested, according to usage and custom, with the head of the Bhimasettu Mutt.
22. I am, however, of opinion that the head of a mutt, as such, is not a trustee in the sense in which that term is generally understood in the Law of Trusts and the. decision of the question under consideration cannot therefore properly be governed by the principles regulating the appointment of new trustees or by analogies derived therefrom. I may also add that in the case of hereditary trustees in India and other trustees having a beneficial interest in the trust property, the principles of the English Law of Trust--embodied in the Indian Trusts Act--as to the appointment of new trustees, when a trustee becomes incapable of acting by reason of unsoundness of mind, &c;, are inapplicable. So far, at any rate, as mahunts and heads of mutts are concerned, the real analogy is in my opinion to be derived from the law relating to Common Law 'Corporations,' particularly 'Ecclesiastical Corporations Sole', for in many respects there is a striking similarity between these English Ecclesiastical Corporations and the ancient and well-established mutts in India like the plaint mutt. I am unable to accede to the learned Advocate-General's contention that the idea of a corporation is an advanced conception of jurisprudence unknown to the Hindu Law. Without implying that ' Trusts' in the ordinary sense are unknown or foreign to Hindu Law (see the Tagore Case) L.R.IndAp Supp. 71, I should say that the notion of a corporate body as a legal entity is clearly recognized and is decidedly more in conformity with the genius of the Hindu Law than the conception of 'Trusts' (Webb v. Macpherson VIII, C.W.N., p. 41 at p. 47, recently decided by the Privy Council). In Manohar Ganesh Tambehar v. Lakhmiram Govindram I.L.R. 12 B. 247, Sir Raymond West, a profound jurist and eminent Hindu lawyer, observed (at pp. 263, 264) ' that the Hindu Law, like the Koman Law and those derived from it, recognises not only corporate bodies with rights of property vested in the corporation apart from its individual members, but also the juridical persons or subjects called foundations. A Hindu who wishes to establish a religious or charitable institution may, according to his law, express his purpose and endow it and the ruler will give effect to the bounty or at least protect it so far at any rate as it is consistent with his own dharma or conceptions of morality. A trust is not required for this purpose; the necessity of a trust in such a case is indeed a peculiarity and a modern peculiarity of the English Law. In early times, a gift placed, as it was expressed, ' on the altar of god3 sufficed to convey to the church the lands thus dedicated. Under the Roman Law of pre-Christian ages, such dedications were allowed only to specified national deities. After Christianity had become the religion of the Empire, dedications to particular churches or for the foundation of churches and of religious and charitable institutions were much encouraged. The officials of the church were empowered specially to watch over the administration of funds and estates thus dedicated to pious uses, but the immediate beneficiary was conceived as a personified realization of the church, hospital or fund for ransoming prisoners from captivity. Such a practical realism is not confined to the sphere of law; it is made use of even by merchants in their accounts and by furnishing an ideal centre for an institution, to which the necessary human attributes are ascribed (Dhadphale v. Gurave I.L.R. 6 B. 122, it makes the application of the ordinary rules of law easy, as in the case of an infant or a lunatic. Property dedicated to a pious purpose is by the Hindu as by the Roman Law placed extra commercium; with similar practical savings as to sales of superfluous articles for the payment of debts and plainly necessary purposes. Mr. Macpherson admitted for the defendants in this case that they could not sell the lands bestowed on the idol Sri Ranchhod Raiji. This restriction is like the one by which the Emperor forbade the alienation of dedicated lands under any circumstances. It is consistent with the grants having been made to the juridical person symbolized or personified in the idol at Dakor'. Dealing with the same subject, the learned authors of the Digest of Hindu Law W. & B.H.L. 201 remark: ' The idol, deity or the religious object is looked on as a kind of human entity and the successive officiators in worship as a corporation with rights of enjoyment, but not generally of partition or alienation, except so far as this may be necessary to prevent greater injury. Such endowments are frequently founded by subscriptions and are augmented by gifts and bequests simply to the institution. No rules have, in a majority of these cases, been formally prescribed. The intention of the founders has to bo gathered from the traditional practice and the succession is thus determined by the custom of each particular institution though this may have become embraced in some more extensive custom. And as to the management of an endowment, it is not competent for the holders in fine generation to impose rules on those of another. The endowment once made cannot be resumed, but performance of the duties may be enforced '. Again (at pp. 185, 186, footnote) ' The ideal personality of the idol is recognized in many cases. Under the Kouian Law, the res sacra;, in the higher sense, were dedicated to the public divinities and this dedication required the concurrence of the public authority * * * * * *. The sense of the dominant interest of the sovereign makes itself manifest, even amongst the pious Hindus, in Narada's rule that ' whoever gives his property away (i.e., makes a, religious dedication, as gifts for merely secular purposes were discountenanced) must have a special permission to do so, from the King. This is an eternal law' (Narada, Transl., page 115. See also, Vyav. May, ch. IV, Section VII, para, 23). * * * * * * * * No legal restriction has been placed on the dedication of property to either public or private religious purposes * * * * * *. The inalienable character of land consecrated to religious purposes has been generally recognized, under the Roman, Christian and Muhammad an systems as well as by the Hindu Law and under all has sometimes been found as an embarrassment'.
