1. This is an appeal from the judgment of the Sub Court, Palghat in a suit under Section 92, Civil P.C., to remove the defendants from the trusteeship of the plaint temple and to prescribe a scheme for its management. The temple is that of Viswanathaswami. situated at the side of the Kalpathi river in Palghat. Admittedly it has been for a long time in the management of the defendants’ edom which is the Valia, Konikkal edom. Defendant 1 was sued, originally as the karnavan of that edom and defendant 2 as the actual manager of the temple affairs appointed as such by a tarwad karar. During the course of the suit, in July 1922, defendant 2 died, and defendant 1 succeeded him in the management of the temple. Defendant 1 therefore before us holds the double position of the karnavan of the Edom and the manager of the temple. Defendant 3 was added as the senior anandravan of the tarwad on the death of defendant 2. The plaintiffs are representative Brahmins from four villages, which lie round about the temple, from, which the officiating priests of the temple are drawn. They are in origin. East Coast Pattar Brahmins and not Nambudris of the West Coast. They are-representative worshippers and sue as. such. The claim in the plaint that the trusteeship was vested in the permanent residents of these villages and that the defendants’ edom has been managing only with their permission and subject, to their control. This was a subsidiary, issue to the main important issue,, namely, whether the temple is a public or a private one. Plaintiffs contend that it is public; the defendants that is it a. purely private institution in which the public have neither interests nor rights This was the first issue in the case. Issues 2, 3 and 4 are not pressed here. Issues 5 and 6 relate to specific charges of breaches of trust and issue 7 to the framing of a scheme. We shall take up issue 1 and before we come to discuss it one or two general remarks fall to be, made.
2. First we must rid ourselves of any notion that the idea of a private temple-is foreign to, or the fact of a private temple uncommon in, the Malabar-country. With its large family corporations or tarwads numbering hundreds of individuals it would be a very natural thing if such a corporation should establish and maintain a private temple for the use of themselves; and this in fact has often happened, as stated in most treatises on Malabar law and polity. Cases have also come up before this Court from the West Coast in which both sides have admitted a particular institution to be a private temple: see Vegnarama Dikshatar v. Gopala Pattar  8 M.L.W. 357, Raim Nambiar v. Narayana Nambiar  21 M.L.J. 585, and Appu Pattar v. Kurumba Umma  21 M.L.J. 588. But having premised this caution we must add there is certainly no presumption of law or fact that a temple in Malabar is either public or private. It will depend on the facts proved in each case. In our view it follows from this that evidence of comparison of the architecture, ritual, processions, gods, etc., in this temple with those of other temples either on the West Coast or elsewhere is not only irrelevant but may be misleading, and the Subordinate Judge has not sufficiently guarded against this. It is true that he ruled out, quite properly, by his order dated 16th October 1922, during the examination of D. W. 14, the first witness examined by this Judge, such comparative evidence regarding, for example the size of the lingam, prakarams, mantapams, Sri koils, Vigrahams, car and ear festivals, but unfortunately in judgment he has not carried out his own principle, and has relied, for example, on the size of the lingam, the form of puja, the number of times the puja is celebrated in the temple, the ritual and the architectural style as compared with those in other temples: see paras 9, 33, 40 and 51 of his judgment. To admit evidence of this sort is merely to add a further element of uncertainty to the case.
3. Whether other temples are public or private has to be decided on the facts of their own user and dedication, and in the last resort can be decided only by a Court of law in an action such as the present. And a Judge is not justified in assuming from his own knowledge or in inferring from the mere opinion of witnesses that such tad such temple put forward for purposes of comparison is public or is private. Public temples may have features reproduced in private temples and vice versa. To admit evidence that this feature of temple A or that feature of temple B appears or does not appear in the plaint temple only lays upon the Court the further difficult and irrelevant task of deciding whether temple A and temple B are public or private, when temples A and B are not at all concerned in this case or with the evidence given in ‘it; and it is merely calling on the parties to support a case already uncertain by calling in aid examples more uncertain still.
