John Edward Power Wallis, Kt., Officiating C.J.
1. This is a suit brought by the Pandara Sannadhi of the Tiruvaduthurai Mutt against the Manager of the Madura temple, and the temple Committee of the Madura District to recover possession with mesne profits of four villages as Hukdar or Trustee of the Thanappa Mudaly Kattalai or endowment for the performance of certain ceremonies in the Madura temple, and for an injunction restraining the defendants from interfering with him in the discharge of his duties. The District Judge has found that he has not shown that he was ever entitled to possession and also that his suit is barred. With the latter conclusion I agree, but as the case may not stop hare, and has been very fully argued, I propose to state my reasons for differing from the conclusions at which the District Judge has arrived on the facts. It may well be that in the opinion of those best qualified to Judge the Manager appointed by the temple committee would be a much more satisfactory trustee of the endowment than the plaintiff but this of course is not a matter which can affect our judgment as to the effect of the evidence. The judgment of the District Judge contains an elaborate examination of the voluminous documentary evidence in the case, but fails altogether in my opinion to recognise the strength of the plaintiff's case upon facts which are either admitted or proved beyond reasonable doubt. It is not disputed that the endowment of the four suit villages, and another which has ceased to belong to it, was founded by one Thanappa Mudaly whose name it bears long before Madura came under the Government of the East India Company at the beginning of the nineteenth century. According to the tradition he was a minister of the ruling Nayak at the beginning of the eighteenth century. It is also not disputed that the donors of endowments such as this for temple purposes were in the habit of appointing separate trustees, or that many such endowments in different temples in Southern India were entrusted to the predecessors of the plaintiff Pandarasannadhi and were managed by him through the Agency of Thambirans, as his ascetic followers are called, who resided in mutts belonging to him in the neighbour hood of the temples in question. He has been compared in one of the cases to a Bishop, but his position more resembles that of an abbot of a monastery with dependant priories or mutts in different parts of India, many of them in charge of a single ascetic or Thambiran.
2. There is one such mutt at Madura which bears an inscription shewing that it was presented to the mutt by Chockalinga Mudaliar son of Koneriappa Mudaly son of Thanappa Mudaly, or by all three persons as the words son of are not in the original. This shows that the Pandarasannadhis were the gurus or religious superiors of the family and makes it exceedingly likely that the founder or his heirs should have entrusted this endowment according to a very usual practice to the care of the Pandarasannadhi, more especially as during the time of the Nayaks there does not seem to have been any temple trustee and the general management of the temple seems to have been in the hands of the Government itself.
3. Down to the present time a Thambiran appointed by the plaintiff and residing at the mutt performs the duties of Vicharanai or manager of the Kattalai as regards the ceremonial observances, and it is not disputed that his office is vested in the plaintiff and discharged on his behalf by one of the Thambirans. There is no reason for doubting that his possession of this office goes back far beyond the introduction of the Company's Government either to the time of the founder or of his grandson who built the mutt, and the fact that in the accounts at the beginning of last century H series the word Vicharanai is used in connection with the management of the property of the endowment as well as the ceremonies, suggests that both were in the hands of the Thambiran as agent of the Pandarasannadhi. All that is in question in the present suit is his right to possession of the four suit villages which admittedly originally formed part of the endowment and were attached under the Mahomedan Government and retained under attachment under the Company's rule. His case is that they were in his possession when first attached and that whilst under attachment they were held on his behalf, and there are strong grounds for thinking this was the case down to 1849 when the company handed them over to the temple authorities. There are other villages and lands belonging to the endowment which were not attached and which continue in the plaintiff's possession down to the present day. None of these villages or lands are shown to have been acquired subsequently to the introduction of the Company's rule, and the most reasonable explanation to my mind appears to be that they were additions to the original endowment of five villages made from time to time to the Pandarasannadhi for the purposes of the Thanappa Mudaly Kattalai of which he was the trustee. One of these villages is entered in the inam Register as Koneriappa Moodaly Kattalai which would point to its having been given by Thanappa Mudaly's son who bore that name (Exhibit A.J.) The District Judge is largely influenced by the fact that these lands and villages have always been in the possession of the plaintiff, whereas the suit villages have never been in his possession since the introduction of the Company's Government in 1801. A simple explanation of this is that those other villages and lands escaped attachment under the Mahomedan Government, whereas the suit villages did not.
4. The suit villages stood in the Madura revenue accounts in the name of this Kattalai with numerous other Devastanam villages which under the Hindu rulers had been exempted from assessment; and after the Mahomedan Government took Madura, they were all dealt with as a fresh source of revenue. Of the other villages Kadipatte was in the Saptur Zamindary and not separately assessable, and as the other villages were outside the District of Madura, while the other lands were in villages which did not come within the class of Devastanam villages. When the Mahomedans took Madura they appear to have at first imposed a poruppu, which is the name for a favourable quitrent as distinct from the full assessment, upon the Devastanam villages, and later on in the financial embarassments they found themselves in they resumed all these villages and merely made such allowances as they chose for the upkeep of the temples, etc. This was the state of things which the company found existing in this and other districts when they took over the Government at the beginning of the last century. Among the villages which the Company-found under attachment were the suit villages belonging to the Thanappa Mudaly Kattalai.
5. The only evidence as to any one but the Pandarasannadhi and his agents having anything to do with this Kattalai before the company's time is to be found in H7, an extract from the accounts of 1816, in which the endowment is said to have been made by Thanappa Mudaly in the time of Vijiaranga Chokanada Nayakar, and Vedanayaga Battar and Tirumalaya Pillai are entered under the heading name of previous mirasidars as the persons who got the danam or gift. Nothing is known of these persons, it is not stated that any office was granted them, and the same account enters under head of name of person entitled to manage. Manickavachaka Thambiran Paradesi of Tiruvadudurai mutt, vicharanai or Manager, thus showing that the management was then in the hands of the plaintiff's agent. As I have already said the effect of H7 is to show that the general management at the time was in the hands of the Thambiran. Exhibit C, an extract from accounts for 1799 refers to the five villages as inam villages of temple of Minakshi Tanappa Mudaly Kattalai, but does not show that any one but the plaintiff's predecessor was the trustee of his endowment. Nor is the fact entitled to any weight that in Exhibit D7 one of the villages Ammur is referred to as the temple Kattalai, whereas in Exhibit D5 of the previous year it is referred to as a Thanappa Mudaly arakattalai village. The defendants also rely on Exhibit Va, which is a list of pattadars or lease-holders of the village of Velangudi from the accounts of 1801 in which arakattalai Perumal Pillai appears as one of the pattadars. This is one of the Kattalai villages which has been all along down to the present in the possession of the plaintiff, and the accounts prove nothing. The defendants also refer to Exhibit V an extract from the Revenue accounts relating to the temple for 1802 in which under the heading person who is Kattalai Vicharana or Manager are entered the names of two persons, Nalla Perumal Pillai--possibly the same person whose name was found--(Exhibit Va) and Ponnambala Pillai. This merely shows that these two persons, under what circumstances does not appear, were then discharging in the year 1801 the office of Vicharana of the Kattalai which has admittedly been discharged by the plaintiff through his agents from 1816, the date of Exhibit H7 down to the present time. It may very well have been that the post of the Thambiran of the mutt was vacant at the time the company took over, but we never hear of any one but the Thambiran being in management. Exhibit E, an extract from an account relating to the Thanappa Mudaly Kattalai for 1814 under the heading purpose for which inam was granted and in whose charge mentions Ammur village as granted to the temple, Chettikulam as granted to Thanappa Mudaly arakattalai and the Other villages of Chinna Ulgani and Kasulkolam as being in charge of Manickavachaga Thambiran. Here so far as any one is mentioned as in charge of the villages it is the Thambiran. As the position was admittedly the same with regard to all those villages the divergencies as to the different villages show that the statements in those accounts are to be received with caution. Exhibit D series show that from 1801 to 1817 the income of the villages, after deducting the poruppu or quit rent was paid to the inamdar, but leaves it open who the inamdar was. Exhibit H6 is an account of the revenue collections for 1816 from all the Kattalai villages in charge of Government at that time showing as to each, the amount payable after deducting poruppu mentioning the name of the person superintending the Kattalai to whom presumably the money was to be paid for the performance of the Kattalai as no one else is mentioned. Manickavachaga Thambiran is shown as the person superintending the Thanappa Mudaly Kattalai and was presumably the person to whom payments was made. This Exhibit in my opinion very strongly supports the plaintiff's case that from the time the company assumed the Government in 1801 down to 1816, the net income after deduction of quit-rent was paid to the Thambiran as Manager; and they rely on the statement to this effect contained in Exhibit B, and Bl extract from books produced from the Collector's office and in Exhibit 04, which will be noticed subsequently.
