Judgement Appeal from a decree of the High Court (February 10, 1905), modifying a decree of the District Court of South Arcot (November 7, 1901). The litigation out of which this appeal arose was concerned with a large number of devastanams, or temples, situate at Tirupati. These temples are of very remote antiquity, of great importance, and held in great veneration by Hindus in all parts of India. The original constitution of the temples as a religious trust did not appear, and they are chiefly maintained by the voluntary offerings of pilgrims. On the assumption of British rule in the Carnatic, the Government took over their management. Later, on the passing of Madras Regulation VII. of 1817, they were managed by the Collector of the district, subject to the control and superintendence of the Board of Revenue. This state of things continued till the year 1841. On June 24 of that year the Governor of Madras, acting under the instructions of the Court of Directors of the East India Company, issued orders for the immediate withdrawal from all interference with native temples and places of religious resort. He stated that it was the intention of Government that the interference of all public officers, either with the internal arrangements of the religious institutions in question, or with the administration of their revenues and funds of every description, should be altogether withdrawn, and be vested in those individuals who, professing the same faith, might be thought best qualified to conduct that administration with fidelity and regularity. Such individuals, together with their subordinate officers, he added, were to be responsible to the Courts of justice for any breach of their duties and trusts assumed by them, and this withdrawal was not to be partial and uncertain, but final and complete. In pursuance of this order the Board of Revenue, on July 6, 1841, directed the Collectors of districts to report in detail the arrangements proposed for each institution in their districts. Reports were furnished in regard to the temples in suit. The arrangement finally sanctioned was evidenced by a sanad granted on July 10, 1843. In pursuance of this order the Board of Revenue, on July 6, 1841, directed the Collectors of districts to report in detail the arrangements proposed for each institution in their districts. Reports were furnished in regard to the temples in suit. The arrangement finally sanctioned was evidenced by a sanad granted on July 10, 1843. It appointed Sri Seva Doss Ji Varu, the mahant of the Mutt of Sri Hathiramji, to be the vicharanakartha (i.e. trustee and manager) of the said temples, and directed that he should perform or cause to be performed, all the religious services, festivals, and duties usually performed at the said temples; that he should receive all the offerings and save the surplus income, if any, maintain the hereditary subordinate officials in their offices, and keep proper accounts. Provision was also made for a perpetual succession to the office of vicharanakartha, by directing that the successor to the said Seva Doss in the said mutt should also succeed him as trustee. Seva Doss was placed in possession of the said temples, and continued to act as trustee till his death in the year 1864. He was succeeded by Dharma Doss, and on his death in the year 1880 Bhagawan Doss succeeded him, and in January, 1890, appointed Mahabir Doss as his successor. Mahabir Doss died on October 11, 1894, and, after an interregnum, Ramkishore Doss, the original defendant to this suit, succeeded to the office on March 17, 1895. Pending judgment in the District Court he was murdered on September 15, 1900, and was succeeded by the appellant Prayaga Doss. This suit was brought in 1898, with the consent of the Advocate-General of Madras, under s. 539 of the Civil Pro cedure Code, against Ramkishore Doss by the respondents, two subordinate officials attached to the temples. The plaint referred to the management of the temples by the Government, and the grant of the sanad dated July 10, 1843. It alleged that each of the trustees in succession had been guilty of malversation and misappropriation of the trust funds, and specifically charged the defendant with the improper use of his powers ; with failure to perform regular religious ceremonials; with neglect to keep proper accounts; with misappropriation of offerings; and with other acts of a similar nature. It alleged that each of the trustees in succession had been guilty of malversation and misappropriation of the trust funds, and specifically charged the defendant with the improper use of his powers ; with failure to perform regular religious ceremonials; with neglect to keep proper accounts; with misappropriation of offerings; and with other acts of a similar nature. The relief sought was, " The settling a scheme for the management of the plaint devasthanams, with such modifications in the organization of the managing authorities as may be necessary