JUDGMENT Iqbal Ahmad, J.
1. The dispute in the suit out of which the present appeal arises was about the right to the mutwalliship of a temple in the city of Muttra and about the possession of the property appertaining there to and the decision of the dispute depends mainly on the interpretation of a deed of endowment dated 12th January 1888, executed by two brothers named Suraj Mal alias Chhajju Babu and Murli Manohar. There were three plaintiffs in the suit. Plaintiff 1 was Sri Thakur Gopalji Maharaj, an idol installed in the said temple and the remaining two plaintiffs were Kanhaiya Lal and Sohan Devi. The relationship of these two plaintiffs with Suraj Mal and Murli Manohar would appear from the following pedigree: [see next page]
2. The original defendants to the suit were Jagan Chaube and one of his sons named Chhote Lal. Jagan Chaube died during the pendency of the suit in the Court below and then his elder son Bidur was substituted as his legal representative. The plaintiff's case was that according to the deed of endowment plaintiffs 2 and 3 were entitled to be the mutwalli and manager of the temple and of the endowed property and that the defendants had no right either to the possession of the temple or of that property. It was admitted in the plaint that the original defendants were managing the temple and the property, but it was alleged that they were misappropriating KHETTU MAL _____________________________________|_____________________________ | | | Suraj Mal=Mt. Sidho Murli Manohar=Mohan Devi Ishar Devi = Lalchand (died 910.) (died 1899)|(died 1915) | _______________________________|_____ | | | Kanhaiya Lal, Shantan Behari Sohan Devi, plaintiff 3 plaintiff 2.
the profits of the trust property and the offerings made in the temple. The plaintiffs however based their right to the reliefs prayed for by them essentially on the provisions of the deed of endowment. The reliefs prayed for in the suit were: (a) A perpetual injunction may be issued to defendants or the defendant who might allege to be in the charge of sewa and puja restraining the defendants (or him) from performing sewa and puja of Thakur Gopalji aforesaid installed in the temple and from realizing the arrears of rent in respect of the property appertaining to the temple aforesaid and (b) the defendants may be ordered to withdraw their possession from the temple and property appertaining there to bounded as given below and put the plaintiffs in possession thereof or the defendants may be dispossessed therefrom and the plaintiffs may be put in possession thereof.
3. Both Bidur and Chhote Lal contested the suit. They pleaded that after the death of Murli Manohar, Suraj Mal, by a deed dated 10th August 1901, in exercise of the powers reserved to him by the deed of endowment, appointed Jagan Chaube manager and mutwalli of the said temple and that Jagan remained manager for about 30 years and then appointed Chhote Lal as manager and mutwalli by a deed dated 9th July 1932. On these allegations it was pleaded that Chhote Lal was the rightful manager and mutwalli and that plaintiffs 2 and 3 were not the managers and mutwallis and were not entitled to bring the suit. The allegation about the misappropriation of the income of the trust property and of the offerings was denied and limitation was pleaded in bar of the plaintiff's claim.
4. It was admitted by the plaintiffs that by the deed of 1901 Suraj Mal had appointed Jagan Chaube as the manager of the temple, but it appears that the deed of 1901 was cancelled by Suraj Mal by a deed dated 12th November 1908, and there after by a deed dated 22nd June 1910, Suraj Mal nominated Kanhaiya Lal, plaintiff 2, as manager after his death. The plaintiffs impugned the validity of the deed of 1901 and maintained that Suraj Mal was competent to cancel that deed. The defendants on the other hand asserted that the deed of 1901 was perfectly valid and that, in accordance with the terms of that deed, Suraj Mal had no right to cancel that deed and to appoint Kanhaiya Lal as manager.