6. In 1817 there was admittedly a change in consequence of the passing of Regulation VII of 1817 which gave the Board of Revenue complete control over temples and endowments. Instead of the income being paid over as formerly to the Superintendents of the different kattalais, tasdiks or budgets were framed for each Kattalai providing for the expenses of the Kattalai, and only so much of the income was paid over as was sufficient to provide for this expenditure, the balance being reserved in the hands of Government (G and G2) as the tasdiks for 1817, and the fact that the Thambiran is only allotted a small salary of 3 pons per month as Vicharanai or manager, and that G2 directs that payments are only to be made to the employees, among whom apparently the Thambiran was included, if they discharge their duties, are relied on by the defendants to shew that it was not intended that payments should be disbursed through the Thambiran. Exhibits J and I show that the Thambiran continued in management of the other villages and lands, though it appears from Exhibit 2 of 1824 that, under the powers conferred by regulation VII of 1817, he was required to account for his collections, and the village of Kalipatti was attached for failure to perform his duties.... It further appears that in 1836 a new Tasdik or budget was framed including for the first time the revenues of these other villages, which however were still left to be collected by the Thambiran, as they still are.
7. Very much has been made on the part of the defendants of the subordinate position to which the Thambiran as Vicharanai or Manager of the endowment was reduced in this period in the exercise of powers confirmed by Regulation VII of 1817, but in my opinion too much weight should not be attached to this, as we find that the same control was exercised over the collections of the villages and lands belonging to the Kattalai of which the Pandarasannadhi was admittedly trustee in possession as over the collections of the villages which were under attachment. If this control was not inconsistent with the Pandarasannadhi being trustee as Hukdar of the other villages and lands though deprived of all effective authority, it is equally not inconsistent with his having been Hukdar or trustee of the suit villages which were under attachment from the time the company took over. As regards the smallness of the Thambiran's salary it must be remembered that he was an ascetic, and it seems not improbable that the amount allowed him in the Tasdik was the amount which he had been allowed to spend on himself when the income was paid over to him.
8. I have now to deal with what seems to me a very important part of the case. In 1836 Mr. Blackburn the Collector of Madura, addressed instructions Exhibit B to the Peishcar or Revenue Officer of the District instructing him with reference to the Devastanam and Chuttram villages, that is to say, the villages belonging to endowments for religious and charitable purposes, which had been attached by the company and were then under the Peishcar's control as regards income and expenditure, to inquire and report under whose management they were before the attachment by the company, that is to say before 1801. He was to furnish full information as to the Vicharanai or manager, particulars of the Kattalai the name of the founder and of the present Hukdar or trustee, the names of the villages, who made the collections who incurred the expenditure and to whom accounts were rendered. He was also required to state the year in which the Tasdik or budget system was introduced, and the year in which a new Tasdik or budget was framed. The inquiry was held, and the result was recorded in two books, which were produced at the trial from the Collector's Office, the extracts relating to the endowment which are duplicates being marked as Bl and B2. How the other Kattalais were dealt with we do not know, as the parties and the pleaders were not allowed to inspect the rest of the book; what we find as to the suit Kattalai is a statement taken from T. Namasivaya Thambiran Vicharana (Manager) of the Thanappa Mudaly Kattalai, who was admittedly the representative of the Pandarasannathi. The book as a whole was signed by the gumastah who copied the statements into it and countersigned by the Peishcar who put it forward as embodying the result of his enquiry. The fact that in the performance of his duty to inquire and report the Peishcar contented himself as regards this Kattalai with recording a statement from the Thambiran is to my mind very strong evidence that he was recognised at the time as Vicharana or Manager and Hukdar of the endowment including the suit villages as the plaintiff's agent, and that there was no other claimant in the field in the shape of the temple itself as any one else. The general effect of the statement taken from him is also in entire accordance with the inferences which I draw from the earlier evidence which I have already examined. It no doubt represents not only the suit villages but the other properties as well, as forming part of the original endowment, whereas it is more probable that they were acquired subsequently before the company's time. The account of the way in which the five villages came into the hands of the company is also not candid as they are represented as having been taken over at the request of the Hukdar, whereas we knew from Mr. Hardis' report Exhibit A that the company found these as well as the other Devastanam villages under attachment and so continued them. I see no reason to doubt the next statement that under the com pany the income of the villages after deducting the poruppu or quitrent had been paid over from the Government treasury to the Thambiran and that he had performed the Kattalai with the aid of such income and the income of the other properties in his possession until November 1817, when a budget Exhibit G, was introduced, after which another budget g, was introduced in 1833. In so far as it relates to the matters on which he was required to report I think the Peishcar must be taken to have accepted this as satisfactory statement. I am entirely unable to agree with the statement of the District Judge in paragraph 18 of his judgment that Exhibit Bl and B2 have not the slightest probative value.