4. Even when the parties may be taken to have admitted or to be ready to admit, or when this Court has judicially held, that certain temples cited are public or are private, we think it better to exclude such comparative evidence. If the feature emphasized is a general characterstic of a public temple or of a private temple then it must bear in its own character some indicia of its public or private nature, and in that case these indicia and not the fact that they appear in other temples are the real indicia of the nature of the temple in which they appear. Into the matter of whether this High Court has judicially decided that a particular temple cited is private or is public we have therefore, not gone at length, but the defendants do cite one case in which they claim that the High Court has judicially decided that a certain temple in Malabar was private, namely Appu Pattar v. Kurumba Umma  21 M.L.J. 588. A perusal, however, of that case shows that there was no judicial decision on the point, as both parties to the suit there admitted the private character of the temple. Such an admission had not the force of a judgment ad rem. On this point we need say no more. We have therefore put aside altogether evidence of a comparative nature between the constitutional, architectural, ritual and other features of the plaint temple and those of other temples either on the West Coast or elsewere, and we have endeavoured to decide this case on the facts proved or admitted regarding the plaint temple itself, without comparing it with others.
5. We shall decide first what is the history and what are the characteristics of this temple and then come to the question of law as to whether the proper deduction from these facts is that the temple is a public one. The first important document is an inscription of grant of land to the temple which is found on a stone within the temple itself at the case of the flagstaff. The earlier part of this is now defaced and undecipherable, but a translation of the whole appears in Logan’s Manuals, Appendix 12, No. 8. It is dated 1464:. Evidence as to the portion still decipherable is given in P.W. 5 and his notes in the Epigraphia Indicia, which however are to some extent discounted by the fact that he did not himself go to the stone and see the inscription in situ. According to Logan’s translation the grant was under the orders of Ittikombi, Anandravans and Kalpathi Makkalavattangal, (the meaning of which term is uncertain) and the trustee appointed to sea to the proper administration of the grant are nephew Ittikombi, Anandravans and these Mukkalavattangal, and the grant is made under the protection of Chokkanathar, that is god Siva, Emur Bhagavati, and Melkarnavan, probably the Palghat Rajah. It would appear therefrom that the grant was by a member of the Palghat Rajah’s family; and since the management has always been in the hands of the defendants’ edom we may take it that it was by a member of that edom. That the grantor was the Rajah himself as claimed by the defendants is not clear from the inscription. On the one hand, if the grant was by the Rajah as stanee there would seam to be no point in adding Anandravans since the stanee will have no Anandravans, and he would hardly grant property which appears to have been the property of the defendant edom. On the other hand, tradition, according to P.W. 4, has it that the grant was by a Rajah who was a member of the defendants’ edom. We must leave the matter in some uncertainty, but probably tradition is right, and to reject it, as the Subordinate Judge does in para. 18, merely because defendant 2 has not heard that the donor was the Rajah is not quite justified. That the trustee was the defendants’ edom, as claimed by the defendants, is also certainly not clear from Ex. ]?. itself, but is very probable since it is admitted that this edom has been the hereditary manager of this temple from time immemorial.
6. The inscription to our minds makes two facts also clear: first that the temple was in existence before the date of the grant; and second that the Brahmins in the four villages were settled there already at the date of the grant. How or why these Brahmins from the East Coast settled there is obscure. The reason is perhaps what is hinted at in Ramachandra Ayyar’s book on Malabar Law: see Introduction, para. 38, in which he mentions that the family of the Akathethara Nairs, that is the defendants’ edom, has some hereditary taint, so that the West Coast Brahmins will not serve it, and that, therefore, it had to call Brahmins from the East coast and settle them in Palghat. This view has support from the facts that not only are these Brahmins settled in the villages round the plaint temple, but that their own village temples are, as will be seen later, in receipt of contributions from the plaint temple. If the defendants’ family is the owner of the plaint temple and if that is entirely a private one, there is no reason why it should support the village temples of the East Coast Brahmins unless they or their tarwad had been to some decree responsible for these people settling in these villages. Neither party was concerned before us to dispute that the East Coast Brahmins were brought to Palghat by the family of the Palghat Rajah at some time or other to supply the place of the local Brahmins who for some reason would not officiate for the family.