23. In Maharanee Shibessouri Debia v. Modooranath 13 M.I.A. 270, in which it was held that lands dedicated to the services of an idol cannot be alienated by a shebait, though he can create derivative tenures and estates conformable to usage (of. Proviso 2 to Section 11 of the Madras Rent Recovery Act, VIII of 1865), their Lordships of the Privy Council virtually base their decision on the theory of the idol being a juristic person and they observe (at p. 278) ' that the rents constituted therefore, in legal contemplation, its property. The shebait had not the legal property, bat only the title of manager of a religious endowment.' Again in Prosunno Kumari v. Golabchand L.R. 2 1.A. 146, in which it was held that shebaits who succeed one another form a continuing representation of the debidter property, that though such property is generally inalienable, yet it is competent for the shebait to incur debts for the proper expenses of keeping up the religious worship, repairing the temple, &c; and that Judgments obtained against a shebait in respect of such debts are binding upon succeeding shebaits, though the decrees could be executed only against the (current) rents and profits of the debutter property, Sir Montague Smith, in delivering the Judgment of the Judicial Committee, referred to the idol as the owner of the property in an ' ideal sense', though in the nature of things, its possession and management must be entrusted to some person as shebait or manager. In Jugadamba Dosse v. Poddomonc Dosse 15 B.L.R. 318 the High Court of Calcutta observed (at page330) 'the ownership of the debutter property is vested in the idols, the shebaits being, sbrictly speaking, not trustees for the idol, but managers'. In Narayan v. Chintaman I.L.R. 5 B. 393 and the Collector of Thana v. Hari Sitaram I.L.R. 6 B. 546 it was held on the authority of the decision of the Privy Council in Prosunno Kumari v. Golabchand L.R. 21. A. 145 above referred to, that religious endowments in this country whether Hindu or Mohamedan are not alienable, though the annual revenues of such endowments, as distinguished from the corpus, may be pledged for purposes essential to the institution endowed.
24. The religious foundations known as debutter, devastanams or temples are the most numerous in India and have the largest endowments, especially in the shape of lands, assignment of public revenue and jewellery. These institutions have been established for the spiritual benefit of the Hindu community in general or for that of particular sects or Sections thereof. The management of these institutions is vested in one or more persons variously known in this Presidency as dharmakartas, panchayets, uralans, &c;, but referred to in the Religious Endowments Act (XX of 1863) and in judicial decisions as trustees, managers or superintendents. Their office is either hereditary or for life and as a general rule they have no beneficial interest in the endowments or their income. As already stated, the worshippers are beneficiaries only in a spiritual sense and the endowments themselves are primarily intended for spiritual purposes, though indirectly and incidentally a good number of people derive material or pecuniary benefit therefrom as office holders, servants or objects of charity. In the decisions above referred to at length, the presiding idol is treated as a juristic person in whom the properties constituting the endowments are vested. The question has not been suggested or considered, whether the community itself for whose spiritual benefit the institution was founded and endowed may not more appropriately be regarded as a corporate body forming the juristic person in whom the properties of the institution are vested and who act through one or more of the natural persons forming the corporate body,--these latter being the dharmakartas or panchayets, &c;, charged with the execution of the trusts of the institution and possessing strictly limited powers of alienation of the endowments, as defined in the cases cited above. Though a fluctuating and uncertain body of men cannot claim a profit a prendre in alieno solo, nor be the grantee of any kind of real property (see Goodman v. Mayor of Saltash L.R. 7 A.C. 633, yet there is high authority for treating such a community as a corporation of juristic persons in relation to religious foundations and endowments. Dealing with the history of Church Endowments, Savigny says :--('Jural Relatious' translated by Rattigan, pp. 196--198). 