9. I do not consider it necessary to go into the rest of the evidence in detail. Exhibit N series is an interesting series of public documents showing the change of policy as to the connection of Government with temples. In 1842 they gave up the management and appointed a manager for the Madura Temple in the exercise of the powers given them by Regulation VII of 1817. In 1849 they decided also to give up the possession of the Devastanam villages including the suit villages which they had retained under attachment since 1801. If I am right in the conclusion I have come to the plaintiff through his agent was then entitled to possession. As regards the villages attached to various Kattalais in the Madura Temple the Collector in O2 proposed to hand them over to the temple manager, and the Board, in O3 dated 25th May 1849, approved of this course in the case of the suit villages, whilst directing generally that claims by the descendants of the founders might be reported for special consideration. Shortly after this on 2nd June 1849 we. find a descendant of Thanappa Mudaly putting forward in Exhibit O4 a claim that the suit villages should be handed over to him jointly with the Pandarasannadhi. He asserted that his ancestors had put the villages in possession of the Pandarasannadhi, and that his descendants had been managing the property with him and that they should not be handed over to the temple manager who was a mere stranger. The endorsement refusing the petition accepts the petitioner's statement that he was agent or Hukdar with the Pandarasannadhi and states that the villages had never been in possession of the Hukdars since the attachment by the company, but that they had been receiving settled dastabery--the budgetted allowances, first from Government direct, and afterwards (subsequently to 1842) from the manager of the temple out of the net income of the villages and, as the management which had been in the hands of Government had been handed over to the temple manager, it was only right that these villages should be handed over also and these were the Board's orders. We do not hear of the des-cendants of Kanappa Mudaly having claimed before or since, and their intervention may have been invited in view of the act that in the proceeding already cited the Board had stated this would only recognise the claims of descendants of the founders. This endorsement however appears to me to be a recognition of the Pandarasannadhi's position as Hukdar or trustee of these villages though accompanied by a refusal to restore them to him on the ground he had been so long out of possession. It is significant that it was not suggested on this occasion that the villages were being handed over to the temple manager because the temple itself and not the Pandarasannadhi was the Hukdar which is now the case of the defendants. The Pandarasannadhi did not contest as he might have done the handing over these villages to the temple manager in 1849, nor did he apparently claim to have them registered in his name at the inam commission in 1863, and they were registered in the name of the temple manager K10, K14, K15, and K16. In conclusion I may mention that the position of the plaintiff as Hukdar was recognised by the temple authorities in the litigation in the seventies. The opposite theory in my opinion fails to account for the connection of the plaintiff with the endowment and appears to proceed on grounds which are highly speculative. Whatever the reasons which induced the Pandarasannadhi to acquiesce in the suit villages being handed over to the Manager of the temple in 1849, there is no doubt that they have since been in possession of the manager of the temple when there was one and when there was not in the possession and management of the local temple committee under Act XX of 1863 who for some periods managed the affairs of the temple themselves instead of appointing a manager as they are required to do under the Act. Their possession equally with that of the manager when there was one, was clearly on behalf of the temple, and also as it seems to me on the facts already stated clearly adverse to the plaintiff. It is no doubt true that the plaintiff has all along been in possession of the office of Hukdar of the Kattalai so far as the ceremonial observances are concerned and also in possession of the other villages and lands belonging to the endowment though accounts for their proceeds, but he has been out of possession of the suit villages which have been in the management of the temple claiming adversely to him though the revenues of these villages have also been applied for the purposes of the endowment. It has been contended for the plaintiff that a limited right of possession and management of part of the endowments of a religious office could not be acquired by prescription. Admittedly there is no direct authority for this proposition which was also raised before me in another appeal from Madura where however it was un-necessary to decide the point. I cannot see why a limited right of management of an endowment should not be prescribed for as well as any other limited right, and I agree with my learned brother that the decision of their Lordships of the Judicial Committee Balvant Rao Bishwant Chandra Chor v. Purun Mal Chaube (1885) W.L.R. 10 IndAp 90 which was not cited in the argument is an authority that it may. The plaintiff in that case in their Lordships' opinion was suing only for his own right to manage or in some way to control the management of the endowment, and it was held that such a right might become barred. In the present case I think the limited right of management claimed by the plaintiff in this suit has been barred by adverse possession for nearly sixty years before suit, and that on this ground the appeal fails and must be dismissed with costs.
Seshagiri Aiyar, J.
10. I have the misfortune to differ from the learned Chief Justice on the facts of the case, and I am therefore obliged to examine them in greater detail than I would otherwise have done.
11. The plaintiff in this case is the Pandarasannadhi of the Tiruvaduthurai Mutt. The first defendant is the manager of the Meenakshisundareswara Devasthanam at Madura. The other defendants are the members of the temple committee.
12. The plaintiff's case is that the villages in dispute were granted by one Thanappa Mudaly for performing certain 'pujas' in the temple at Madura (the endowment is known as 'Thanappa Mudali Kattalai'), that his predecessor in title, as head of the 'Thiruvaduthurai Adinam', was appointed here-ditary trustee in respect of the said endowment, that he was in possession and enjoyment of those villages, that on his behalf the British Government were managing the villages, that after the constitution of the temple committee, under Act XX of 1863, the committee was managing on his behalf, that the present manager refused either to account to the plaintiff for the income received from the villages or to deliver over possession of the properties to him and that consequently he is entitled to recover possession or to be paid the income. The defendant denied that the plaintiff was ever constituted trustee of the Kattalai, and pleaded that the villages were directly given to the temple, that certain agents of the plaintiff at Madura were entrusted as paid servants with the management of the Kattalai from time to time, that the plaintiff had no right either to the management or to the possession of the properties, and that the claim in respect of possession was barred by limitation. The most important issue relates to the plaintiff's predecessor having been constituted trustee by Thanappa Mudaly: The other questions are covered by issue IX which runs as follows: Whether the defendant's possession of the suit properties is only on behalf of the plaintiff and permissive and if not, whether the suit is in time.'
13. The District Judge held that there was no evidence of the plaintiff's predecessor having been constituted trustee of the Kattalai, that the defendants were not agents of the plaintiff in the management of the villages and that the claim was barred by limitation. The plaintiff has appealed.
14. Before dealing with the questions relating to the plaintiff's title and the bar of limitation, I must make a few remarks on the term 'Kattalai.' That expression is used with reference to three different kinds of endowments. Properties may be endowed for the performance of 'pujas' in the temple or for the performance of certain festivals in the temple, or for the performance of archanas to the deity in the name of the donor. In the first class of cases, the endowment is utilised for conducting the necessary and vital part of the worship and of the ritual in the temple. Ordinarily, the puja is not performed in the name of the donor and consequently supplemental grants are made for the purpose of the service being more efficiently performed. Instances of this nature are to be found in the famous temple at Chidambaram where almost all the necessary daily services are conducted by means of Kattalais endowed by pious donors. In the second class of cases where grants are made for the purpose of 'Ootsavams,' if in consequence of a rise in prices or for other reasons, the funds are not sufficient for performing a festival on the same scale as was begun with by the original donor, it is usual for others to supplement the funds either by making permanent grants of land or money or by yearly contributions towards the celebration of the festival. It has to be remembered that it is not uncommom among Hindus to make anonymous gifts: The preferable form of gift is for the donor to remain unnamed. Consequently, it very often happens that, where the funds in respect of a particular service or festival are not sufficient for conducting them on the original scale, new donors come forward to supplement those funds. In the third class of cases (for example, the Pachaiyappa's Kattalais in various parts of the Presidency) where grants are made for performing 'archanas' in the name of the donor either daily or on stated occasions, if the funds are not sufficient to meet the expenses, others will not come forward to supplement the resources. The 'archana' is intended solely for the spiritual benefit of the grantor and it is not the concern of third parties to help in its performance if the funds are for any reason not found sufficient. In the present case Thanappa Mudali's Kattalai was intended for two services known as the 'Oochikala' or midday service and 'Ardhajama' or midnight service. These are more important than festivals and unlike archanas they cannot be dispensed with. They are a necessary function of the worship of the idol. I have made these remarks in order that the history of the subsequent additions to this Kattalai may be understood in their proper perspective.
15. It was argued by Mr. K. Srinivasa Aiyangar for the plaintiff that if a service is known by a particular name and if its expenses have been met from a particular source, it is not likely that that source will be supplemented by contributions from other donors. I do not think this contention is well founded. As I have already stated, subsequent donors very often add to the funds devoted for a necessary ritual in the temple. The first question for consideration is whether Thanappa Mudali constituted the Thiruvaduthurai Adhinam the hereditary trustee of the Kattalai in question. It is admitted that no written grant relating to this endowment exists. It is said (see Exhibit B) that the papers relating to the grants were lost during the Muhammadan invasion. The suggestion is that they were with the agent of the plaintiff in Madura. There is no reason why the title-deed should not have been in Tanjore, the head-quarters of the Adhinam, where it is well known that grants of this description are carefully preserved by the head of the mutt. One would have expected a copperplate grant to have been produced if the story of the plaintiff is true. It is the case both for the plaintiff and the defendant that the original donor, Thanappa Mudali, was the Pradhan or Prime Minister of Vijiaranga Chokanatha who ruled in Trichinopoly between the years 1704 to 1731. This King granted the suit villages to his minister in order that he might endow them to the temple. It is therefore most likely that some writing evidencing the grant would have been executed to the plaintiff's mutt if it was constituted trustee. I am not satisfied that the allegation that the papers relating to the grant were lost at the time of the Muhammadan invasion has any foundation. There is absolutely no evidence given in this case as to what those papers were and how and when they were lost.