7. In the history of the temple we now leap 350 years and come to Ex B, an extract dated 21st March 1810 from the Register of Sarvamaniyam (i. e, rent-free) lands granted to temples, etc; in other words an inam register. The grant is claimed to be “by order of the Nawab Mudu Khan Kiledar.” Both sides agree, and it is supported by Ex, D to be considered later, that this man was probably an officer of Tippu Sultan in whose dominion Malabar was included in 1766, and that the grant was a grant by Tippu himself. Prior to Tippu’s time there was probably no land revenue assessment as such: see a letter printed at page 172 of Logan’s Manual, Vol. 3, and the Malabar Gazetteer p. 299. Land revenue was apparently first imposed by Tippu, but, as is usual in this country, lands dedicated to religious charity, etc., were exempted from it, and Ex. B is a register of such lands. The date of grant by Tippu is 1772, and from Ex. B it appears that the grantee was one Gambheeriyan Shuppu Pattar, evidently an East Coast Brahmin. The defendants claim that ha was the kariasthan of the tarwad, but that is a pure surmise unjustifiable unless on other evidence it is demonstrated that he could not but have been the kariasthan. We come next to Ex. D, the proceedings of the British Government Inam Commissioner dated 1866. That in effect confirms Tippu’s grant of 1772 and is based on some Mahratta pymash accounts in 1807 on which no doubt Ex. B was also based. These accounts were also the basis of the refusal to enlarge the extent of land covered by the inam, as appears from the correspondence appended to Ex. D between the Collector of Malabar and the Inam Commissioner, and the area was thereby fixed at 108 acres, which is practically the extent of 1,000, paras found in Ex. B. In the first letter of the Collector dated 22nd February 1867 appended to Ex. D we find for the first time, so far as the evidence in this case goes, the defendants’ edom mentioned, and the original grantor is now stated to have belonged to the Konikkal edom, that is, the defendants’ edom, Some correspondence just prior to Ex. D. Ex. 266 (a) and 334 resulting in a statement, Ex. 348, indicates that the then revenue authorities regarded the defendants’ edom as the proper source of information for the history of the inam grant, and the statement, Ex. 348, sent in response to a request for information claims that the first inamdar, this Gambheeriyan Suppu Pattar, the name in Ex. B, was the kariasthan of the defendants’ edom. Defendants naturally appeal to this document as evidence that the first inamdar was merely the agent of their edom, but such a statement is more than an assertion of the defendants’ title and is no proof of it, and is consequently of small probative value: see Pacha Sahib v. Mahamad Ruhimuddin Sahib A.I.R. 1924 Mad. 491. The Inam Commissioner in his title-deed confirmed the inam not in the name of the edom, but in the name of the uralars or trustees for the time being.” The inam was styled as Devadayam Inam and was confirmed as such and for the upkeep of the plaint temple.
8. Now we regard these inam proceedings as of great importance on this question as to whether the temple is public or private. Such an inam grant meant the remission of public revenue on assessed land and the duty of the Inam Commissioner was on the one side to see that no remission of public revenue was granted except for a genuinely public purpose and on the other that a genuine public charitable and religious institution should have the benefit of such remission. As important part of the Inam Commissioner’s work was, therefore, to decide whether the inam land was really dedicated for a public purpose, and the presumption of fact must be that the inam was granted on the representation by the inamdar that the temple property was public property and not his own private property. It is difficult to conceive that such a grant, amounting to about Rs. 372 annually-see Ex. C-could have been made on land which was, purely the private property of the tarwad, set apart for the upkeep of a purely private worshipping place of its own. Such a private institution could have no claim on public funds. It is possible of course to surmise, and it is no more than a surmise, that the Palghat Rajah might have remitted tax on land dedicated to a private temple of the edom, with which he was himself associated, but there is not a scrap of evidence to indicate that that was the nature of the grant by Tippu or the British Government, or in fact that there was before the time of Tippu any remission of tax over these lands at all. The fact of the inam grant is in our view strong prima facie evidence that the temple was regarded as, and found by the Inam Commissioner to be, a public institution. The mere statement in Ex. 348 that the edom is the inamdar will not avail against the legitimate inference to be drawn from the Inam Commissioner’s order.