'Since then, under the Government of Christian princes, Church Institutions appeared as juristical persons, what is the precise point to which we have here to ascribe the personality, or how are we to form an accurate conception of the subject-matter of the Rights of Property existing in them? Above all, the following contrast to the earlier period is here unmistakeable. The ancient gods were conceived as individual 'Persons' resembling individual visible men that one sees around one and nothing was more natural than that each of them should have his own personal property, while it was only a further development of the same thought when the God who was venerated in a particular temple was represented as a Juristical Person and indeed even granted personal privileges. The Christian Church on the other hand rests on the belief in One God and it is united together by this common belief and by the distinct revelation of that one God to one Church. It was an easy matter therefore to import the same principle of unity also into Property-relations and this conception in fact finds expression in wholly different periods of time, as well in the teachings of writers as in the sentiments and mode of expression of the individual Founders of Endowments. Thus it happened quite commonly that at times Jesus Christ, at other times the Universal Christian Church, or her visible head, the Pope, was designated as the Proprietor of the Church Estate. But a closer consideration must lead to the conviction that this conception is wholly inapplicable to the necessarily restricted province of law and that the recognition of individual juristical persons even with reference to Church Property must be substituted for it * * * * * *. The subject of the succession (where a testator leaves property to a church) is therefore a particular Church Community, that is to say, the corporation of Christians appertaining to that church. . These writers uniformly recognize the particular Church Community as the possessor of the church property, for instance, therefore, in regard to Parochial Estates, the Totality of the Parishioners.' (See also Pollock and Maitland, History of the English Law, Vol. I, p. 4804). For all practical purposes, however, it is immaterial whether the presiding idol or the community of worshippers is regarded as the corporation or juristic person in whom the properties are vested, though from juristic point of view there may be a difference of opinion as to which theory is the more scientific, in the words of a recent writer on Jurisprudence (Salmond's Jurisprudence (1902), p. 346) ' the choice of the corpus into which the law shall breathe the breath of a fictitious personality is a matter of form rather than of substance, of lucid and compendious expression rather than of legal principle,' though, as pointed out by the same writer, the tendency of English law is to prefer the process of ' incorporation' (of human beings) to that of ' personification ' (of objects, e.g., a charity, or of institutions, e.g., a church, &c;).
25. Next to these temples and devastanams, the most important religious foundations in this country are the ancient mutts presided over almost invariably by learned and pious ascetics. The origin and growth of these mutts is described in the Judgments of this Court in Sammantha Pandara v. Sellappa Setti I.L.R. 2 M. 175 and Giyana Sambandha Pandara. Sannadhi v. Kandasami Tambiran I.L.R. 10 M. 375 and in the recent work of Mr. Ghose on Hindu Law (Ch. VIII). As stated already, there is a considerable similarity between these mutts and ecclesiastical corporations in Europe, in respect of their origin, growth and object. Speaking of the early history of bishops in Europe, Cripps, in his ' Law of the Church and Clergy' (3rd Edition, at page 74) observes: 'For many centuries after the Christian era the bishop was the universal incumbent of his diocese and received all the profits, which were then but offerings of devotion, out of which he paid the salaries of such as officiated under him as deacons and curates in places appointed. Afterwards when churches became founded and endowed he sent out his clergy to reside and to officiate in those churches, reserving to himself a certain number in his cathedral to counsel and assist him.' The origin and growth of mutts in this country is thus described in the two Judgments of this Court already referred to : ' A preceptor of religious doctrine gathers around him a number of disciples whom he initiates into the particular mysteries of the order and instructs in its religious tenets. Such of these disciples as intend to become religious teachers renounce their connection with the family and all claims to the family wealth and as it were, affiliate themselves to the spiritual teacher whose school they have entered. Pious persons endow the school with property which is vested in the preceptor for the time being and a home for the school is erected and mattam constituted, Sammantha Pandara v. Sellappa Chetti I.L.R. 