015-NLR-NLR-V-12-KURUKAL-v.-KURUKAL-et-al.pdf
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im.
November li.
Present: Mr. Justice Wendt and Mr. Justice Grenier.
KURUKAL v. KURUKAL ei al.
G., Jaffna, 4,484.
Uin&t. temple—Position of a manager—Rights of heirs of owner of landdedicated to a temple.
By the law of inheritance under the Thesawalama the plaintiffand the two defendants became entitled each to a one-third shareof the land on which a temple stood. But one Parupathe Aminaexercised for several years the office of manager of this temple,—Held, that in the absence of any rule of positive law on thesubject of the rights of management of Hindu temples and theirtemporalities, and also in the absence of any regular deed ofappointment in favour of Parupathe Amina by the members ofcongregation of the temple in question, it was difficult to assignto Parupathe Amma the distinct legal character of a trusteeas the term is understood in our law. Her true and only positionwas that of de facto manager during her lifetime, and she acquiredno prescriptive rights. And on her death, by the law of inheritanceunder the Thesawalamai, the plaintiff and the two defendantseach became entitled to a one-third share of the land on which thetemple stood, and also to one-third share of the income and produceofJ>he temple and its temporalities.
A
PPEAL from a judgment of the District Judge. The factsfully appear in the judgments.
Van Langenberg, for the plaintiff, appellant.
The Hon. Mr. Kanagasabai, for the defendants, respondents.
Cur. adv. wilt.
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November 14, 1908. Gbenieb J.—
The faots material to this appeal are briefly these. The plaintiffclaimed to be the sole manager and trustee of the temple calledMuttuvinayakapillaia Kovil, and alleged that the defendants, whomhe had appointed co-trustees and managers with himself by deedNo. 6,664, dated December 18,1902, and whose appointment he hadcancelled by deed No. 823, dated June 2, 1903, continued to be inpossession of the temple and premises, and had unlawfully takenand appropriated to themselves the income and produce thereof,which the plaintiff estimated at Rs. 10 per mensem. The defen-dants pleaded, amongst other matters, that their-appointment bythe deed of 1902 was irrevocable, and they claimed to be entitledto two-thirds share of the trusteeship and management of thetemple and premises, conceding to the plaintiff the remaining one-third share. There have been two trials in this case. At the firsttrial the issues agreed upon were :— .
Had the plaintiff the right to revoke the deed of 1902 ?
Was the deed of revocation valid ?
Was there consideration for the deed of 1902 ?
Is it irrevocable whether there was consideration or not ?
The District Judge held that the deed of 1902 was not revocable,and without calling on the defendants dismissed the action. Hedid not deal with the 3rd and 4th issues. This Court sent the caseback for trial on the 3rd and 4th issues and on the further issue:“ Was the deed of 1894 wholly or partially invalid as against thedefendants, and are the defendants entitled to share in the manage-ment of the temple and property as heirs of Suppiah MuttuswamyAiyer ? ”
The facts are fully stated in the judgment of the Chief Justice,and it is needless for me therefore to repeat them, except so faras they are relevant to the present appeal. It would appear thatthe temple in question was founded by Suppiah Muttuswamy Aiyerand his wife Parupathe Amma between the years 1860 and 1867.The temple now stands on property partly belonging to two persons,Samugam Aiyer Ananda Chuppayier and his wife Sirapayi Amma,who executed a transfer for the same “ in the name of the PilliyaiTemple ” on June 1, 1870. The whole of the land on which thetemple stands is in extent 1 lachams. The deed of June 1,1870, covers an extent of 3$ lachams. The rest of the land, asfound by the District Judge and as the evidence shows, belongedto Muttuswamy Aiyer and his two brothers Sanmugam Kurukal,father of the plaintiff and defendants, and Irakunathar AiyerMuttuswamy, and Irakunathar died issueless, and plaintiff anddefendants are their only heirs. We have, therefore, this factestablished, apart from the question of the right to the managementof the temple, that the land on which the temple stands was the7_ 0 2
1908.
November 14.