9. No doubt, on the assumption that the inamdar was the edom and not the trustee for the time being, the inamdar was not concerned to refuse the benefit of getting land revenue remitted on his private property; but we must regard the order of the Inam Commissioner as a definite refusal by him to accept the view that the property was private property if it was then seriously put forward. It is obviously not a case where the inamdar was doing any personal service in return for the remission of revenue, and it is not in consideration of any service to the temple in the capacity of trustees that the inam was granted. Had that been the ratio decidendi of the Inam Commissioner’s order, the inam would have been granted eo nomine to the edom for its services as trustee. Ex. D and Ex. C which follow from it make it quite clear to our minds that the inamdar is not the edom in perpetuity, but the trustee for the time being who is responsible for the upkeep of the temple. (Here their Lordships discussed the evidence in detail and proceeded to state as follows ) Having discussed the facts, we shall now come briefly to what we consider are the proper inferences therefrom, in order to decide the issue whether the temple is public or private. We may state here by way of premise that the defendants have before us abandoned the categorical assertion in the written statement of defendant 2 that there is no trust at all, but that the temple and all its property is the absolute chattel of the tarwad. The death of defendant 2 has no doubt eased the position of defendant 1. In this Court, defendant 1 has endeavoured to make out a case of private trust, so far divesting the tarwad of its ownership of the temple property, and a dedication and user of this temple and its property purely for the family god of the tarwad, of which trust the tarwad karnavan has always been and is the hereditary trustee. Whether the idea of such a private trust, which is largely a creature of statute, is one that would enter into the mind of an ordinary Hindu we need not pause to consider, but we may remark that the defendants evidently felt so far the force of the facts against them that they could not maintain the original plea put forward by the actual manager that there is no trust and no divesting of the property in favour of the god at all. Such a divesting once made is under Hindu law irrevocable: see Thackersey Dewraj v. Hurbhum Nursey  8 Bom. 432.
10. In drawing our inferences from the facts it is unnecessary for us to go so far in this case as to say with Sadasiver, J., in Subramania Iyer v. Lamskamana Goundan  M.W.N. 899, that even in Malabar the presumption is that a temple is public until the contrary is proved, and we are quite prepared, as we have said, to recognize that in Malabar there are such things as private temples for the exclusive use of a tarwad or family as distinct from mere shrines in a family house. But essentially the question whether a temple is public or private is one of fact to be decided on the evidence, evidence that, is, of dedication, if available, of actual user and of public repute. When all castes of the Hindu public for centuries have been freely using a temple and have never been debarred from using it and there is no evidence that they do so with permission it would require strong evidence to persuade a Court that the temple is nevertheless intended for the use of one isolated caste or tarwad or family.