16. On the other hand, it seems clear that the grant was made to the temple itself and not to the plaintiff's predecessor Mr. Nelson in his interesting Manual of the District of Madura says that the temple was nominally under the direct supervision of the Kings of Madura, and that they appointed a Chief Brahmin priest to look after the temple properties (see Madura Manual, part III, page 159). As pointed out by Mr. Ghose in his 'Tagore Law Lectures' on 'Hindu Law relating to impartible property and endowments,' the idea of a shebait and a trustee is a modern one. He says that in ancient Hindu society when there were no regular trusts or trustdeeds, in the case of the setting up of an idol, gifts of land were usually made to priests and other persons who were necessary for carrying on the worship. Mr. Nelson's account that the properties of the temple were managed by the Kings through a Chief Brahmin priest is in accordance with what happens in Hindu temples throughout India. And, if a Brahmin priest was in management of this temple, the grant would have been made to him on behalf of the temple and not to the plaintiff's predecessor who had his headquarters in the District of Tanjore. This is borne out by the report of Mr. Hurdis (Exhibit A) in which he says that the Church Brahmins, as he calls the priests, were in possession of the properties belonging to the temple. It was pointed out in Ramasawmi v. Ramasawmi : (1892)2MLJ251 that in most of the temples in this Presidency there are no regular trustees but that the Archakar or Pujari Brahmin is really both the officiating priest and the secular manager of the affairs of the temple. In this case there is Exhibit H7 which places the matter beyond doubt. This is an extract from the account of fasli 1226 relating to the temple which was kept in the Collector's Office. In the column relating to the name of the previous mirasidar, the entry is person who got the danam, Vedanayaga Bhattar and Tirumalayya Pillai. Under the heading of the 'name of the grantor' the entry is Thanappa Mudali who was the Pradhan of Vijiaranga Chockanatha--it is 90 years. There can be no doubt that this document comes from proper custody and contains the information available in 1816 regarding the persons who made the grant, and the persons who received the gift. This Vedanayaga Bhattar, it is conceded, was a Brahmin. The word Bhattar in Mudura indicates the profession of a priest in the temple. Who Tirumalayya Pillai was, there is no evidence. It is not suggested that this Tirumalayya Pillai had anything to do with the Tiruvaduthurai Mutt. He could not have been one of the Thambirans who were in Madura. However there is no doubt that one of the donees was a Brahmin and this, as I said before, is in accordance with the usage in this behalf and in accordance with what Mr. Hurdis says in Exhibit A. My conclusion is that there is not only no evidence to show that the original grant was made to the Adhinam for the purpose of conducting the Kattalai in the temple, but that there is positive evidence that it was made to two persons one of whom was a Brahmin who must have been the chief priest of the temple at the time of the grant.
17. I shall now refer to the subsequent history of this Kattalai: Vijia Chockanatha ruled over the Carnatic until 1731. His wife, as guardian of his minor son was in possession of it till 1735 or 1736. About that time the Muhammadan rulers seized the districts of Trichinopoly and Madras. As Mr. Hurdis points out, (and Mr. Nelson supports him), the Muhammadan rulers confiscated all endowments belonging to the temple in these districts. In 1790 the Madura Government assumed possession of the Madura District, because the Nabob of the Carnatic was not able to contribute his share of the expenses of the alliance with the company; and they appointed Mr. Mcleod to manage the District. As is pointed out in the Gazetteer (pp. 68--70) Mr. Mcleod was content with receiving the profits from the renters of the district. Finally, in the year 1801 by a treaty between the Nabob of the Carnatic and the East India Company the District came into the hands of the East India Company, and the first Collector of Madura was Mr. Hurdis. After he took charge, he submitted a number of reports of which we have only Exhibit A before us. It is stated in the Gazetteer that the Board ordered the Collector to restore to the temples the lands resumed from the pagodas, but for some reason not now traceable Mr. Hurdis never carried out these instructions; and the Devasthanam lands remained in the hands of the Government until 1841. In 1842, in pursuance of the policy of the Government to divest themselves of all connection with Indian religious institutions, the Devasthanam properties were handed over to a Manager appointed by Government. I am of opinion that the Brahmin priest or Church Brahmin, as Mr. Hurdis calls him, was in possession or the property until he was deprived of it during the Mahommedan invasion in or about the year 1736, that from 1736 to 1790 the Mahommedan Rulers enjoyed the rents and profits, and that finally in 1801 the villages came into the possession of the East India Company. From this date there is no doubt that even though the possession of the villages was with the Governmen till 1842, their income was utilised for temple purposes: From 1842 onwards, the general manager of the temple was placed in possession of these villages.
18. I may here refer to two documents which have to a great extent influenced my decision in this case and they are Exhibits V and Va. Exhibit V is an extract from the account relating to Minakshi temple, Arakattalai, prepared for the Jamabandi. It is date 1802, shortly after Mr. Hurdis took charge of the district. It gives the name of Thanappa Mudali as the donor and under the heading person who is Kattalai Vicharana the names given are Nallaperumal Pillai and Ponnambala Pillai. Under the column property security, personal security, the entry is village Panaiyur, Veerabhadra Pillai; Village Iravatanallar, Muthu Pillai. Now, this document whose authenticity is beyond question gives the names of the above two individuals as being the Kattalai Vicharanaidars, that is the managers of the Kattalai. It is not pretended that these two persons were the agents of the plaintiff. A feeble suggestion was made that they might have been the agents of the local Thambiran. If that were so, it is inconceivable that the agents of the Thambirans would have been entered as Vicharanaidars when the Thambirans themselves were on the spot. In the next place, these two persons had to find security for the management of the Kattalai. Veerabhadra Pillai of one village and Muthu Pillai of another village stood sureties for the management. If the Thambirans were the actual managers, it is unbelievable that they would not have come forward, at least, to stand surety for their servants. The only conclusion I can draw from this document is that in the year 1802 Mr. Hurdis appointed these two persons to be the managers of the Kattalai and asked to find sureties for their proper management. If any person had any hereditary right at this period, he would certainly have been mentioned in this document. In the next document Exhibit Va which is with reference to another village Villangudi (which is even now in the possession of the plaintiff), the name of the pattadar is entered as Nallaperumal Pillai. To my mind, these two documents are almost conclusive evidence that until the year 1802 the plaintiff or his predecessors-in-title had no right what-soever to the management of this Kattalai. How they got in and under what circumstances, I shall mention later on. But these documents which are of the same period as the entry of the British Government into possession of the district are the strongest pieces of evidence against the claim of the plaintiffs for a hereditary trusteeship in respect of the Kattalai. If they had acquired any such trusteeship it must have been subsequent to 1802.
19. I shall now trace the connection of the plaintiff's Mutt with the management of this Kattalai. It was in the year 1814 for the first time that we hear of a Tiruvaduthuri Thambiran as being in charge of this Kattalai. Exhibit E is an extract from the register of accounts relating to Kattalais. It was compiled in Fasli 1224 corresponding to 1814. In the column, purpose for which the inam was granted and in whose charge, there are two entries: (a) to the temple of Minakshi Sundaraswarar at Madura; '(6)' for Devasthanam Oochakala Kattalai in charge of Manickavachaga Thambiran. Under the column by whom was the inam granted, the name of Thanappa Mudali appears. In this document there is absolutely no reference to any here-ditary right in Manickavachaga Thambiran. Manickavachaga Thambiran was admittedly the agent of the plaintiff's Mutt in Madura and he remained in the District from 1814 to 1833. I do not attach any importance to the fact that in Exhibit F a copy of the above extract sent to the Board of Revenue the name of Manickavachaga Thambiran does not appear. It was probably not necessary to communicate to the Board of Revenue the fact of the existence of a person who was a mere manager; but if Manickavachaga had any hereditary right that would have undoubtedly been mentioned in Exhibit E, and it would be a significant omission in Exhibit F, the copy which was sent, to the Board. Therefore, on the very first occasion that we hear of a Thambiran's connection with this temple, he is simply referred to as being in charge of the Kattalai.