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isos. property of three brothers, who are now represented by the plaintiff
November 14. and the two defendants.
Grenier J According to the ordinary rules of succession which obtain in theNorthern Province, the plaintiff and the defendants would be entitledeach to a one-third share of the land. The ohief difficulty whichpresents itself in this case is in connection with the presence ofParupathe Amma, who undoubtedly exercised for several years theoffice of manager of this temple. It was an extraordinary role forher to assume, because, as we all know, females seldom or nevertake an active part in the management of temples ; but ParupatheAmma was apparently a strong-minded lady, who devoted herself tothe task of managing this temple for several years. It is impossibleto say under what circumstances she assumed the managership,whether she was moved by intense piety, or a desire to carryout the wishes of her husband; but the fact remains that after herhusband’s death, which took place in 1881, she assumed the solemanagement of this temple. It is reasonable to suppose thatduring her husband’s lifetime she occupied a subordinate position,and although she might have helped her husband in the manage-ment, she never pretended to be manager to his exclusion. We are,therefore, concerned with what she did after her husband’s deathin 1881 and up to her death about six or seven years ago, say in1899. We find that on August 31,1894, Parupathe Amma appointedthe plaintiff co-manager and co-trustee with her during herlifetime, and sole manager and trustee after her death. Now, it, cannot be denied that she had the right to make the former appoint-ment, because she was de facto manager at the time, and there wasnothing to prevent her appointing the plaintiff to act with her ,there being no opposition from any quarter. Her husband haddied in 1881, and she had been manager for nearly thirteen yearson the date that she executed the deed dated August 31, 1894, so,looking at the right of management as a right that may be acquiredby long use and possession, there can be little doubt that in 1894Parupathe Amma was entitled to appoint plaintiff as co-trustee.It was argued for the respondents that Parupathe Amma had noright or interest at all in the management of the temple, and thatshe being a childless widow had no life interest either in any propertybelonging to her husband. I do not agree with this contention, noexpress authorities having been cited to us in support of it; and,in my opinion, Parupathe Amma having been de facto the manageressfrom the date of her husband’s death was well within her rights inappointing plaintiff co-manager. We find that Parupathe Ammaand plaintiff acted together until the death of the former in June,1899, and thereafter the plaintiff continued as sole manager andtrustee of the temple and its property.
At this time the defendants had apparently not advanced anyplaint either to the management of the temple or to share in the
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income and produce oi the temporalities belonging to it, because1908•
on December 18,1902, we find that the plaintiff by deed No. 6,664 November 14.appointed the defendants as co-managers and trustees with himself,j
and as such the defendants entered upon the said office and possessionof the said temple and property. On June 2, 1903, the plaintiffby deed No. 823 cancelled the appointment of the defendants, andrequired the defendants to quit the said temple and premises,which they refused to do. On the first appeal it was pointed outby the Court in the judgment of the Chief Justice that the appoint-ment made by the deed of 1902 was not valid under the deed of1894, because the power given by the latter is only to appoint newtrustees in the place of the plaintiff, whereas by the deed of 1902the plaintiff purported to appoint the defendants to act with him.
In the course of his judgment the Chief Justice said: “I think thatas this is a case of a trust on which other persons not before the Court,namely, other beneficiaries, are interested, we are bound to take noteof this objection to the defendant’s title, and that, although thisis not a ground which the plaintiff himself put forward, we musthold that the deed of 1902 was not a valid exercise of the power•given by that of 1894.” In fact no beneficiaries have come forward,and the case must be decided on between the parties on the record.
The Chief Justice also said that the defendants! had set up anotherdefence, besides that of the irrevocability of the deed of 1902, andthat in substance they claimed two-thirds share in the managementas heirs of Muttuswamy Aiyer. The evidence shows that the deedof 1902 was executed for valuable consideration, and was, besides,an admission on the part of the plaintiff that the defendants wereentitled to the same share as the management, as otherwise I fadto see why the plaintiff should have selected the two defendantsto act as co-managers with him. Even assuming that the deed of1902 was invalid on the ground that the plaintiff had gone beyondthe power given him by Parupathe Amma by the deed of 1894,there was valuable consideration for the same, and it was irrevocable,at least during the lifetime of the plaintiff, looking at the matterfrom a purely acquitable point of view. It seems to me, however,that it is all important to ascertain Parupathe Amma’s true positionin regard to her management of the temple before the questionsinvolved in this case can be decided.