to obviate the evils referred to above, and to place the administration of the devasthanams on a satisfactory footing." In his written statement Ramkishore Doss denied each and every charge made against him, and pleaded that the suit was not maintainable under s. 539 of the Code of Civil Procedure, as also that under the said section the Court had no power to alter the constitution of the trust when framing a scheme of management. The District Court made a decree framing a scheme of management intended to remedy existing abuses. The Mahant of Hathiramji Mutt was retained as a trustee, and a committee of control consisting of five persons was appointed to supervise his proceedings. Both plaintiffs and defendant appealed, and the High Court rejected the scheme of the District Court and substituted another. It said in its judgment that it was clear "that the arrangement made in 1843 for the administration of the institution has not answered the expectations then entertained, that the mahants have shewn themselves to be utterly incompetent to discharge the duties of the office properly, and that the surplus income has been misappropriated by them partly for their own personal use and partly for the aggrandisement of the mutt. Unless, therefore, steps are taken to impart real efficiency to the management, to provide checks against peculation and to arrange for the due application of surplus funds not required for the usual and ordinary purposes of the institution, it is impossible to safeguard the interests of the institution. We agree, therefore, with the District Judge that this is a fit case for the Court sanctioning such a scheme. And it may be added that Sir V. Bashyam Aiyangar, who appeared for the mahant both in the lower Court and here, did not take any objection to a scheme being sanctioned. We agree, therefore, with the District Judge that this is a fit case for the Court sanctioning such a scheme. And it may be added that Sir V. Bashyam Aiyangar, who appeared for the mahant both in the lower Court and here, did not take any objection to a scheme being sanctioned. The controversy has been as to the machinery which the District Judge considered necessary to bring into existence in the form of a committee consisting of five members who were to exercise minute and complete control over the mahant. And it was contended both before him and before us that it was beyond the jurisdiction of the Courts to establish such a controlling authority. And it was also strongly urged that it was not competent, in cases like the present, for the Courts to appoint new or additional trustees." In discussing the actual terms of the scheme to be sanctioned the learned judges expressed the view that the decree appealed against created a machinery which was too cumbrous to work smoothly and effectually; and in substitution for that decree they decided to settle a scheme by which an additional trustee should be appointed to take part in the management with the mahant instead of a committee, and that he should be remunerated at a sum not less than Rs. 400 and not more than Rs. 500 per mensem, and that the term of office of the additional trustee should extend to five years, and that he should be eligible for re-appointment; and that in the case of difference of opinion arising between the two trustees the matter should be referred to the Pedda Jeyangar, whose opinion should be followed. Either of the trustees should be liable to summary removal by the District Court on good cause shewn, subject to appeal to the High Court. The judgment goes on a follows " In addition to the matter of the appointment of such new trustee the scheme should first and foremost provide for the utilization of the surplus funds coming into the hands of the trustees from time to time. The necessity for making such a provision is imperative to guard against the wasting or embezzlement of such accumulations in future, which have been not only possible in the past, but encouraged owing to the want of any provision for their utilization. The necessity for making such a provision is imperative to guard against the wasting or embezzlement of such accumulations in future, which have been not only possible in the past, but encouraged owing to the want of any provision for their utilization. There is no complaint that the services in the temple have not been duly performed, but after all that has been done, the mahant has found a large surplus in his hands which the accounts shew he has expended upon objects more or less objectionable. The surplus income may be estimated at about a lakh or so per annum. Proceeding on the cy-pres principle the following are the objects on which both sides are agreed that the surplus funds may be appropriately spent." The objects referred to are as follows The establishment of a college in Lower Tirupati for the promotion among Hindus of a knowledge of the Hindu religion and shastras. The foundation and maintenance of a