M.NATESAN, J. -
(1.) THIS appeal has been placed before the Full Bench as the substantial question that calls for examination is the correctness of the view expressed by a Division Bench of this Court in Munahmnainatha Desikar v. Gopala I.L.R.(1943) Mad. 858 : (1943) 1 M.L.J. 434 about the applicability of the rule in Juttendramohun Tagore v. Ganendromohun Tagore (1872) 9 Beng. L.R. 377 : L.R. (1872) IndAp 47 to the office of manager of a South Indian temple under a scheme of succession settled by the founder. The very scheme of succession and right to management of the properties of the temple now in question was the subject -matter of adjudication in Manathunainatha Desikar v. Gopala (1943) 1 M.L.J. 434 : I.L.R.(1943) Mad. 858 and this aspect has given rise to a question of res judicata for consideration.
(2.) THE suit, the decree wherein in favour of the plaintiff has given rise to this appeal by the first defendant, is for a declaration that the first defendant is not entitled to be a joint trustee along with the plaintiff and defendants 2 and 3, of the temple to which the suit properties belong. The first defendant's right to be in possession of the suit properties as joint trustee is questioned and an injunction restraining the first defendant from collecting rents and profits thereof or otherwise interfering with the properties is prayed for. The suit properties nanja punja and jari monai of an extent of 106 acres and 33 1|2 cents situate in the village of Mappalam in Nannilam Taluk, East Tanjore District - -admittedly endowed, belong to Sri Viswalinga Vaitheeswaraswami, a deity of the Hindu) Pantheon, whose temple is located at Jaffna, Ceylon. The temple was founded by one Vaithilinga Chettiar, a remote ancestor of the parties, in or about the year 1790, and it owns extensive properties in Jaffna, besides the suit properties. The founder Vaithilinga died in or about 1828. Under his will dated 20th April, 1805, of which Exhibit A -1 is registration copy, he prescribed a scheme for the due administration and management of the temple and its properties and the charities he founded. Briefly stated the will prescribes the devolution of the right of management (office of Vicharanai Kartha) after his death, first on his two sons, Gopala Chettiar and Kandappa Chettiar for their lives, and after them upon his male descendants in the male and female lines. The will drafted in old Tamil and the syntax is rather; loose; but the intention of the testator and the terms of the foundation prescribed, are manifest and not difficult of ascertainment. The provisions regarding the management of the institution are found in two places in the testament. In the first portion, properly translated, the following are enjoined to perform the trusts; sons Gopala Chettiar and Kandappa Chettiar, in their male and female line, their descendants one generation of sons to another generation as long as Vankeesa Gothram lasts. Again, at the close of the will, the provision for continuous management is indicated requiring that the sons and their descendants in the male and female lines shall manage for long without fail. The Tamil words used are: The word means lineage, descent or family. Though the word used in the instrument can indicate both male and female children, from the testator's use of it while referring to the testator's sons Gopala Chettiar and Kandappa Chettiar and use of the expressions it is clear that the founder means by the expression male descendants and was providing for management by his male descendants. Directing that the trust shall be performed with all religious zeal and bakthi, the testator expresses his intention that the divine grace earned in the family should be retained in the family and shared by his descendants in the male and female lines. The words "from one -generation of male descendants to another" indicate that in any line the nearer would exclude the remote. But, as there is recognition of equal and simultaneous rights in both classes of defendants in the male and female lines, it is also clear that the nearer in degree in one line do not exclude the more remote in another line.
(3.) THE pedigree annexed shows the members of the family and their descent from the founder Vaithilinga Chettiar and the parties with their ranks in the former suit and in the present suit. The appellant herein, the plaintiff in the former suit and the only contesting defendant in the present suit. No. 17 in the pedigree, is a grandson of Manathunainatha, No. 14 in the pedigree. While No. 14 is the great grandson in the male line of Gopala Chettiar the founder's son, he went out of the line by adoption into the family of one Kandaswami Desikar. But Kandaswami Desikar was married to Kanagarathnam, Gopala Chettiar's son's daughter. The appellant by the adoption became a descendant in the female line of the founder. Claiming his rights to the joint management of the endowments under the will, he filed the suit O.S. No. 20 of 1938 on the file of the Subordinate Judge's Court, Mayuram, against Gopala Chettiar No. 19, Nagarathnathachi, No. 21, the widow of No. 18 a deceased brother of Gopala Chettiar, Thangathammal No. 22, widow of another brother No. 20 of Gopala Chettiar, Ponnuswami Chettiar No. 29, and Vaithilinga Chettiar No. 30. Of course, Gopala Chettiar No. 19, Ponnuswami Chettiar No. 29 and Vaithilinga Chettiar No. 30 were male descendants of the founder and unquestionably entitled to the management of the trust. The present plaintiff and defendants 2 and 3 are the sons of this Vaithilinga Chettiar. The appellant charged Gopala Chettiar, Ponnuswami Chettiar and Vaithilinga Chettiar who were impleaded as defendants 1, 4 and 5 in that suit, as setting up exclusive title in themselves for possession and management of the suit temple and its endowment in derogation of his right to joint trusteeship with them. He prayed for an injunction restraining them from interfering with his joint possession of the endowed properties, the present suit properties. The learned Subordinate Judge taking the view that it was the intention of the testator that the succession to the office should follow the line of succession to the property of the family, but subject to the qualification that the nearer in degree excluded the more remote, disallowed the plaintiff's claim to trusteeship, on the ground of his grandfather having been adopted away from the family and on the ground that he was lower in descent than the contesting defendants 1 and 5 in that suit.
Aggrieved by the decision of the Sub -Court, the plaintiff brought up the matter to this Court in appeal A.S. No. 387 of 1940. It is the decision therein that is reported as Manathunainatha Desikar v. Gopala (1943) 1 M.L.J. 434 : I.L.R. (1943) Mad. 858. Pending that appeal, the 5th defendant Vaithilinga Chettiar died in October, 1940 and in his place his widow Kannammal and his two minor sons Kandappa No. 43 and Muthu Kayarohanan No. 44, present defendants 2 and 3, were brought on record as legal representatives on 21st April, 1941. The present plaintiff is the posthumous child of his father, born on 5th December, 1940, and he was not impleaded as a party respondent in that appeal. His brothers were represented by their maternal uncle as guardian ad litem. On the appeal, this Court upheld the plaintiff's right to joint possession of the office of trusteeship and of trust properties, while holding that it must be taken as settled that Shebaiti office equally with the hereditary office of manager of a South Indian temple is a species of property to which the restrictions enunciated in Tagore v. Tagore (1872) I.A. 47 : 9 Beng. L.R. 377 are applicable. The scheme of management, by which the office of trusteeship was conferred by the founder on his descendants both in the male and female lines, was held valid, distinguishing the scheme of succession as one where each succeeding trustee took office not as the heir of his predecessor but pro formam doni, as a direct nominee under the rules of succession laid down by the founder. Pursuant to the decree that followed the decision of this Court, the present appellant took joint possession of the office and the trust properties sometimes in January, 1943.;