20. Then we come to Exhibit G which was prepared in October 1817. It is an account of the budget allotment for the Thanappa Mudali Kattalai. In giving the names of the persons to whom salaries were paid under the heading establishment, the very first entry is Vicharanai (i. e., manager Manickavachaga Thambiran; and his pay is entered as 3 pons, equivalent to Rs. 4-1/2. I cannot believe that if a person had a hereditary right to the office of the trustee he would have been mentioned under the heading 'establishment' and as having been paid a salary of Rs. 4-1/2 a month. It has to be remembered that the other persons who are mentioned in this document are the monigar who is given the same pay as the manager, the kanakkan whose pay is slightly less, the paricharakan who is paid l-1/2 Rs. the purohit (who performs Rudra Japam) who is paid one rupee and so on. Therefore in this year 1814 we find a Thambiran of the plaintiff's Mutt entered as being a paid manager of this Kattalai. Then, we go to Exhibit G2 which is for fasli 1226 corresponding to 1816. In the budget for that year, under the heading 'establishment' Manickavachaga Thambiran figures as the first of the paid servants and his pay is again entered as 3 pons or Rs. 4-1/2. Then we come to Exhibits H6 and H7 which are for the year 1816 and under the heading 'name of the donor' the entry is 'granted by Thanappa Mudali, superintended by Manickavachaga Thambiran.' Here again, there is no reference to any right of trusteeship as pertaining to the plaintiff's Mutt. These documents are vere important. I have already referred to the entry in Exhibit H7 which shows that the original grant was made to a Brahmin and a Pillai. Exhibit H6 is an account of all the endowments of the pagodas and contains the names of the persons who were managing them. Tirumal Naick's Kattalai which comprises more villages than Thanappa Mudali's has a paid manager a large number of similar endowments are also mentioned, each one of them being managed by a paid servant. It is in evidence that all these properties excepting those endowed by one Tiruguna Sambanda Swami are now in the possession of the temple, and no one has ever put forward any claim to them as being hereditary hukdars. Then we come to Exhibit J; this belongs to the year 1821. This is a notice issued by the Collector to Manickavachaga. Therein he is referred to as being attached to the Tiruvaduthurai Mutt. It was suggested that the language of this document indicates that the Kattalai itself was attached to the Tiruvaduthurai Muttam. I have looked into the original and I am satisfied that it is not so. Exhibit J is a notice issued by the Collector and the des-criptive title of being attached to the Tiruvaduthurai Muttam cannot be construed as indicating that the Kattalai itself was attached to the plaintiff's Mutt. The document certainly does not say that this Manickavachaga was a hukdar of the Kattalai. A similar description of this Manickavachaga is to be found in Exhibit II with reference to another village, Kulipatti, which is still in the possession of the plaintiff and about which I shall have to say a few words later on. One cannot attach any importance to notices of this kind sent by the Revenue authorities wherein a casual reference is made to the addressee as being attached to a particular Muttam. The word hukdar for the first time appears in Exhibit Gl of the year 1834. There was some argument about the date of this document but a reference to Exhibit VIIIF puts it beyond doubt that this document was prepared in the year 1834. This is an account of the budget prepared in that year. The entry very much relied on is 'beriz of Kudipatti etc., through the hukdar.' This Kudipatti was in the possession of the plaintiff's agents in Madura. There is no doubt therefore that the reference to 'hukdar' is a reference to the plaintiff's agents in Madura. There is no doubt therefore that the reference to 'hukdar' is a reference to the plaintiff's agent. It is this word 'hukdar' which was first used in this year that has been given an importance and a meaning which undoubtedly it does not deserve and which has enabled the plaintiff to put forward his present claim. But Exhibit Gl, in giving details of the budget under the heading 'Sibbandi' or establishment, puts Manickavachaga Thambiran at the head of the list and gives him a salary of 4 pons or Rs. 6. If he was hukdar in the sense in which that term is now sought to be employed, is it likely that he would have received a salary for doing the honorary duties of a trustee? The document at the end of it moreover says, disburse pay to the abovementioned persons after taking work from them. This does not read as if Manickavachaga was anything but a paid servant.
21. The other documents, which I do not think it necessary to refer to in detail, are Exhibits II, VII, VIIa, VIIIb. They all refer to the Thambiran at Madura as the Superintendent of the Kattalai. Then we have Exhibits Ml, M2, M3, M4, which relate to the period when Manickavachaga was succeeded by Namasivaya Thambiran. Exhibit Ml is important as being the first occasion when a reference is made to the Pandarasannadhi of Tiruvaduthurai. The document says that the Arzi written to our office on the 3rd February current from Pandarasannadhi stating he has appointed and sent Namasivaya for the Vicharanai of the Meenakshi temple at Madura was received. It was argued by Mr. K. Srinivasa Aiyangar that, unless there was an hereditary right to the Vicharanai of this Kattalai, the Pandarasannadhi of Tiruvaduthurai would not have appointed an agent and intimated the name to the Revenue authorities in Madura. It has to be remembered that the Tiruvaduthurai Mutt is a religious institution of great sanctity and importance to the non Brahmins of Southern India. It has extensive properties in almost all the Tamil districts and, as is customary with such religious institutions it has branches in every important religious centre for the purpose of giving religious instruction to the disciples of the Mutt. And, it is in consequence of this position of the Mutt that agents were from time to time appointed and placed in charge of the Mutt at the sacred city of Madura. I feel no doubt that it was in consequence of the sanctity of the local agent and having regard to the fact that he had a large number of disciples to whom he was giving religious instruction, that originally the Government requested him to be in charge of this Kattalai. As to when the branch of the Mutt of the Tiruvaduthurai Athinam was established in Madura, there is some little doubt. It is said that the grand-son of the original Thanappa Mudali built a Mutt in Madura for the residence of the agent. A stone inscription has been exhibited in this case Exhibit (AJ) which says that it was a gift by this grand-son to the Tiruvaduthurai Adhinam. Therefore, the fact that in Exhibit M, the head of the Tiruvaduthurai Mutt intimated to the Revenue authorities that he had appointed a local agent is not evidence that the Tiruvaduthurai Mutt had a hereditary title to this Kattalai. It is in the natural course of events that the Collector of the District should have looked to the head of the Mutt at Tanjore to send a proper person to manage the of this Kattalai. Exhibit M4 is apparently the order of appointment from the Tahsildar to this Namasivaya Thambiran. It says we have ordered you should look after the management in the place of the deceased. You should therefore conduct the said Kattalai accordingly. If by the nomination of the Pandarasannadhi a right to the Kattalai trustee-ship ipso facto accrued to the nominee, how is this to be accounted for that before the nominee could discharge his duties he had to receive the orders of the Revenue authorities for that purpose? In Exhibit VIIIf which is also of the year 1834 the manager of the Devasthanam writes to the Collector recommending that there should be an increase in the pay of the Vicharanai of the Thanappa Mudali Kattalai. He points out that the manager of the Thirumalai Naick's Kattalai gets 20 peons, and that it is reasonable that the manager of the Thanappa Mudaly Kattalai should have an increase. There is no mention of hukdar in this document. In Exhibit Vlllg, dated 16th July 1835, the increase of pay is sanctioned; the entry is enter in the accounts pay 8 pons a month for him and forward acquittance roll from the 1st August disbursing to him that salary regularly. In Exhibit VIIIh, a letter written by Namasivaya Thambiran to the Collector, he says I succeeded to the post of hukdar of the said Kattalai from the Tiruvaduthurai Adhinam. You referred the matter as to my appointment to the Collector of Tanjore District; the authorities of the Tiruvaduthurai Adhinam there-fore gave deposition before the Tahsildar of Kuttalam Taluq in favour of my being appointed to the place and an order of my appointment was passed on the 25th April 1834.... I had been looking after the duties of hukdar of the said Kattalai. I am entitled to pay for the said period, namely 16 pons, I request the orders of the investigating peishkar to the said amount in my charge being debited to the Jamakarchu account and allowed to me. The Collector endorses upon it: it appears that you did not do the work of Superintendent of the said Kattalai for 4 months and 5 days from the date of the death of the late Superintendent to the date of your appointment. Hence there is no need for orders to disburse to you the pay for that period. It is curious that although Namasivaya styles himself as the hukdar of the Kattalai, the Collector simply calls him the Superintendent of the Kattalai. It is clear that in the year 1834 and 1835 the term hukdar was used as convertible with the term Vicharanai or Superintendent. Thus from the year 1802 to 1835 we hear of the local agents of the Mutt being employed as Superintendents of the Thanappa Mudali Kattalai; they start on a pay of 3 pons; their pay is increased to 8 pons; they call themselves Superintendents at first and subsequently assume the ambitious title of hukdar; they are placed at the head of the establishment of the servants of the Kattalai; the peishkar is directed to get work from them; their pay is stopped for the days that they absent themselves from work. Their duties are defined in Exhibit Vlllf in these terms: to take the necessary care in bringing to this place the emoluments from the villages for the purpose of administering the charity attached to the Kattalai; to visit the temple every day and night and exact the temple work without delay from the servants attached to the Kattalai, to see that paid Kattalai etc., go on properly and in time to the above Kattalai, and the duty devolves upon the incumbent also to attend with patience and care to all the other duties pertaining to the above Kattalai. These duties are more like those of a paid servant than those of a hereditary office holder.