2 M. 175. The ascetics who presided over them were held owing to their position as religious preceptors and often also in consequence of their own learning and piety, in great reverence, by Hindu princes and noblemen who from time to time made large presents to them and endowed the mutts under their control with grants of land. Thus a class of endowed mutts came into existence, in the nature of monastic institutions presided over by ascetics or sannyasis who had renounced the world.' The object of these mutts is generally the promotion of religious knowledge, the imparting of spiritual instruction to the disciples and followers of the mutt and ' the maintenance and strengthening of the doctrines and tenets of particular schools of philosophy. These institutions have thus exercised considerable influence over the laymen in their neighbourhood, becoming centres of classical and religious learning.' The two classes of institutions, viz., temples and mutts, are thus supplementary in the Hindu Ecclesiastical system, both conducing to spiritual welfare, the one by affording opportunities for prayer and worship, the other by facilitating spiritual instruction and the acquisition of religious knowledge--the presiding element being the deity or idol in the one, the learned and pious ascetic in the other. The position of the head of the mutt is thus not the same as or analogous to that of managers or dharmakartas of devastanams and temples, but resembles more that of Bishops and Archbishops in the Christian System of Europe. In the case of temples, the endowments whether in the shape of landed property or tasdik allowances have to be devoted to the carrying out of the specific purposes connected with the temple, i.e., the daily worship and the periodical ceremonies and festival--purposes defined and settled by usage and custom and generally recorded in what is known as the 'dittam'--and the dharmakartas are mere trustees for the carrying out or executing of such trusts. In the case of mutts, however, such defined and specific purposes immediately connected with the maintenance of the mutt as an institution, are, in the nature of things, very limited and a large part of the income derived from the endowments of the mutt as well as from the money-offerings of its disciples and followers--which offerings as a rule are very considerable--is at the disposal of the head of the mutt for the time being, which he is expected to spend, at his will and pleasure, on objects of religious charity and in the encouragement and promotion of ?religious learning. His obligation to devote the surplus income to such religous and charitable objects is one in the nature only of an imperfect or moral obligation resting in his conscience and regulated only by the force of public opinion and he is in no way, whether as a. trustee or otherwise, accountable for it in law. A corporation, however, like any natural person can act as a trustee (Lewin on Trusts, 10th Edition, p. 30); Kent's Commentaries, Vol. 2, p. 280) and it is not uncommon that a mahunt or head of a mutt, as a corporation sole, is appointed as a trustee, manager or superintendent of important temples, devastanams and katalais and in that capacity, he is accountable and responsible, like any other trustee, manager or superintendent of such religious institutions. In legal contemplation, therefore, the head of a mutt, as such, has an estate for life in its permanent endowments and an absolute property in the income derived from the offerings of his followers, subject only to the burden of maintaining the institution. Over the corpus of the endowment, however, his power of disposition is very limited as in the case of managers of temples and devastanams. He cannot alienate or charge the corpus or the income beyond his own life-time, so as to bind the mutt and his successors, except for purposes plainly necessary for the maintenance of the mutt. It should however be borne in mind that such necessity can arise but rarely in the case of mutts and at any rate not to the extent to, which it may, in the case of temples. And except under such circumstance, an alienation of the corpus or a charge thereon made by him and debts incurred by him will not bind the mutt or his successors, merely because the same was made or incurred for general religious and charitable purposes appropriate to an ascetic or the head of a mutt. If the decision of this Court in Sammantha Pandara v. Sellappa Chetti I.L.R. 2 M. 175 is to be taken as a ruling that a debt incurred by the head of a mutt is binding upon his successor, because it was incurred for such purposes though it was not plainly necessary for the maintenance of the mutt as such, I am with all deference unable to concur in it.
