Decided on November 12,1900



- (1.) The main questions to be determined in this appeal are--(1) whether the 1 respondent (defendant) hereinafter referred to as the respondent is the rightful trustee of the temples of Malleeswara and Kasavaperumal, situated in Black Town; (2) if so, whether the suit, in so far as it relates to the charge of neglect of duty alleged against him, is unsustainable because no leave was obtained under Section 18 of the Religious Endowments Act, XX of 1868; and (3) whether the respondent has been guilty of neglect of duty calling for notice at the hands of the Court.
(2.) Now, as regards the first question the facts bearing thereon are beyond dispute. Prior to the year 1777 a temple, dedicated to Malleeswara and Kasavaperumal, existed at the site on which the old light-house stands. But that site having been taken up by the Government on payment of compensation, the temple was pulled down. Muddukrishna Mudali (senior), who was at that time the manager of the temple, caused the present temple to be constructed with the money received by him from the Government as compensation and with funds which he collected by way of subscriptions. He held the office of trustee of the present temple till his death in 1795. He was succeeded by his son Chinniah Mudali who held the office till his death in 1816. His son Muddukrishna Mudali (junior) succeeded him, held the management up to the year 1840 and was succeeded by his younger brother Lakshmana Mudali. who died in 1847. He left a will whereby ho appointed his own sister Ammani Ammal and her husband Ramaswami Mudali as his succeeding trustees and authorized them to appoint their own successors and thus diverted the devolution of the office from the family of Muddukrishna Mudali (senior) into the hands of persons who had no right thereto. Ramaswami Mudali died shortly afterwards and Ammani Ammal continued to hold the office of trustee till 1872. By her will she appointed her sister's son Vythilinga Mudali to the trusteeship. He held the office for 20 years and by his will appointed the respondent, one of Muddukrishna's (senior) great grandson, as his successor.
(3.) The first contention on behalf of the respondent was that, granting for argument there was a vacancy on Vythilinga's death, as urged for the appellants (plaintiff 1 and 4 and 6 to 10) the right of management reverted to the heirs of Muddukrishna Mudali (senior) as he was the founder. We are, however, unable to agree with the suggestion that Muddukrishna was the founder. If a temple gets into ruin and a person as a matter of mere benefaction erects fresh buildings and dedicates them to the same sort of worship as had been carrried on in the old temple, such person may properly be treated as the founder of the new temple, even though in constructing it he used materials of the former temple or other property belonging thereto. The circumstances of the present case are, however, very different. When Muddukrishna received the money paid as compensation by Government he received it as trustee, and in applying that money towards the construction of the present temple he did nothing, more than what he was called upon to do as trustee. The circumstance that he had taken the trouble to raise subscriptions to supplement the trust funds in his hands, and that such subscriptions amounted, to much more than the original trust funds would not make either him or the subscribers founders. The reasonable view would be to treat the amount subscribed as accretions to the existing trust funds and as something contributed for the better carrying out of the purposes of the original foundation. (Compare the observations of the Earl of Selborne, L.C., in the Privy Council case, In the matter of the Endowed Schools Act, 1869. In. the matter of the St. Leonard, Shoreditch, Parochial Schools, 10 A.C. at page 308). As the very first step in the argument addressed to us with reference to the contention under consideration fails, it is not necessary to discuss the contention further.;

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