22. Before I leave this period I shall refer to some documents on which reliance was placed for the appellant. In Exhibit D series after referring to the villages one by one there is a remark to the effect that the balance was paid to the Inamdar after deducting the 'poruppu' upon the village. It was contended that the reference to the Inamdar in these documents was to the plaintiff. It has to be remembered that prior to these documents there is no reference to the plaintiff as Inamdar anywhere. In Exhibit C it is stated that the 5 villages are the absolute inam villages of the temple of 'Meenakshi Thanappa Mudali Kattalai.' Reading Exhibit C and Exhibit D it seems to me that the term Inamdar applies to the idol and not to the plaintiff who was never before spoken of as the Inamdar.
23. Another point which was pressed was that the Tasdig amount was paid to the plaintiff and that that indicates a hereditary right in the plaintiff to spend the income of the Villages. The evidence upon the question of the payment of the budget amount is very meagre. There is some support to the suggestion made by the plaintiff in Exhibit N series and also in Exhibit XX. From the stray references to the disbursements of the budget by the Thambiran one can hardly come to a conclusion that as a matter of right the amounts budgetted for were given to the Thambiran for expending them on the Kattalai. But, granting for a moment that in some years the budget amount was in the hands of the Superintendent for expenditure in the temple, it does not follow that it was entrusted to him as a trustee. It has to be remembered that the Thambirans were in possession of other villages whose income had been dedicated to this Kattalai and it was only natural that the Government when they managed the endowment, and the manager when he was in charge of the general supervision of the temple should have given the income from these 5 villages to the Thambiran who had other incomes in his hands, for the purpose of expending both together for the Kattalai. To my mind, the evidence only leads to the conclusion that the Thambiran when he was Superintendent was consulted in the preparation of the budget but that would not amount to a recognition of his right as trustee of the Kattalai.
24. Much stress was laid upon the fact that the Thambiran was and is still in possession of certain other villages whose income admittedly is being spent upon the Thanappa Mudali's Kattalai. It has first to be remembered that there is no evidence as to when these other villages came to the possession of the Thambirans. The original contention of the plaintiff that they formed part of the same endowment is absolutely untenable. Exhibit C of the year 1809 refers only to the 5 villages as forming the Kattalai. Exhibit D series also refer only to these 5 villages. Exhibit E, a statement prepared to be sent to the Board of Revenue, does not refer to any village other than the five as forming the Kattalai. Exhibit F is to the same effect. Exhibit VII is decisive of the question. It is an extract from the register of Takids sent to the Tahsildar by the Collector in the year 1827. It says apart from the villages entered in the Tasdig for Thanappa Mudali Kattalai for Meenakshisundareswarar Madura, there are four other villages for the Kattalai, in the Karur Taluq, one Kulipatti and so on. This shows beyond doubt that the original endowment consisted only of the five villages to which reference is made in numerous documents, and that the other villages were not part of the original endowment. As I said before, there is no evidence as to when the other villages came into the possession of the Thambirans and under what circumstances. The decision must depend upon. probabilities; but there are certain undisputed facts which would show that these other villages came into the possession of the Thambirans long after the original grant. Exhibit (AJ) is a stone inscription to be found in the Tiruvaduthurai Muttam which was a gift to Namasivaya by one Chockalinga Mudaliar who was the son of Coneri Mudaliar and who was the son of Thanappa Mudaliar. The date of this document is not given anywhere but it must have been two generations after the death of the original founder, Thanappa Mudaliar. We may take it, it was about the end of the 18th century. If the Mutt was founded about that time, it was only natural that the disciples of the Mutt, should make grants for the performance of the puja in the temple and should make that gift through their religious preceptor who was then in Madura, and as the Oochakala service and Ardajama service are very imporant rituals in the temple, devotees would have been anxious to supplement the funds of that Kattalai by making grants. This probably accounts for the Thambirans being sub-sequently appointed managers of the original endowment. Moreover the fact that these grants consisted of small portions of property in scattered villages is an indication that there was a large number of donors and that they did not come from a common source. As regards Kulipatti the position is somewhat different. It wasaninam village in the Saptur Zemindari. There was litigation concerning it; its income which was granted either by the Zemindar or by some other person was not being utilised by the Thambirans for Thanappa Mudali's Kattali; complaints were presented by the Zemindar to the Collector that the income was being misspent. Ultimately there was a suit which resulted in a compromise between the Thambiran and the Zemindar by which the income was permanently secured for the purposes of the Kattalai. It is very likely that the grant was anterior to the year 1811, because the subsequent compromise speaks of a previous one in that year. My conclusion is that these other villages including Kulipatti were granted to the agents of the Tiruvaduthurai Mutt who were in Madura, having regard to the fact that they were men of sanctity and in the hope that they would supplement the income from the original villages for the purposes of the sacred pujas at mid-day and at mid-night. The possession of these villages is no indication that the plaintiff was the hukdar in reference to the original five villages. On the other hand, the fact that they never had possession of these five villages while they were in possession of the other villages shows that they ware only paid managers with reference to the former.
25. I must now deal with the document on which the plaintiff's case practically rests (Exhibit B. 1). Mr. Rangachariar objected to the admissibility of this document on various grounds. I do not think the document comes under Section 35 of the Evidence Act. It is not an entry made by any public officer and as pointed out in Saraswati Dan v. Dhanpat Singh I.L.R. (1882) C. 431 unless the facts mentioned are within the personal knowledge of the public officer recording it, Section 35 will have no application. The decision of the Privy Council in Raja Muttu Ramalinga Setupati v. Periyanayagam Pillai would seem to show that documents of this description are not public documents. But I think the document is admissible under Section 13. There is an assertion of certain rights in it and plaintiff is entitled to rely on it to show that so long ago as 1836 the rights now claimed were asserted. I am also inclined to think that it can come in under Section 32 Clause 4. There is no doubt about its genuineness whatever may be the value to be attached to it. It comes from proper custody and in a case of this great magnitude it is desirable to have the document on record unless it is shown clearly that it is inadmissible. I there-fore proceed on the footing that Exhibit B, is admissible in evidence. I must now consider its probative value.