rest-house and hospital on the Tirumalai hill for the use and accommodation of pilgrims and worshippers. The introduction of a good water supply, and the improvement of road communications on the hill. Sir R. Finlay, K.C., De Gruyther, and Le Fanu, for the appellant, contended that under s. 539 of the Civil Procedure Code the High Court had no power to alter the constitution of the trust by the appointment of an additional trustee. The power to appoint a committee of control over trustees of religious institutions is limited to cases under s. 3 of Act XX. of 1863, which did not apply to this trust. The scheme as framed appointing the Pedda Jeyangar as umpire in case of dispute between the trustees is not only illegal, but unworkable in practice. So also the provision made for summary removal and the appointment of an additional and paid trustee see ss. 14 and 18 of Act XX. of 1863. Such alteration tended to impair the dignity and authority of the mahant, which were derived from the Government sanad granted in 1849 to Seva Doss and his successors. The High Court had no material before it on which a finding could be based that there were surplus funds in the hands of the trustee which could not be applied to the legitimate objects of the present trust. The High Court had no material before it on which a finding could be based that there were surplus funds in the hands of the trustee which could not be applied to the legitimate objects of the present trust. There was no allegation in the plaint that, after provision is made for the due performance of the religious ceremonies and duties incumbent to be performed under the trust, there is any surplus, as assumed by the High Court. Even if such surplus existed it was contended that the objects specified in the scheme of the High Court were not of a nature kindred to the purely religious objects for which the trust in suit was founded. The respondents did not appear. The judgment of their Lordships was delivered by LORD MACNAGHTEN. The suit which has given rise to this appeal was brought for the purpose of having a scheme settled for the management of a Hindu devastanam, or temple, situated in Tirupati, and the protection of its funds. It was not disputed in either of the Courts below that a scheme was necessary. The questions in debate were confined to matters of detail. The state of things which made a scheme necessary and the earlier history of the institution are summed up in the following passage taken from the judgment of the High Court— "The temple of Sri Venkateswara in Tirumalai or Tirupati in the North Arcot district is a very ancient Hindu temple to which worshippers resort from all parts of India, and is in receipt of an annual income of between two and three lakhs of rupees. Prior to the establishment of the British Government, the management of the institution was directly under the ruler of the country for the time being. After the advent of the British, the management passed into the hands of the East India Company, and subsequent to the enactment of Regulation VII. of 1817 of the Madras Code, it was carried on under the control of the Board of Revenue through the Collector of the district. After the advent of the British, the management passed into the hands of the East India Company, and subsequent to the enactment of Regulation VII. of 1817 of the Madras Code, it was carried on under the control of the Board of Revenue through the Collector of the district. With reference to a despatch of the year 1841 from the Court of Directors ordering the immediate withdrawal from all interference on the part of the officers of Government with native temples and places of religious resort, the management of the temple was in 1843 made over to Seva Doss, the head of a mutt called Hathiramji Mutt, situated in the town of Tirupati at the base of the hill on which the important shrine stands. In the sanad by which this transfer of management was effected, it was provided that Seva Doss successors in the mutt should be his successors as vicharanakartha or manager of the temple. Seva Doss having died in 1864, Darma Doss succeeded him, and on Darma Doss death in 1880, Bagavan Doss became manager and continued so till 1890. Prom 1890 to 1894 Mahbir Doss was manager. And from 1895 to 1900 Ramakisore Doss, the defendant in the two suits Nos. 31 of 1898 and 10 of 1899, on the file of the North Arcot District Court, held the management; and on his death, pending the litigation, the present mahant, as the head of the mutt is styled, succeeded to the office of the manager, and was brought on the record as the legal representative of Ramakisore. " Now, when in 1843 the management was transferred to Seva Doss, it was, no doubt, expected that the management by the mahant would prove satisfactory, but the history of what took place subsequent to Seva Doss death is, to put it shortly, a record of waste and embezzlement." In these circumstances the District Court settled a