5. The Court below overruled the pleas urged in defence and decreed the plaintiff's suit. It held that by the deed of 1901, Suraj Mal did not transfer the right of shebaitship and appointed Jagan only as manager and that, even if he did transfer shebaitship, the transfer was invalid under the Hindu law. It further held that Suraj Mal had the right in law to cancel the deed of 1901 and did actually cancel the same by the deed of 1908, and himself resumed management of the temple. It decided that plaintiffs 2 and 3, being the heirs of the founders of the endowment, were entitled under the Hindu law, to bring the suit. On the question of limitation it held that possession of Jagan was not continuous from the year 1901 and that, after the death of Suraj Mal in the year 1910, Jagan was appointed manager by Lal Chand, father of Kanhaiya Lal, and as such, his possession was permissive and the suit was not barred by limitation. Bidur has submitted to the decree, but Chhote Lal has appealed.
6. The cardinal questions that arise for decision in the appeal are, whether Suraj Mal was competent to appoint Jagan as the manager of the temple for all time to come and whether the line of succession to the office of mutawalli and manager prescribed by the deed of endowment was, as a matter of fact, and could be, altered by Suraj Mal. The deed of endowment is printed at p. 58 of the record. It appears from this document that Khettu Mal, father of Suraj Mal and Murli Manohar, purchased a double storied house having two courtyards together with shops underneath with the idea of making the temple of Sri Gopal Ji Maharaj. Khettu Mal however died and then his two sons installed the said idol in the house and executed the deed of endowment with respect to the said house and declared that there after they would hold the aforesaid house as deottor property in favour of Thakur Ji aforesaid...and its income shall be continued to be spent in the ragbhog of Thakur Ji aforesaid.
7. Then follows the following provision on which the main controversy has hovered in this appeal:
The condition relating to the management of the aforesaid temple is this: that we, the executants ourselves, as the mutawallis and managers of the aforesaid temple on behalf of Thakur Ji aforesaid shall always render services and perform duties relating to the temple and Thakur Ji aforesaid and during our lifetime any other person shall in any way, have no power relating to the management, without our express permission, whether it be oral or in writing. After our (deaths), this right of mutawalliship, management and performance of services and duties towards Thakur Ji aforesaid shall, like ourselves devolve on our descendants, or shall, be acquired by any heir, male or female, who may be left in our family or enforcement shall be made according as we may think proper and decide in future in view of the circumstances of the temple.
8. It is admitted on all hands that by this provision the founders of the endowment reserved to themselves the right of mutawalliship and management for their lifetime, and that, after their death, the right was to devolve on their descendants and heirs, male and female. But it is argued on behalf of Chhotelal appellant that, though the line of succession to the office of mutawalli and manager was prescribed in the deed, it was open to the founders of the trust to alter that line of succession and, in support of this argument, reliance is placed on the concluding portion of the provision quoted above by which the founders of the trust had reserved to themselves the right to "decide in future in view of the circumstances of the temple." The respondent's counsel on the other hand contends that, even assuming that it is open to the founders of a trust to validly reserve to themselves the right to alter the order of succession of trustees laid down in the deed of trust or even to authorize trustees to alter the order of succession, the power reserved by the deed of endowment in the present case could be exercised only by both the executants of the deed and not by Suraj Mal alone. He therefore maintains that, after the death of Murli Manohar, Suraj Mal had not the right to alter the line of succession to the office of mutwalli and manager. We shall deal with these arguments after briefly stating the facts that led to the execution of the deeds of 1901 and 1908 and nothing the provisions of those deeds and of the deed of 1910.