26. The Collector sent an am to the peishkar of the Madura Devasthanam on the 18th November 1886 asking him for particulars regarding the Thanappa Mudali Kattalai. He asked for the name of the person who founded the Kattalai, the name of the present hukdar, the name of the person who collected the money, the name of the person who received and expended the paditharam, the name of the person to whom accounts were rendered &c.; The peishkar asked Namasivaya who was the then Superintendent of the Kattalai to furnish the requisite information; Exhibit Bl, was the result of this request.
27. [His Lordship then examines the contents and the value of the document].
28. It seems to me that Namasivaya was drawing largely on imagination, partly for the purpose of saving himself from trouble which was pending regarding his mismanagement of the properties in his possession and partly to give himself an importance, which he did not possess, in the eyes of the Revenue officials. I am unable to attach any weight to the statement contained in this document unless they are corroborated in material particulars by other unimpeachable evidence. I may here refer to two documents which do not belong to this period; but which have a bearing on the statements contained in Exhibit B.
29. In Exhibit XVII Kandasawmi Mudali the grandson of Thana Koneri Mudali of Madura writing on the 24th July 1857 protested against the use of the word, hukdar, by the Thambirans who were managing the Kattalai. Exhibit XVII a of September 1857 is also to the same effect. If the original grant was made to the Adhinam and if it had been the hukdar for over a century, it is incredible that the descendants of the grantor would have protested against the use of the word hukdar by the Adhinam, especially as the Thambirans were the religious preceptors of the community to which the writer of these documents belonged. It seems to me that we have before us an example of the assumption in the first instance, of a designation which was innocuous at the commencement but to which subsequently an endeavour is being made to attach privileges and claims which were not originally contemplated.
30. I have now traced the history of the Kattalai down to 1837 when the statement of Namasivaya was given. I shall very briefly pass over the remaining period because it is not of any special significance except on the question of limitation. Nothing important happened between the years 1837 and 1840. In 1841, the Government resolved to divest themselves of responsibility for the Management of Devasthanams throughout the whole of the Madras Presidency; In Exhibit N1, dated the 6th October 1841, the Collector submitted to the Secretary to the Board of Revenue his proposals for the transfer of possession of Devastanam properties from Government to some persons. who can be entrusted with the management of their affairs. Then follows Exhibit N2 which is a letter from the Board to the Government sending up the recommendations of the Collector. Exhibit N3 is an extract from a letter from the Court of Directors dealing with the recommendations of the Madras Government. Exhibit N4 is from the Secretary to the Government of India to the Chief Secretary to the Madras Government. As a result of this correspondence, in 1842 one Muthuchella Thevan who was the Dewan of the Ramnad Zemindari was appointed Manager of the Devasthanam (see Exhibit M7). He was the trustee of the temple without any hereditary right thereto. That he took possession of the property including the Kattalai is not disputed. Some protest must have been made at this time regarding possession, because we find that in the Exhibit O series, final orders were passed in the year 1849 to the effect that possession must be in the general manager and not in the Superintendent of the Kattalai. This is what Exhibit O3 says: In the meantime same parties in whose names the Kattalais themselves are entered prefer a claim to possession instead of the Managers of the Devasthanams and Mr. Parker solicits instructions as to whether their wish should be complied with. The Board are of opinion that it may be productive of inconvenience if the administration of the institutions and of their endowments were entrusted to different hands. As a general rule, therefore, the Devasthanam villages, whether Sarva Inam or subject to jodi, should be made ever to the managers of the institutions to which they appertain, but should there be any special occasion, the claims of the parties in whose names the Kattalais are entered (by which, the Board presume, is meant the descendants of the parties by whom the endowments were made) seem to merit particular consideration, the Collector should report such instances for further orders. According to this document, notwithstanding the claims of the Superintendents for possession of the Kattalai properties, the Government deliberately put the General Manager in possession of them. It is important to note that from 1849, notwithstanding the saving clause which enabled persons who had any right to independent possession to come forward and to convince the Collector of their rights, none of the Thambirans had put forward a hereditary right to the possession of the villages. If we contrast this attitude with that of the disciples of one Gnanasambanda Pandaram who founded a Kattalai and who claimed independent possession as against the manager and succeeded in establishing it there can be no doubt that the Thambirans never had believed they had a hereditary right to possession as trustees of the Kattalai. After 1849 there were a number of general managers or trustees who managed the temple properties including the Kattalai villages. It is only necessary to point out that the persons who were appointed in 1842 and who remained in possession after 1849 were really the trustees of the temple--See Exhibit N7. Then Act XX of 1863 was passed and under it a committee was appointed for this temple; the committee appointed managers for this Devasthanam from time to time in the same way as the Government did. It is true that in some years the committee were directly in possession of the temple villages. Their possession must be taken to have been as de facto trustees. Anyhow from the year 1842 when the Government handed over management to the person whom they appointed as trustees or general manager of the temple and when in the year 1849 they definitely refused to recognise the right of the Superintendents of Kattalais to be in possession, the temple trustee's possession was not on behalf of the plaintiff or with his permission
31. There is only one other aspect of the case to be considered before I deal with the question of limitation. It is well settled that if there is no evidence regarding the devolution of management at the time of the grant, the usage of the institution must be the guide. This was laid down in Nilakandan v. Padmanabha I.L.R. (1890) M. 153 and Nilakandan Nambudiripad v. Padmanabha Ravi Varma I.L.R. (1895) M. 1.
32. What has been the course of management in this institution? As I pointed out more than once, there is no evidence that the founder prescribed any particular mode of devolution. From 1735 to 1800, possession was in the hands of persons who did not recognise the right of the founder of the Kattalai or even of the temple. From 1800 the Superintendents of the Kattalai were not in actual physical possession of the villages. We find that the Superintendent was a salaried officer. There is evidence that as regards dignities, the general manager took precedence over the Kattalai manager. We find that the funds of the villages were used, not only for the purpose of the particular Kattalai, but for the general purposes of the temple, such as sanction, keeping of a garden (Exhibit AA6), general repairs (Exhibits G and Gl), lighting (Exhibits XXXIVA2 and XXXIVd), employing watchmen (Exhibits XXXIV and XXXIVh), court expenses (Exhibit AA10), repairing of vehicles and so on--thus showing that the income was regarded as part of the Devasthanam endowment. From these facts it is clear that the usage of the institution does not show any right in the Superintendents of the Kattalai, whether they called themselves hukdars or not, to remain in possession of the villages appertaining to the Kattalai, or to receive the income of the villages themselves; on the other hand the usage indicates that the general manager of the temple was regarded as the person entitled to possession and management. My conclusion on the facts is that the plaintiff has not established his right to be trustee of the Kattalai.
33. I do not attach much weight to the circumstances pointed out by the District Judge in paragraphs 35 and 36 of his judgment. They no doubt show that the Government scrutinised the minutest details of the management of the Kattalai. The regret is that such supervision and control ceased in 1842. Till then, the Government regarded themselves as being in the position of the ancient sovereigns of India. These latter managed the Devasthanams directly, as is being done to-day in Mysore and Travancore: The documents referred to by the District Judge show that the Government thought it was their duty to see that the income from the endowments was scrupulously applied towards the expenses of the Devasthanam: The acts of interference were not in derogation of hereditary rights, any there were, but in furtherance of the right of over-lordship which was inherited from the Ruling Chiefs of India: Venkatabala Krishna Chettyar v. Kaliyana Rama Aiyangar (1868) 5 M.H.C.R. 48 shows that similar acts of supervision were not to be considered as depriving of their hereditary right, the persons entitled to it.