11. The evidence in this case to prove such public character and user of the plaint temple is in our opinion strong. It proves: (1) that the temple was in existence prior to 1464 and was then endowed-with the present plaint property under Ex. F., which does not indicate that the property dedicated was still remaining the private property of the donors or that’ the dedication was purely for the benefit of the tarwad of the donor; (2) that the donor published to the world his gift by inscribing it on imperishable stone in a place in the temple precincts where all the general public may go that Tippu Sultan granted and the British Government confirmed in favour of this institution a considerable remission of public revenue; (4) that in 1833 Government exercised for a short period official control over its management; (5) that from time immemorial the public have freely used the temple, without any consciousness that it was other than public; (6) that no claim to exclude the public has ever been made or exercised; (7) that the whole plan and design of its polity is with a view to the exercise of public worship (e. g.) car processions are carried out to enable the less favoured worshippers to share in the worship; the expense of various ceremonies is defrayed by outsiders; gifts and endowments are freely received from all; collections were until recently welcomed from all; festivals are conducted on a scale only compatible with the idea that they are public occasions; gods from other local temples are entertained at the expense of this temple; local Brahmin temples receive contributions from it. All this shows that the public are not only freely admitted to the temple, but that provision has been deliberately made for public attendance, worship and ceremonial, and for the receipt of offerings of all kinds and of endowments from the public As against this there is only a fairly long custom of the manager calling himself uttama, which may be easily accounted for by the general unwillingness to interfere with any one’s honourable description of himself so long as there is no actual interference with one’s rights, some vague evidence of ceremonial honour towards the founder, and a very dubious claim that the temple granary was once the residence of the defendants’ family.
12. With these facts before us it seems to us impossible to hold that this temple is a private temple, this idol a mere family Idol, this institution one designed and dedicated merely for the spiritual benefit of one tarwad, this trust one which could he legitimately put an end to by the tarwad or one which would expire if the tarwad died out, that these strangers who have made endowment, those subsidiary temples which depend on contributions for their support, have no legal rights to have these maintained or that these are mere voluntary receipts or contributions, imposing no obligation on the trustees to see that the endowed services are performed or the contributions continued. It appears to us plain on the facts that the representation to the public has all along been that this temple is a public one to which all may come and worship without hindrance and that the accountability of the trustee has in fact been all along and is now to the public and not merely to his own tarwad.
13. The features we have mentioned above as proved have frequently been held to be indicia of a public dedication and trust. We do not think it necessary to consider in detail the various cases which have been cited before us, but we will briefly note them and pass on. Possibly one only of these features by itself would not be enough to establish the public nature of a trust. For example, there may be an endowment of a stranger to a private trust: see Sathappayyar v. Periaswami  14 Mad. 1, but a combination of them is conclusive. Most of the features now noted were present in the cases reported in Sitaramanuja Chari v. Vellamma  2 M.L.W. 858, Muthiah Chetty v. Periannan Chetty  4 M.L.W. 228, and Subramania Ayyar v. Venkatachala Vadhyar  2 M.W.N. 351, a Malabar ease. The importance of the inam registers as proof of public character is emphasized in Natesa v. Ganapathi  14 Mad. 103, Arunachalam Chetty v. Venkatackalapathi Guruswamigal A.I.R. 1919 P.C. 62, Puraviya Goundan v. Poonachi Goundan  40 M.L.J. 289, and Pir Pacha Sahib v. Mahomed Ruhimuddin Sahib A.I.R. 1924 Mad. 491. The user by the public with no hint that it was with permission is emphasized in Jugalkishore v. Lakshman Das (1899] 23 Bom. 659 and in Subramania Ayyar v. Pujari Lakshmanna Goundan  M.W.N. 899, upheld by the Privy Council in Lakshmana Goundan v. Subramania Ayyar A.I.R. 1924 P.C. 44. In a case in Purviya Goundan v. Poonachi Goundan  40 M.L.J. 289 a temple was held to be public in spite of the fact that it observed pollution on the death of any one of the pujari’s family and possessed no Hindu idol or procession. On this first issue then we have no hesitation in agreeing with the lower Court that the temple is a public temple.
