Decided on October 18,1900



- (1.) The main questions to be determined in this appeal are--(1) whether the first respondent (defendant) hereinafter referred to as the responded is the rightful trustee of the temples of Malleeswara and Kesavaperumal 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 1863; 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 Kesavaperumal, existed at the site on which the old light-house stands. But that site having been taken up by Government on payment of compensation, the temple was pulled down. Mudukrishna Mudali (senior), who was at that time the manager of the temple, caused the present temple to be constructed with money received by him from Government as compensation and with funds which he collected by way of subscriptions. Ha held the office of trustee of the present temple till his death in 1795. He was succeeded by his son Chinnaya Mudali who held the office till his death in 1816. His son Mudukrishna 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 he appointed his own sister Ammani Ammal and her husband Ramasami 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 Mudukrishna Mudali (senior) into the hands of persona who had no right thereto. Karaasami 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 Yythilinga Mudali to the trusteeship. He held the office for twenty years and by his will appointed the respondent, one of Mudukrishna's (senior) great-grandsons, 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 (plaintiffs Nos. 1 to 4 and Nos. 6 to 10) the right of management reverted to the heirs of Mudukrishna Mudali (senior) as he was the founder. We are, however, unable to agree with the suggestion that Mudukrishna was the founder. If a temple gets into ruins and a person, as a matter of mere benefaction, erects fresh buildings and dedicates them to the same sort of worship as had been carried 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 Mudukrishna 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 reason able 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 L.R. 10 App. Cas., 304 at p. 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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