26. It will thus be seen that the property of the mutt is, like the benefice of a bishopric of the Christian church, substantiall yinalienable; the head of the mutt for the time being, has, like the bishop (vide, Stephen's Comm., Vol. 2, p. 765; Wall v. Nixon S.R.B. 725, Encycl. of the Laws of Eng., Vol. IV, tit. ' Ecclesiastical Corporations'): subject however to the limited burden of maintaining the mutt, absolute dominion over the revenues accruing during his lifetime. Thus in Knight v. Mosely Ambler Hardwicke speaking of the estate of a parson--which is even more analogous to that of the head of a mutt in India--said that he has a fee simple qualified and under restrictions in right of the church, but he cannot do everything that a private owner of an inheritance can.' To the same effect, but speaking more generally of all ecclesiastical corporations sole, Jessel M.R. in Mulliner v. Midland Railway Company L.R. 11 Ch. 632. said: 'As regards ecclesiastical corporations sole, it was long since decided as to rectors, vicars and others that though in a certain sense owners in fee simple, yet in many respects they had only the powers of tenants for life. Of course no owner in the fee simple can actually enjoy beyond his life and therefore to that extent, they were no better and no worse off than other owners in fee simple. But it was said that being seized in right of their churches, they had not the ordinary powers of other proprietors in fee simple * * * * * and they were not allowed to use their property in the same way as ordinary owners of land.' The Master of the Rolls then points out that ' such restricted ownership and restricted rights' are nothing ' new or remarkable,' and by way of further illustration refers to charity corporations and municipal corporations. The head of the mutt being an ascetic, there are no rights of inheritance between him and his blood-relations and the unexpended portion of the revenues devolves, according to custom, on the succeeding head of the mutt, along with the corpus of the mutt property. In this respect the case of the bishop is different, as the properties belonging to him personally--including his savings from the revenues of the benefice--devolve upon his legal representatives or heirs, as the case may be and not upon his successor in office. As regards succession, it is regulated in the case of mutts by the custom or usage of each particular mutt, but in most cases, especially in Southern India, the successor is ordained and appointed by the head of the mutt during his own life-time and in default of such appointment, the nomination may rest with the head of some kindred institution or the successor may be appointed by election by the disciples and followers of the mutt or in the last instance by the Court as representing the sovereign. But whatever differences of detail there may be between the head of a mutt in India and a bishop or other similar ecclesiastical person in Europe, there is a striking similarity between the two in respect of the corporate character of the office and the beneficial enjoyment of the income by the incumbent and in my opinion therefore the head of a mutt is as much a 'corporation sole', as a bishop admittedly is, each being equally with the other ' a body politic having perpetual succession and being constituted in a single person, who in right of some office or function, has a capacity to take, purchase, hold and demise (and in some particular instances, under qualifications and restrictions, power to alien) lands, tenements and hereditaments, to him and his successors in such office for ever, the succession being perpetual but not always uninterruptedly continuous'. (Grant on Corporations, p. 625; see also Kent's Commentaries, Vol. 2, p. 274). As in the case of a bishopric, perpetual succession in a mutt is secured by the provision for nomination of a successor (whether by the head of the mutt or otherwise) and by the restriction against alienation--though owing to delay in the nomination of a successor, in cases in which the deceased head of the mutt, has failed to ordain and nominate a successor, there may occasionally be periods of interregnum or vacancy during which there is none in existence in whom the corporation resides and is visibly represented (see Challis, Real Property, 2nd Edition, p. 91).
27. The continuity in the designation of the head of the mutt (though in some cases, with a slight variation to identify the natural person) and the use of a corporate seal are other indicia of the corporate character of the institution (cf. a notable instance of an ecclesiastical corporation sole, in S.A. No. 388 of ] 902* quite recently disposed of, being the spiritual office of ' Veda Vrithi' in a village, endowed with a small Inam, the advowson or the right of presentation to the office belonging to the Brahmin community of the village).