14. We now come to the charges of maladministration and breach of trust preferred against the defendants by the plaintiffs. As defendant 2 is dead, the charges against him personally lapse. Defendant 1 has been in charge of temple affairs only since the death of defendant 2 in July 1922, but has been since 1901 the karnavan of the tarwad which appointed defendant 2 to the managership. The trustee of the trust is the karnavan ex officio of the tarwad for the time being, but it has apparently been the practice of this tarwad two or three times lately to appoint a special agent as manager of the temple; it was in this way that defendant 2 came to be de facto manager. Now, so far as defendant 1’s personal fitness or unfitness to remain in office is concerned, it is of course not fair to hold him responsible for the misdeeds of his predecessors. The lower Court has (para. 89) largely proceeded on an erroneous view on this point and has removed defendant 1 because it holds the defendant’s edom guilty of various acts of mismanagement and misappropriation of temple funds at various times without pausing to reflect whether defendant 1 was personally responsible for these facts. It appears to us that we can only hold defendant 1 unfit to continue as trustee it his own personal acts or omissions are such as would render him personally unfit. The lower Court also has, instead of confining its attention to really serious charges, taken up a number of rather trivial points not worth serious consideration by a Court of law, and has in several instances committed errors of fact which we shall note later on.
15. The first point for consideration is a general one, whether, as contended by the plaintiffs, the defendant’s whole pleading and attitude in this suit does not amount to a breach of trust. A careful perusual of defendant 2’s written statement leaves no doubt in our minds that he denied and intended to deny that there was any trust at all. The sentence which opens para. 8 of his written statement cannot admit of any other interpretation. He, however, is dead and is not therefore before the bar of the Court. His contentions may also have been pointed and exaggerated by indignation at an allegation which the plaintiffs in the plaint have made, quite without foundation, that the defendants were trustees by permission of the agraharamdars. Defendant 1’s written statement put in, in the case as karnavan and therefore as representative of the tarwad, is in more guarded language and does admit a recognition of the fact that there is a trust of a kind, and that the temple is an institution with its own polity, property and organization, independent of those of the edom: see especially paras. 2, 15 and 16 of his written statement. The Judge’s statement in para. 89, that the defendants went to the length of claiming the temple as their own private property and denying the very trust, may be true of defendant 2, but is not true of defendant 1. We do not read in the latter’s written statement any denial of the existence of the trust. Plaintiffs, however, contended that the use of the word uttama ” by the tarwad to describe its own position vis a vis, the trust is in itself a breach of trust as indicating that there is no trust at all. It is not shown, be it noted, that defendant 1 has himself used the word ” uttama ” of his possession or of that of the tarwad, but undoubtedly he has in argument here strongly advocated the contention that the tarwad is, as a matter of fact ,the uttama of this temple. Now we are not in this matter prepared to go to the full length desired by the plaintiffs and hold that. the use of the word ” uttama ” wholly negatives any idea of trust. We find that the use of that word is not inconsistent with the notion of a private trust. In fact the late Mr. Justice Sundara-Ayyar, who must be admitted to speak with authority in his book on Malabar Law in para. 161, states that the uralan (which is the proper Malayalam word for trustee) or manager of a private temple is said to be the proprietor of it, the word in his mind for proprietor evidently being “uttama” and in para. 165 he says: Where the temple is a private institution the uralan may be practically an owner.” We have to remember also that the tarwad had uninterrupted and unchallenged control of the temple for centuries and that its use of this word had the authority of civil Courts in judgments exhibited as Exs. 4 and 9 and others, and that its use had been adopted by municipal and other authorities and the local agraharamdars. While we do not, of course, subscribe to the view that such use is proof that the temple was a private one we regard this wide employment of the term as at least evidence that the trustee’s use of it was not mala fide or intended to deny altogether the existence of the trust.
