John Edge, Kt., C.J.
1. This was a suit brought by the plaintiff under Section 14 of Act No. XX of 1863, in the Court of the District Judge of Gorakhpur. The object, of the suit was to remove certain persons from the office of trustees of a temple, to have certain assignments and incumbrances created by the trustees for the time being and affecting lands the subject of the endowment of the temple set aside and declared invalid as against the temple and the trusts, and to obtain the appointment of a new trustee or trustees. There was also a prayer to have an award declared as inoperative and not binding on the trust property. The plaintiff is the successor in title of the Maharaja of Bettia who had endowed the temple at Chauria with in the Gorakhpur district with certain lands, which were situated beyond the ordinary jurisdiction of the District Court of Gorakhpur and are in fact in lower Bengal.
2. The allegations upon which the suit was brought were, if substantiated, allegations of misfeasance. The persons acting as trustees for the time being had dealt with the endowed property as if it were their own private property unaffected by any trust: they had dealt with it regardless of the trusts which affected the lands the subject of the endowment. The Maharaja who created the endowment had, prior to the creation of the endowment, supported the temple at Chauria, and the assignment of the lands for the purposes of the endowment was made as a more convenient method of providing an endowment for the shrine. What was done by the persons for the time being holding the lands in trust for the shrine is fully stated in the judgment of the District Judge. I find as a fact that the assignments, incumbrances, leases and award were the result of breaches of trust on the part of the persons for the time being bound to administer the endowment for the purposes of the temple.
3. The suit was not defended by those who were charged as trustees. It was defended by sheo baran Rai, who was the person who had principally benefitted by the breaches of trust complained of. The District Judge granted to some extent some of the reliefs prayed for, but refused the other reliefs, being apparently of opinion that the granting of those reliefs was in this case beyond his jurisdiction.
4. It was contended on behalf of the respondents that the District Judge had no jurisdiction at all in the matter. That contention was based on the argument that Act No. XX of 1863 did not apply, as it was not shown that the endowment in question was one to which the Board of Revenue had appointed a trustee, and that the nomination of a trustee was not shown to have been vested in the Board of Revenue under Regulation No. XIX of 1810. The jurisdiction of the District Judge was also questioned on another ground, viz., that the shrine in which the Thakurji was had disappeared and the image had been removed to private premises.
5. As to the latter point, to take it first, I find that, although the temple has disappeared, possibly owing to the breaches of trust of those whose duty it was to administer the endowment for the benefit of the Thakurji, yet as a fact the Thakurji still exists and is worshipped, and I hold that the mere fact that the walls of the original building in which the shrine was have disappeared does not take the case out of the provisions of Act No. XX of 1863. In these cases of endowment it is not the walls which are endowed; it is the Thakurji. I am speaking of course of the case of Hindu endowments.
6. In the course of the argument we were referred to a number of decisions. Some of them I shall deal with in my judgment. The others, as to which I do not consider it necessary to express an opinion are the following: Ashgar Ali v. Delroos Banoo Begum, 15 B.L.R. 167 : S.C.I.L.R. 3 Cal. 324; Rajendro Nath Dutt v. Shaikh Mahomed Lal, I.L.R. 8 Cal. 42; Protap Chandra Misser v. Brojo Nath Misser I.L.R. 19 Cal. 275, and Mathu v. Ganga-thara I.L.R. 17 Mad. 95.
7. It appears to me that Section 14 of Act No. XX of 1863 is not confined to those endowments the nomination to which has been exercised by or had vested in the Board of Revenue under Regulation No. XIX of 1810. In my opinion the decision of Norman, J., in Ganes Singh v. Ramgopal Singh 5 B.L.R. App. 55, that in order to bring a suit under Act No. XX of 1863, it is not necessary to show that the temple was one which was formerly under the control of the Board of Revenue, is correct. That question was further considered by Mitter and Maclean, JJ., in Dhurrum Singh v. Kissen Singh I.L.R.7 Cal. 767, and, so far as that decision affects the application of Section 14 of Act No. XX of 1863, I agree with it. It is true that in the case of Raghubar Dial v. Kesho Ramanuj Das I.L.R. 11 All. at p. 26, I expressed a different opinion as to the application of Section 14 of Act No. XX of 1863. In that case, although it was not necessary to consider the point, I expressed an opinion that Act No. XX of 1863 could not apply to any endowed temple which had come into existence after the passing of that Act. The two cases to which I have just referred have satisfied me that in that view I was wrong. In my opinion Section 14 of Act No. XX of 1863 does apply in this case, and that whether or not the Board of Revenue had under Regulation No. XIX of 1810 exercised or had vested in it the right to nominate to the trusteeship or the managership of the temple. Consequently, the Court of the District Judge of Gorakhpur, which was the principal Court of original civil jurisdiction within the limits of which the temple was situated within the meaning of Section 2 of Act No. XX of 1863, had jurisdiction to do all the acts which a Civil Court is empowered to do under Section 14 of that Act in this case, and further in my opinion, as ancillary to that jurisdiction, had jurisdiction to make such declarations and pass such orders as might be necessary for the effective application of Section 14 of Act No. XX of 1863, although the lands, the subject of the endowment, were situated beyond the territorial limits of the ordinary jurisdiction of the Court of Gorakhpur.
8. It was suggested that Section 539 of the Code of Civil Procedure applied in this case. In my opinion it did not. I think that point is answered by the decision in Lakshman Das Parash Ram v. Ganpalrav Krishna I.L.R. 8 Bom. 365, and by what was said in Jnwahra v. Akbar Husain I.L.R. 7 All. 178. To the same effect is an unreported decision of this Court. Taking the view of the facts which I do, which is also held by my brother Burkitt, I am of opinion that the District Judge had, and we in appeal have, ample jurisdiction to set aside these assignments, leases and incumbrances affecting the property the subject of the endowment, and also to declare that the award does not affect in law the endowed property.
9. It is well accepted law that when a Hindu creates an endowment of a temple or a shrine, or more strictly speaking of a Thakurji, and does not provide by the endowment for the nomination of a trustee or trustees being made by any person other than himself or his heirs, or being made by election amongst the disciples of the Thakurji, the nomination remains vested in the founder of the endowment and the right to nominate continues to his heirs. That was the principle accepted by their Lordships of the Privy Council in Gossamee Sree Greedharreejee v. Rumanlolljee Gossamee L.R. 16 I.A. 137 : Section C, I.L.R. Cal. 3.
10. We direct the removal of the defendants who are the existing trustees or managers of the temple; and acting on the petition of the plaintiff, who has nominated Rameshwar Misr, we appoint him to be trustee of the endowed property for the purpose of carrying out the intention of the founder. We declare that the award, the leases, the assignments and the incumbrances referred to in the plaint do not affect the endowed property or any part of it, and are not and will not be binding on the trustee for the time being appointed. We give the plaintiff a decree for possession in order that Rameshwar Misr, who is not a party to this suit, may be placed in possession of the endowed property as trustee. The claim for mesne profits is abandoned. To the above extent we vary the decree below and decree this appeal with costs in this Court and in the Court below.
11. I concur in the interpretation put by the learned Chief Justice on Act No. XX of 1863, and in the order proposed and in the reasons given therefor.