28. Far from being foreign to the Hindu Law, the conception of a ' corporation' was worked out not only in respect of religious foundations and establishments and eleemosynary institutions, but also in respect of lay institutions and offices. The King in India was as much a corporation sole as the King in England and many subordinate chiefs of principalities and feudatories which were in the nature of a Raj, were also, by custom, prescription and sometimes even by charter, 'corporation sole' in analogy to the King, though the chiefs themselves were not really invested with sovereign authority. Several ancient zemindaris, both here and in the north,--which were in the nature of a Raj or principality--and the ancient ' stanoms' of Malabar, really fall under this category. In two learned articles in the Law Quarterly Review (Vol. XVI, p. 335 and Vol. XVII, p. 131), Professor Maitland has made an attempt to criticise the ' concept' of a ' corporation sole,' and especially as regards the Crown, he suggests that the King is properly not a 'corporation sole,' but ' the head of a highly complex and highly organised corporation aggregate of many', he and his subjects together forming the corporation. Referring to these articles, Mr. Salmond in his 'Jurisprudence' (Edition of 1902, p. 347 footnote) points|out that ' corporations sole are not a peculiarity of English Law', that ' the distinction between the two forms of incorporation (viz., aggregate and sole) is well known to foreign jurists' and that the conception of a corporation sole ' is perfectly logical and capable of serious and profitable uses'. Whichever may be the more correct theory as regards the Crown--and even as to this, the same learned writer explains (p. 363) that under a monarchical system of Government, where ' everything which is public in fact in conceived as royal by the law, there is no need or place for incorporate commonwealth, res publica or universitas regni' and ' the citizens of the State are not fellow-members (with the King) of one body politic and corporate, but fellow-subjects of one sovereign-lord' who is a corporation sole. Whichever may be the more correct theory as regards the Crown, it is undoubted that the holders of several public offices have been constituted corporations sole, by recent statutes and described as such (vide Pollock on Contracts, 7th Edition, at p. 116; XVII, Law Quarterly Review (1901), pp. 144 to 146. For an instance, in India, see Section 6 of the Charitable Endowments Act, VI of 1890). In a similar way a corporate character also formerly belonged to several important public offices in India, especially military and police, notably poligars. Except in the case of the ' stanoms' of Malabar,--which still preserve their original corporate character, the stanis still being corporations sole--the corporate character of ancient zemindars and poligars, has, by a long course of judicial decisions, been destroyed and an anomalous law of impartibility and of descent to a single heir based unscientifically on family custom sabstitutad therefor, with the result that an issue is raised in each case as to whether the zemindari or poliem is partible or impartible--an issue altogether alien to and unmeaning in respect of a corporation,--the bonus being thrown on the party affirming its impartibility. The incident of inalienability attaching to the corporate character has suffered still more. In the earlier decisions ending with the case of Chintulapati Chinna Simhadri Raj v. The Zumindar of Vizianagaram 2 M.H.C.R. 128 the principle that a Zemindar had only an estate for life was generally recognised and acted upon. In the case last mentioned, Holloway, J., said : ' The ratio decidendi of all the cases down to the two latest 1 H.C.R. 148 clearly is that the zemindar has really an estate analogous to an estate tail as it originally stood upon the statute D6 Donis. He is the owner, but can neither encumber nor alienate beyond the period of his own life. If he had sold, the sale would be inoperative beyond his life and would amount merely to an alienation of his life interest. It was most unfortunate that the estate of an ancient zemindar in India should have been likened by that eminent* Judge to an estate tail under the English Law, as it stood under the statute De Donis instead of to the estate of a natural person constituting with his predecessors and successors, a corporation sole. The result has been that the theory of an estate for life had to be gradually abandoned as the same was not based on any intelligible or sound legal basis. Until the decision of the Privy Council in Rani Sartaj Kuari's case I.L.R. 10 A.p. 272. the trend of judicial decisions in India was to apply to alienations made by the holder of an impartible zemindari, the principles of the Mitakshara Law applicable to alienation of ordinary partible property. If the zemindar had no coparceners who if the property were partible would be entitled to a share, it was held that the zemindar could at his will and pleasure alienate the whole or any part of the zemindari, whether by act inter vivos or by will notwithstanding that the zemindari was an ancestral one. Where however the zemindar had such coparceners he was regarded as occupying the position of managing member of an undivided Hindu family and his alienations were upheld only if they were within the powers of such managing member. Since the decision of the Privy Council in Girdhare Lall v. Kantoo Lall 14 B.L.R. 187, even the doctrine of the pious obligation of the son to discharge