16. We therefore hold that defendant 1, the karnavan, who merely carried on the style used by his predecessors was not taking up a wholly unreasonable or mala fide attitude in maintaining that the temple is a private trust and therefore that that attitude in itself cannot be characterized as a wilful breach of trust. A Court is not called upon to remove a trustee merely because he has asserted that the trust is his private property: see Muhammad Jaffar v. Muhammad Ibrahim  24 Mad 243. In (the case in Chintaman Bajaji Dev v. Dhondo Ganesh Das  15 Bom. 612 cited by plaintiffs, the sole trustee had gone much further and asserted that the trust was his own private estate, from which he could spend as much as he chose on his own private purposes. (The judgment then proceeded further). The next question is now is the trust to recover the losses sustained and from whom is it to recover them. Where the trust property lost can be now traced to the possession of the tarwad, then and only then, can the tarwad be called upon to restore it: see Visnu Nambudri v. Sankaran Nambudri A.I.R. 1921 Mad. 651. As regards the loss of the jewels, defendant 1 has already undertaken to make that good. As for as the Brahmasvom fund, it has in our view been proved to have reached the tarwad and must be made good. Defendant 1 however is not the karnavan who was responsible for its loss. As to the pandiyankodu land obviously the tarwad received the redemption and improvements money, the amount of which may be ascertained from the decree in the suit for redemption. The tarwad as represented by defendant 1 must make this amount good. Our decree will embody these restorations of trust property to the trust. As for the income from that land since 1880 up to the date of redemption, we do not think that this is a proper case for ordering back accounting since the matter is now so long ago. On this point we may also consider the general claim by the plaintiffs which has been upheld by the lower Court that defendant 1 for himself and for the tarwad should be called upon to render to the trust accounts during the period of his karnavanship. As already pointed out defendant 1 only took charge of the trust property in July 1922, four-and-a-half years after the suit was filed and he cannot be personally held accountable for his predecessor’s accounts. As to the civil responsibility of the tarwad we are clear that the tarwad qua tarwad is not liable. The trustee in this case is not the tarwad but the karnavan for the time being ex officio, over whom the tarwad as a whole has no power of control. Where a trust is vested as now in the tarwad the real trustee is the karnavan since the members of the tarwad have no personal right to interfere in his management. They have merely the right to succeed to the trusteeship if and when they succeed to the karnavanship: see Sundara Ayyar’s book on Malabar Law, para. 166, Naryanan v. Sankaran  22 M.L.J. 126 and Vishnu Nambudri v. Sankaran Nambudripad A.I.R. 1921 Mad. 651. It is true that on two occasions latterly, in 1888, (see Ex. N) and in 1901 when defendant 2 succeeded to the managership, the tarwad by domestic karar appointed to the trusteeship one of its members who was not the karnavan. The validity of this arrangement seems to us extremely doubtful since in strict law the uralan of the trust is the karnavan ex officio and his office and duties cannot be the subject of transfer or devolution. In any case such a devolution would not render the tarwad itself liable for back accounting.
17. As for the liability of defendant 1, to restore to the trust, property lost to it, we have already held that defendant 1 is not personally responsible for any of this loss. We are also not prepared to uphold the lower Court’s order that defendant 1 should personally give a general rendition of accounts from 1900. For one thing such a rendition was not asked for and cannot be granted therefore in this suit. Secondly, the correctness of his accounts has not been attacked. Thirdly, defendant 1 is not the person who maintained these accounts and cannot be held responsible for the sins and omissions of others. Fourthly, such a rendition, involving probably recriminations, charges of bad faith and the further litigation contemplated by the lower Court’s decree, would in our opinion re-act unfavourably on the new and more efficient course of management on which we hope the trust will now set out. It is a general principle also that back accounting will not be decreed except on proof of dishonesty and malversation, and we have not found any such proof here against the present trustee. In the interest of the institution and its smooth working we think it advisable that this case should not be merely an introduction to fresh litigation, but should as far as possible end the litigation. We, therefore, decline to direct any general rendition of accounts here or any such rendition in future, and the lower Court’s discretion to that effect will be set aside.