In the absence of any rule of positive law on the subjects of therights of management of Hindu temples and their temporalities,and also in the absence of any regular deed of appointment infavour of Parupathe Amma by the members of the congregation ofthe temple in question, it is very difficult to assign to Parupathe .
Amma the distinct legal character of a trustee as the term is under-stood in our law. That she was de fado manager there can be nodoubt, as I have already said. Presumably, the land or the greaterportion of it on which the temple stands was moditam, or hereditary
ms.
November 14.
Grenikr J.
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property, belonging originally to the ancestors of Parupathe Amma’shusband and his two brothers, Irakonathar and Sanmugam Kuru-ltai. Her piety might have moved her to build a temple on theland in conjunction with her husband; they both appear to havepaid for a portion of the land (deed P 2 A); and they both managedthe affairs of the temple during their lifetime. Can it be said thatParupathe Amma was ignorant of the fact that the property belongedto her husband and his two brothers, and that it was simply theaccident of her husband building and dedicating and managing thistemple which placed her in the position of sole manager after hisdeath ? And when she executed the deed of 1891, did she forgetthat the land belonged to her husband and his two brothers, andthat one of them, Sanmugam Kurukal, had left as his heirs theplaintiff and the two defendants ? It is probable, I might almostsay it is certain, that Parupathe Amma looked upon plaintiff asher own son, and gave him the preference in the management ofthe temple over the two defendants. She could not have beenunaware of the existence of the two defendants, and whateverreason she may have had for overlooking them, it is clear that shehad the power, if she was so inclined, to give the right of manage-ment to the plaintiff and the two defendants jointly. But thatpower was undoubtedly subject to the interests which all three ofthem had acquired by right of inheritance from Sanmugam Kurukal,Muttuswamy Aiyer, and Irakunathar, and whioh were not displacedby Parupathe Amma continuing to be manager after her husband’sdeath. I apprehend, therefore, that Parupathe Amma’s true andonly position was that of de facto manager during her lifetime;that she had acquired no prescriptive rights; and that on her deaththe ordinary law of inheritance under the Thesawalamai came intooperation, and the plaintiff and the two defendants each becameentitled to a one-third share of the land on which the temple stands,as also to a one-third share of the income and produce of the templeand its temporalities.
The right of management must consequently be shared by theparties equally. Perhaps at some future time it may be thoughtadvisable to introduce legislation regulating the management ofHindu temples and their temporalities ; but in the present state ofthe law, or rather in the absence of any law on the subject, we canonly deal with the case so as to do substantial justice to both theplaintiff and the defendants.
-I have accordingly endeavoured to apply the principles of naturaljustice and equity ; and I think a declaration to the effect that theplaintiff is entitled to a one-third share in the management ofthe temple and its property and the defendants to two-thirdsshare between themselves would also be strictly in conformitywith the law of inheritance which governs the Tamils of theNorth.
I find that the defendants in their answer relied strongly on thedeed of 1902 as giving them a two-thirds share in the managementof the temple and its property. I think that the plaintiff wouldhave been well advised if he had conceded to the defendants atwo-thirds share at an early stage of these proceedings, consideringthat he had himself given the defendants that share by his deedof 1902. The ground upon which the plaintiff cancelled the appoint-ments of the defendants, namely, that they had unlawfully takenand* appropriated to themselves the income and produce, has notbeen made good by any evidence that I can find in the record.
For the reasons I have given I would vary the judgment of theCourt below by declaring the plaintiff entitled to a one-thirdshare of the right of management of the temple in question and ofthe income and produce of the temple and its property, and eachof the defendants to a one-third share thereof. Each party willbear his own costs both in this Court and in the Court below.
Wendt J.—I agree.
Judgment varied.
1908.
November 14.Obenucb J.