the debts of his father, if they were not illegal or immoral, has been extended to the holders of impartible. zemindaris. The restriction of the alienation of an impartible zemindari having been falsely based on the Mitakshara doctrine applicable to joint family property owned by all the coparceners the result was that when the question was raised before the Judicial Committee in Sartaj Kuari's case, it was decided that the Mitakshara doctrine was inapplicable, the Coparceners not being joint owners with the zemindar and that the zemindar therefore could as sole owner, alienate zemindari or any portion thereof at his will and pleasure. If the succession of a single heir by a rule of promigeniture or the selection of the most competent among the heirs to succeed to the zemindari or poliem--subject in either case, to confirmation by the ruling power, the property of a corporation not being, in law, an estate of inheritance--and the incident of inalienability had both been based on what I consider was the sound jural basis, viz., that the zemindar or poligar was a civil corporation sole, charged (even now) with quasi-public duties (vide the Judgment of Judicial Committee in the Madras Railway Company v. Zemindar of Kavaitnagar 14 B.L.R. 209 and that each natural person who for the time being was zemindar or poligar, had, as in the case of ecclesiastical corporations, only a life estate in the zemindari with a very restricted power of alienation for necessary purposes, but with absolute beneficial enjoyment of the revenues, subject only to the burden of maintaining or making suitable allowances for the members of the family, the question as to whether poliems and ancient zemindaris were in each case partible or impartible would not have arisen; the anomaly of resting their impartibility on family custom and of applying to zemindars and poligars the law regulating the powers of managing members of undivided Hindu families--powers which supplemented as they have been by the English equitable doctrine laid down in Hanuman Prasad's case are ample and elastic enough to bring about in course of time the disintegration of zemindaris and poliems, no less than of ordinary partible estates; and the decision of Sartaj Kuari's case which was but the logical outcome of basing the impartibility of those estates on the unsound principle of family custom regulating succession by primogeniture would have been averted. The corporate character of these institutions having however long been destroyed by judicial decisions and by the fiscal laws relating to the sale of land for arrears of revenue due to Government and in no small degree, by a stereotyped form of sannad which was indiscriminately issued under Regulation XXV of 1802 in the case of all estates whether they were ancient zemindaris and poliem or merely mittahs or proprietary estates created under the Regulation--in respect of which latter class alone the form of sannad was appropriate--it is unnecessary to elaborate any further the theory of ' lay civil corporations' under the common law of this country and advert at any length to the origin and growth of these as important political and official institutions.
29. I confess that the theory of the ecclesiastical and lay institutions above referred to being ' corporations sole' may seem an ' old-fashioned sort of notion' not likely to commend itself readily to the modern mind imbued with the equitable doctrine of ' Trusts' on the one hand and the ideas of 'municipal corporations' and 'joint-stock companies' on the other, as well as with ideas of unfettered freedom of alienation both inter vivos and by will and of acquisition by a trespasser or wrongdoer of ownership and of limited interests in immoveable property under the operation of the law of limitation by the wrongdoer persevering in his wrong far over the statutory period whether he be conscious or unconscious of hiss wrong. But I sincerely trust that in the interests of the moral well-being to the people of this country and of its ' peace and good government' the notion will not die out in the case at any rate of ecclesiastical and eleemosynary institutions as it has died out in the case of lay institutions and that their corporate character will be preserved and their disintegration arrested by extending to them the beneficent provision of Madras Regulation X of 1831, which saves the landed estate of minors from liability to sale for arrears of revenue due to Government--the Collector of course being at liberty to realize the arrears by assuming management of the estate under Act II of 1864,--by prescribing in lieu of the existing period of 12 years from the date of the alienation or adverse possession [vide Gnanasambantha v. Velu Pandaram I.L.R. 23 M. 271 a period of limitation of 60 years for suits to recover possession of immoveable property forming the endowment of a public charitable or religious institution, which has been improperly alienated or held adversely to the institution and lastly, (though not least) by amending the Religious Endowments Act (XX of 1863) so as to better define the constitution of the committees established under it, the powers and duties of committees and trustees and their mutual legal relations and render more effective the control of the judiciary over the administration of religious endowments, without in any degree departing from the fundamental principle of the Act, of severing the connection of the executive authorities with such administration, Reverting now to the subject of religious or ecclesiastical