9. Murli Manohar, at the time of his death in the year 1899, left a minor son named Shantan Behari. This minor boy and Mt. Sidho, wife of Suraj Mal, suddenly disappeared from Muttra in the year 1901. There was some controversy in the Court below on the question as to whether these two were drowned in the Jumna or left Muttra for some unknown place but that question is immaterial for the decision of the appeal. Suraj Mal must naturally have been afflicted with grief by the disappearance of his wife and his minor nephew and it is a matter of admission that he did decide to, and did, leave Muttra in search of his missing relations. Before his departure he had to arrange for the management of the endowed property and this occasioned the execution of the deed dated 10th August 1901. The deed is styled as a "deed of appointment as a manager" and is printed at p. 64 of the record. It was recited in the deed that Suraj Mal along with Murli Manohar was the manager and mutwalli of the temple and that Suraj Mal performed "all the work relating to sewa puja and supervision of the temple," and as his wife and nephew had disappeared he was "very much worried and troubled and in such a worried condition" could not "fully discharge the duties of sewa puja and supervision of the temple" and accordingly "in accordance with the provisions laid down" in the deed of endowment of 1888 "entrusted the temple, the shops and bhog man dir...to Jagan." The powers vested in Jagan and the limitations imposed on him as manager were then specified in the deed. By Clause 9 of the deed it was provided that I (Suraj Mal), my heirs and representatives shall have no power to cancel this deed of appointment at any time, and the following provision was then made by Clause 10:
...In short, I have from this date transferred to Jagan Chaube all the powers which I the manager had subject to the condition that nobody else including the brothers of Jagan Chaube, with the exception of Jagan Chaube and his lawful heirs, shall have a right to interfere with the management with the waqf property so long as he (Jagan Chaube) is the manager....
10. Reliance is placed by the learned Counsel for the appellant on Clause 9 in support of the argument that Suraj Mal had not the right to cancel the deed of 1901 and it is argued that on a true interpretation of Clause 10, the office of the manager and mutwalli was transferred to Jagan Chaube and to his heirs. On the other hand, it is contended by the learned Counsel for the respondents that while it was within the competence of Suraj Mal to entrust to Jagan Chaube the duties of manager as a temporary measure, he (Suraj Mal) had not the right to and did not, as a matter of fact, transfer the office of mutwalli to Jagan, and that, in any case, the deed of 1901 conferred the rights of a manager only on Jagan Chaube and not on his heirs. He further maintains that Jagan Chaube now being dead, the deed of 1901, irrespective of its cancellation by the deed of 1908, has become inoperative and plaintiffs 2 and 3, as the heirs of the original founders of the trust, are entitled to be the manager and mutwalli of the temple. He also contends that Suraj Mal had the right to, and did as a matter of fact, cancel the deed of 1901 by the deed dated 12th November 1908.
11. It is common ground that soon after the execution of the deed of 1901 Suraj Mal left Muttra and Jagan became the manager the temple and of the endowed property. But within a few months Suraj Mal returned to Muttra and began to reside with his mother in the residential portion of the house in which the idol was installed. The evidence shows that Jagan usually lived at Calcutta and appointed someone to look after the worship of the idol. The person so appointed used to take away all the offerings and Jagan Chaube used to send Rs. 10 per month to Suraj Mal in lieu of the offerings. By the year 1908 Suraj Mal became dissatisfied with this state of affairs and decided to take the management in his own hands. He then executed the deed dated 12th November 1908, which is styled as "Deed of cancellation" and is printed at p. 73 of the record. In this deed after reciting the fact that he had left Muttra in search of his missing wife and nephew it was stated that while Suraj Mal "was in a state of mourning and helplessness, Jagan Chaube through his insistence obtained" the deed dated 10th August 1901. Further, in the document Suraj Mal expressed dissatisfaction with respect to the management by Jagan, and with a view "to remove future disputes" cancelled the document of 1901. It is clear from the evidence that has been believed by the Court below that from the year 1908 Jagan ceased to be the manager of the temple and Suraj Mal there after acted as manager and mutwalli.
12. On 22nd June 1910, Suraj Mal executed a document by which he provided that after his death Kanhaiya Lal, his sister's son, shall be his "successor as the manager himself or under the guardianship of his father." A few days after the execution of this deed Suraj Mal died. Kanhaiya Lal was then a minor and was residing with his father Lal Chand in Calcutta. It is the plaintiffs' case, and that case has been accepted by the Court below, that, after the death of Suraj Mal, Lal Chand again appointed Jagan as the manager of the temple and of the endowed property. This appointment was however oral and not evidenced by any written document.