18. As regards the fitness of defendant 1 personally to remain a trustee of this trust we find that defendant 1’s strenuous maintenance in this suit that the trust is a private trust has some justification and even encouragement from members of the plaintiffs own community who have put their signatures to documents describing the manager as uttama. We have found that this contention is not mala fide and, therefore, we do not regard it as in itself sufficient ground for ordering his removal. We find that he acted negligently against the interests of the trust in the matter of the Pandiyankode land and Varabrahmasvom fund and that under his regime the hitherto neglected oottu has not been restored. We find further that he made no attempt to trace the loss of jewels and that in the matter of shanti wages his conduct has been perverse. But for the neglect and indifference of his predecessors he is not responsible, except in so far as he could, as karnavan of the tar-wad, have controlled the management of the temple by defendant 2. On the whole, however, we are of opinion that his conduct has not been mala fide or dishonest, or such that it is necessary in the interests of the trust to insist on his removal. To remove the head of a family which has for centuries been managing this important institution is a step which should only be taken if it is hopeless to expect from him any improvement. Now that it has been definitely declared that the trust is a public one and defendant 1 knows that in future it must in the matter of property and funds be wholly dissociated from his tarwad, while he still has to keep up for the sake of his family reputation its honourable connexion with the temple management, we think it is not advisible to deprive the institution of this” service. We are not therefore, prepared to uphold the order for his removal passed by the lower Court, unless he fails to fulfill the terms as to his continuance in office which we intend to impose upon him.
19. In view, however, of the careless and negligent manner in which the affairs of the temple have of late been administered and the importance of the temple itself we agree with the lower Court that it is advisable in the interests of the trust that it should be brought under a properly framed scheme of management. As to the terms of this scheme we have heard both sides and have also had the benefit of the learned Government Pleader’s observations thereon which he has placed by our request at our disposal. The lower Court has framed a draft scheme, but we think that several of the provisions of that scheme are ill-advised and only calculated to provoke friction. Especially is this true of the provision for five trustees, each of whom is to be’ a managing trustee in turn; nor is the appointment as trustee of one, namely plaintiff 1, who claimed that the defendants were merely managers of the temple by permission of the agraharamdas, likely to lead to harmonious working with a member of the defendant’s family. Further, as far as possible, the intention of the founder, which evidently was that the temple should be managed by the defendants’ edom and by it alone, should be respected, and we cannot overlook the fact that the course of management by the defendants’ edom alone has had the sanction of a long uninterupted exercise. We think it is right to say that on a whole, making allowances for the negligence and the mismanagement which we have already noted, the trust has been fairly maintained for centuries by the edom which has not in any way interfered with its user by the public, and where the family has been so long and so closely associated with the temple and when, as now, the trust will be under the direct supervision of the new Hindu Religious Endowments Board, we think there is much more hope of efficient management and much less chance of unseemly friction if the management is vested in one individual rather than in several. We think it only fair that defendant 1’s family should have the opportunity of working the trust as a public trust harmoniously under the supervision of the Religious Endowments Board.
20. Our scheme, therefore, will provide for a sole trustee who shall be the ex officio karnavan for the time being of the defendants’ tarwad. But we lay down a condition that before defendant 1 is relieved of his present position as Receiver under the Court and before he assumes the office of sole trustee he do comply as far as practicable with the terms of our decree that is, he do from his own or tarwad funds pay Rs. 500 to the temple as compensation for the loss of jewels, he do from the tarwad funds restore to the temple the Brahmasvom fund of 6,500 fanoms, and he do pay to the temple the amount of the redemption money and compensation, for improvements obtained by the tarward on the redemption of the Pandiyankode kanom. If these restitutions are not made within six months from the data of our decree, the plaintiffs are at liberty to apply to the Hindu Religious Endowment Board for the appointment of a fresh trustee or trustees. We may note that the temple will now become an ” excepted temple ” under the definition in Act 2 of 1927, subject to the provisions of that statute which amply provide for the maintenance of accounts, ‘inventories of property, audit, etc. (Then after considering the details of the scheme, the judgment proceeded.) It has been suggested that the trustee should give a security in cash, but we think that this is not advisable. In accordance with the above findings we modify the decree of the lower Court. In the matter of costs we think that the plaintiffs should recover throughout their costs from the trust property and that the defendants should pay their own costs throughout. We fix the vakil’s fee at Rs. 350, plaintiffs’ vakil in the interests of the trust, not claiming a higher fee.