corporations sole, the question to be next considered is the effect of lunacy on the status and rights of a mahunt or head of a mutt. He no doubt becomes incapable of discharging the spiritual as well as the temporal functions of his office, but his lunacy cannot divest him of the life-estate which he has in the properties of the mutt, nor can it divest him of his status as head of the mutt. The only course for the purpose of securing the due discharge of the spiritual function of the office and the management and preservation of the endowment and its income is to provide suitable agency for the purposes. Whereas in the present case, the head of the mutt has been found a lunatic on inquisition under Act XXXV of 1858, no difficulty will arise. ' Under Section 9 of the Act, the Court appoints a ' manager' of his estate; and the lunatic has a lif -estate in the endowments of the mutt--subject to the obligation of main taining the mutt out of the income--the manager is entitled to take charge of such estate and manage the same on behalf of the lunatic and provide for the conduct of the necessary worship and the religious ceremonies of the mutt, by appointing persons duly qualified for the purpose. The surplus income left after meeting the necessary and customary expenses of the mutt, will accumulate for the benefit of the lunatic and his successors. If the head of the mutt should recover his sanity and such recovery is declared by the Court under Section 21 of the Act, he will of course be entitled to resume the rights and duties of the office and discharge his temporal and spiritual functions. This procedure is substantially the same as the one obtaining in Europe both under the Canon Law and in the Church of England, when a bishop becomes insane. The author of the ' Praelectiones Juris Canonici' (Vol. II, p. 351) refers to the opinion of some who think that from the point of view of the ' jus naturulis' a bishop loses his jurisdiction from the very fact that he falls into a state that he can never enjoy it; and combating this view, he observes that, this cannot be accepted inasmuch as human rights once lawfully acquired are retained even though he who holds them cannot exercise them himself, for they can be exercised in his name by delegating them--a principle which is in accordance with the genius of the Hindu Law. Under the Canon Law, when an archdeacon or any other person installed in an ecclesiastical office is attacked by lunacy or a disease by which he is rendered unfit to carry out the duties which appertain to him, his Dignity or Office or Benefice does not fall vacant, nor is he to be deprived of it, but provision is to be made for a co-adjutor to him, a portion suitable for the livelihood of the co-adjutor being deducted from the returns. Moderate clothing and food should be provided for the co-adjutor in such a way that the whole of what is left of the profits (after such provision has been made) should remain to the incapacitated prelate or beneficiary (vide Tit ' Juris Canonici Theoria,' Vol. I, p. 84). In Burn's' Ecclesiastical Law' (Vol. I, p. 306 Tit. ' Co-Adjutor') it is stated : 'In cases of any habitual distemper of the mind whereby the incumbent is rendered incapable of the administration of his cure, such as frenzy, lunacy and the like, the laws of the church have provided co-adjutors'. The procedure in the English law is even, now substantially the same and is regulated by the provisions of 6 & 7 Victoria, ch. 62 (see also Pope on Lunacy, p. 370). Applying the above principles to the present case, we find that after the 1st defendant was adjudged a lunatic and the 2nd defendant was appointed manager of the mutt, the late disciple of the 1st defendant was during his life-time, carrying on the ceremonies of the mutt and the worship of Gopinath the idol installed in the mutt and of Ramadeva, the personal God of the head of the mutt--he being qualified to perform the puja for both the idols. Subsequent to the death of the disciple, the 2nd defendant has made due provision for the worship of Gopinath by employing a duly qualified Grihastha (not an ascetic) and for the worship of Ramadeva--which can be done by an ascetic alone--by entrusting it to the 3rd defendant, the head of one of the Udipi Mutts; the manager himself attends to the secular and temporal affairs of the mutt. The manager appointed under Section 9 of the Act XXXV of 1858 being really an officer of the Court, it is of course competent to the District Judge to give him such directions as may be necessary from time to time for the due discharge of the spiritual and secular functions appertaining to the office of head of the mutt.
30. The appeal therefore fails and I would dismiss it with one set of costs.
31. BY THE COURT.--At the hearing of the appeal when Mr. Sundram Aiyer, junior vakil for the 2nd respondent, began to argue the case following his senior, Mr. C. Ramachundra Row Sahib, objection was taken on behalf of the appellant to second counsel being heard for the same party. This objection we overruled as it is the well-established practice not only in England including the Judicial Committee of the Privy Council but also in this country, though this right is not frequently exercised in this Court the only limitation being here as in England that a third counsel is not at liberty to address the Court on behalf of the party entitled to the reply. We are aware second counsel have been heard in this Court and some of the cases in which this was done were referred to by the learned pleader for the 2nd respondent.