13. The question whether by the deed of 1901 shebaitship was transferred to Jagan and whether the transfer of that office was valid under the Hindu law was discussed at some length by the trial Judge, but in the view that we take the discussion or the decision of that question is unnecessary. By the deed of endowment dated 12th January 1888, the two brothers Suraj Mal and Murli Manohar, appointed themselves as mutwallis and managers and provided that the right of mutwalliship and management and "performance of service and duties towards the idol" shall after them devolve upon their descendants and heirs. This provision was however subject to the right reserved in favour of the two brothers to make alteration in this provision about the management and mutwalliship. The question then arises whether the provision about the succession to the office of mutwalli and manager could be altered by Suraj Mal alone after the death of Murli Manohar.
14. In the consideration of this question the distinction between a bare power and power attached or annexed to a trust or office must be borne in mind. In the former case the power can be exercised by the donees of the power conjointly or not at all, whereas in the latter case the power can be exercised by the survivor. The law is that if power is given to two persons by name the power can be exercised by both or not at all. But if power is given to two persons not by name but as office holders, the power can be exercised even by the survivor of the two. In cases where power is given to two persons by name coupled with the description of their office then, in order to decide whether the power can be exercised by the survivor, the Court has to gather the intention from the terms of the deed whether the power was given to them as person designate or as holders of the office and the rule set forth above has then to be applied: vide Farwell on Powers, Edn. 3, pages 511, 514 and 516; Halsbury's Laws of England, Edn. 2. Vol. 25, p. 528, para. 956; Simith, In re; Eastick v. Smith (1904) 1 Ch D 139; Bacon, In re; Toovey v. Turner (1907) 1 Ch D 475-76 LJ Ch 213 and Kokilasari Dasi v. Rudranand Goswami,(1907) 5 CLJ 527 at p. 534.
15. The power given by the deed of endowment to Suraj Mal and Murli Manohar to alter the line of succession prescribed by the deed was given to them by name as is evident from the provision, "or enforcement shall be made according as we may think proper." It was not in their capacity as mutwalli or manager that this power was reserved to them. It was a bare power and it was optional with them to exercise or not to exercise that power. It follows that the power was not annexed to their office as mutwalli as in that case it would have been imperative on them to exercise that power. There is therefore no escape from the conclusion that Suraj Mal alone, after the death of Murli Mahohar, was not competent to alter the line of succession to the office of mutwalli and manager and, accordingly, the deed of 1901 cannot adversely affect the right of the present plaintiffs to hold that office, provided they are the heirs of the founders of the trust. We now proceed to consider the document of 1901. A perusal of that document, and in particular of Clause 10, puts it beyond doubt that document was confined in its operation only so far as Jagan was concerned. He was made manager and his powers were defined by the document. But heritable rights were not conferred by the document and the right of management was not given to Jagan's heirs. Further there was no provision entitling Jagan to transfer the right of management in his lifetime.
16. The defence based on the document of 1901 must therefore fail on two grounds: firstly it was not within the competence of Suraj Mal to alter the line of succession laid down by the deed of 1908, and secondly because by the deed of 1901 the prescribed line of succession was not altered and at best Jagan Chaube was entitled to remain manager during his lifetime, Jagan Chaube being now dead plaintiffs 2 and 3, who are the heirs of the founders of the trust, are entitled to the office of mutawalli and manager. In this view of the matter the question whether, by virtue of Clause 9 of the deed of 1901 Suraj Mal had or had not the right to cancel that deed does not arise. There appears to us to be no substance in the plea of limitation raised by the defendants. All that Jagan could claim on the basis of his possession was that he having acted as trustee for more than 12 years could not be dispossessed by the rightful trustee who had failed to sue for possession within 12 years. But the moment Jagan executed the document of 1932 and entrusted the management of the temple to Chhote Lal appellant the plaintiffs had a fresh cause of action to sue for possession of the endowed property by dispossession of Chhote Lal. This was the view taken in Dharam Narain v. Gur Saran (1929) 16 AIR All 404 at p. 193. For the reasons given above, we hold that the rights of the case were with the plaintiffs: that they were entitled to maintain the suit, and accordingly dismiss this appeal with costs.