34. Upon my finding on the facts, the question of law does not arise, but I should like to give my decision upon that question also having regard to the fact that the learned Chief Justice is inclined to take a different view of the facts: The question of law may be looked at from two positions--one as affecting prescription, the other, limitation. Mr. S. Srinivasa Aiyangar contended that as the plaintiff through his agent, the Thambiran, was in possession of part of the properties of the endowment and had also performed part of the functions, of the office appertaining to the hukdarship of the Kattalai, there could be no adverse possession. The contention of the learned vakil is that a trustee can be totally deprived of his rights by another, but there cannot be a partial deprivation of the functions of the office and a partial acquisition of rights appertaining to that office. Neither he nor Mr. K. Srinivasa Aiyangar who argued this point in reply quoted any authority for this position. They said that they were unable to find any direct authority, and one may take it that what the learned vakils were unable to find, does not exist. I am unable to say that such a right cannot be acquired by prescription. In the case of a landlord, it is now well established that although he may be in receipt of rent, a person can prescribe as against him the limited rights of a tenant (vide Thakore Fatesingji Dipsanji v. Bamanji Ardeshir Dalai I.L.R. (1901) B. 515 Ibharan Singh v. Ntlmoney Balidar I.L.R. (1908) C. 470 Subbayya v. Madduletiah I.L.R. (1907) M.L.J. 469. This amounts to a partial deprivation of the right of the owner and a partial acquisition of that right by another; similarly other limited rights derogating from full ownership can be prescribed. In Subbaroya Chetty and Ors. v. Aiyaswami Aiyar and Anr. I.L.R. (1908) M. 86 it was decided that a widow's estate can be acquired by prescription. It has also been held that where a person who is the real owner of the property holds it in the belief that he is only a tenant, he will acquire a right to the property only as such tenant and that the right as owner can be acquired by another. (See Secretary of State for India v. Krishnamoni Gupta I.L.R. (1902) C. 518. The ratio decidendi of these pronouncements is that the fact that a person is in possession of property is no obstacle to the acquisition of partial rights in it. Applying this principle, I fail to see why the hukdar of the Thanappa Mudali Kattalai could not be deprived of his right to possession whilst still retaining his right to the other dignities connected with the office, and why the general manager and the trustee of the temple is not entitled to acquire that possession adversely.
35. Much reliance was placed upon the decision of their Lordships of the Judicial Committee in Bhanaji Thakur v. Jharula Das (1914) 18 C.W.N. 1029. In that case, the office of Panda was capable of being held only by a Brahmin. The co-owners of that office were in the habit of utilising the surplus funds for their own use. A right in the surplus fund was sold to a non-Brahmin, and he was in receipt of the income of the share sold to him. Their lordships of the Judicial Committee held that the receipt of the income did not give a right to the office of Panda, because, they pointed out, that the office of Panda could not be acquired by such a person. I do not think that that case really helps the plaintiff. The judgment says: the right to the office of shebait did not arise from or depend upon a share of the surplus of the daily income from the offerings to the temple although the right to receive daily a share of the net income from the offerings to the temple was attached to and dependent on the possession of the right to the shebaitship.... By adversely taking and appropriating to his own use a share of the surplus daily income from the offerings, Jharula Das acquired no title and no right to a share of that income... it did not constitute him the shebait for the time being or affect in any way the title to the office. This case only lays down that the receipt of the income from the office did not constitute the shebaitship. I do not think that that case is an authority for the position that an office cannot be split up and that a right to a portion of it cannot be acquired by prescription. The case in Gnana Sambanda Pandara Sannadhi v. Velu Pandaram I.L.R. (1899) M. 271 only lays down that there is no distinction between the claim to the office and the claim to the property in regard to the application of Article 124. It does not follow from that, that the claim to the property cannot be dissociated from the claim to the office. The decision in Raghunatha Chariar v. Ramanuja Chariar (1908) 19 M.L.J. 257 and Kamalathammal v. Krishna Pillai : (1910)20MLJ781 do not take the matter any further. The decision in Mulji Bhulabhai v. Manohar Ganesh I.L.R. (1887) B. 322 does not affect the present case. Apart from the observation that the right to the property inheres in the idol, which to a certain extent cannot be controverted, it is no authority for the position that there cannot be adverse possession with reference to the right of management of a trustee. On the other hand, we have the authority of Alagirisami Naicker v. Sundareswara Aiyar I.L.R. (1898) M. 278 which holds that a joint trusteeship can be acquired with another (see also Kantian v. Nilakandan I.L.R. (1883) M. 337 Thuppan Nambudripad v. Itticheri Amma I.L.R. (1812) M. 373 and Jagan Nath Das v. Birbhadra Das I.L.R. (1892) C. 776). I am therefore of opinion that even though the hukdar was in possession of some of the properties and was performing some of the functions pertaining to the office, there is no principle or authority which compels us to hold that his other rights could not have been acquired by prescription against him. The quotation from Bacon's Abridgment regarding incompatibility does not apply to the present case. There is nothing incompatible in the trustee of a temple holding possession of the villages which may rightly be claimed to belong to a Subordinate Superintendent.
36. I think upon another ground, that of limitation, the plaintiff's suit fails. Mr. Rangachariar contended that the proper article applicable was 142. Mr, Srinivasa Aiyangar on the other hand, argued that Section 10 of the Limitation Act would apply, and that there was no bar of limitation. It has to be remembered that there is no complaint in this case (the contention relating to mismanagement and misapplication of funds were given up in the Court below) that the income of the villages is not being utilised for the purpose of the Kattalai; this is not a suit, therefore, by the plaintiff to recover the property for the Kattalai as against a trespasser, who claims it for himself. The profits of the property are being utilised for the purpose of the trust only; the person who so utilises them is different from the person who claims a right to utilise them in that way. In such a case, if possession was lost more than 12 years before suit, the claim will be barred by limitation, In Balwant Rao Bishwant Chandra Char v. Puran Mal Chamber it is pointed out: here there is no question of recovering the property for the trusts of the endowment, because the defendant admits that he is a trustee and says that he is applying the property to the trusts of the endowment. There is no evidence that he is not applying the property to the trusts of the endowment, and there is no reason to conclude that the property would be more applied to those trusts if the plaintiff were to succeed in his suit than it is at this moment. The plaintiff is suing only for his own personal right to manage or in some way to control the management of the endowment. The conclusion of the Judicial Committee was that the suit would be barred either by six or twelve years limitation. The principle of that decision has been followed in Karimshah v. Nattan I.L.R. (1883) M. 417 Nilakandan v. Padmanabham I.L.R. (1890) M. 153 and in Sankaran v. Krishna I.L.R. (1893) M. 456. In the present case, the claim of the plaintiff, at its best, only amounts to this: The first defendant who is the general trustee is not entitled to manage the plaint villages and to apply the proceeds for the purposes of the Kattalai, but it is the plaintiff's prerogative to have the management in his own hands and to apply the income himself. The case is exactly covered by the dictum of the Privy Council already referred to and by the other cases following it. I therefore, hold that, even if the plaintiff be regarded as the hukdar of the Kattalai villages and as being entitled in his own right to their possession, inasmuch as the Government expressly vetoed his right in 1849 and handed over possession to the general trustee of the temple, his right to recover possession arose in 1849 and as he did not choose to bring the suit within 12 years of that period, his claim is barred by limitation. I therefore agree with the learned Chief Justice upon this question of limitation and in his conclusion that the appeal should be dismissed with costs.