scheme. The scheme was amended by the High Court on appeal. As amended it was still not satisfactory to the parties most concerned, and the mahant appealed to His Majesty in Council. The scheme was amended by the High Court on appeal. As amended it was still not satisfactory to the parties most concerned, and the mahant appealed to His Majesty in Council. The principal objections urged on the appeal were—(1.) that the effect of the scheme would be to lower the position of the mahant and weaken his authority; and (2.) that, although there was no surplus in hand nor any immediate prospect of a surplus, the scheme provided for the application of surplus revenue, devoting it to objects admirable perhaps in themselves, but somewhat foreign to the purposes of the institution. It was pointed out that these provisions were unnecessary at present and likely to prove embarrassing in the future. The appeal to this Board was heard ex parte. But their Lordships had the benefit of Sir Robert Finlays official experience in similar matters in this country. After a full discussion in Court their Lordships, with the assistance of the learned counsel engaged, have settled the following scheme, which will, they think, meet the exigencies of the case without impairing the authority of the mahant as the duly constituted manager of the institution. Scheme. 1. 1. A treasurer to be appointed by the District Court at a salary. 2. 2. All funds to be in the custody of the treasurer. Rules to be framed by the District Court to ensure the proper receipt and custody of all offerings, income and funds, and investment of any surplus, and to prevent misappropriation, and to ensure the proper management of any estates or other properties or investments. 3. 3. The vicharanakartha, two months prior to the commencement of every year, to prepare and file in the District Court a budget of the expenses to be incurred in 1906- 1907 I.A. V-34(72)the ensuing year. 4. 4. The treasurer to put the vicharanakartha in funds for all disbursements according to the budget, and for any further expenditure deemed necessary by the vicharanakartha, but unless by leave of the District Court such further expenditure not to exceed Rs. 5000 during any one year. 5. 5. The vicharanakartha, within three months after the end of each year, to cause to be prepared and filed in the District Court a detailed account of receipts and disbursements of the year. The accounts to be audited by an auditor to be appointed by the District Court. 5000 during any one year. 5. 5. The vicharanakartha, within three months after the end of each year, to cause to be prepared and filed in the District Court a detailed account of receipts and disbursements of the year. The accounts to be audited by an auditor to be appointed by the District Court. The remuneration of the auditor to be fixed fey the District Court and paid from the devastanam funds. An abstract of the said accounts prepared and certified by the auditor to be published in such manner as the District Court shall direct. 6. 6. All surplus income to be invested for the benefit of the temple. 7. 7. No immovable property of the temple, including lands held on mortgage, lease, or any other right, to be given on lease for more than five years, mortgaged or sold by the vicharanakartha, except with the sanction of the District Court. 8. 8. No jewels or other property of value to be sold without the sanction of the District Court. 9. Subject to this scheme the vicharanakarthas position to remain as before. 1. 10. Liberty for the vicharanakartha and any person interested to apply to the District Court with reference to the carrying out of the directions of this scheme. 2. 11. Liberty for the vicharanakartha and any person interested from time to time to apply to the High Court for any modification of this scheme that may appear to be necessary or convenient. Their Lordships will therefore humbly advise His Majesty that an order be made to the following effect -— Discharge the orders of the High Court and the District Court; Approve the foregoing scheme as a proper scheme for the management of the devastanam. Refer it to the District Court to appoint a treasurer to frame such rules as are required under the Said scheme to be framed by them (with power to vary the same from time to time), and also to fix the date when the scheme is to come into operation. Refer it to the District Court to appoint a treasurer to frame such rules as are required under the Said scheme to be framed by them (with power to vary the same from time to time), and also to fix the date when the scheme is to come into operation. The costs of all parties of this suit, including the charges and expenses of the vicharanakartha properly incurred, the costs of the appeal to the High Court, and the costs of the appeal to His Majesty in Council, to be submitted to the District Court and as approved by the Court to b© paid and retained out of the funds of the devastanam.