Skip to content

Chapsey Cooverji Vs. Jethabhai Nursey - Court Judgment

LegalCrystal Citation
Decided On
Case NumberO.C.J. Suit No. 687 of 1905
Reported in(1907)9BOMLR569
AppellantChapsey Cooverji
RespondentJethabhai Nursey
caste question-relief in caste matters-right of a member of a caste to inspect documents and looks of account relating to caste property-injunction where such inspection refused.;where a member of a caste, who was also a trustee of the caste property, was refused inspection of books of accounts, documents etc, by the president of the managing committee of the caste.;that an injunction could be granted restraining the president from refusing such inspection.;lalji shamji v. walji wardhman (1895) i.l.r. 19 bom. 507 referred to.;every member of a caste, being interested in its affairs, has a right, incidental to his membership, to every information which the books, records,'and documents of the caste can give him to enable him to discharge the duties he owes to the caste. it is a right.....chandavarkar, j.1. the parties to this suit belong to the cutchee dassa oswal bania caste. the plaintiff, chapsey cooverji, alleging that he is a trustee of the property of the caste and of certain funds belonging to it, known as the sadharan and the derasur and that he is a member of the managing committee of the caste, claims the right to inspect and take copies of the whole, or such portions as he thinks necessary, of the books of account, the minute books and documents of the mahajan, the managing committee, the sub-committee and the trustees of the caste. the suit is brought against the defendant, jethabhai nursey, on the allegation that he, being president of the managing committee, has denied the right claimed by the plaintiff and obstructed the latter in the exercise thereof.2......

Chandavarkar, J.

1. The parties to this suit belong to the Cutchee Dassa Oswal Bania caste. The plaintiff, Chapsey Cooverji, alleging that he is a trustee of the property of the caste and of certain funds belonging to it, known as the Sadharan and the Derasur and that he is a member of the Managing Committee of the caste, claims the right to inspect and take copies of the whole, or such portions as he thinks necessary, of the books of account, the minute books and documents of the Mahajan, the Managing Committee, the Sub-Committee and the trustees of the caste. The suit is brought against the defendant, Jethabhai Nursey, on the allegation that he, being President of the Managing Committee, has denied the right claimed by the plaintiff and obstructed the latter in the exercise thereof.

2. One of the grounds on which the defendant in his written statement resisted the claim was that since the institution of the suit the plaintiff had ceased to be a trustee of the caste, having been removed from that office. Issues Nos. 17 to 19 were raised to try that question, but the defendant has given them up for the purposes of this suit and the trial has proceeded on the basis of the plaintiff being still a trustee. Moreover, I have found in Suit No. 109 of 1906 that the plaintiff has not been removed from the office of trustee and that neither the caste nor its Managing Committee has any power to remove him.

3. The plaintiff claims the right of inspection in three capacities, viz. as a trustee of certain funds and institutions of the caste, as a member of its Managing Committee, and, lastly, as a member of the caste. And the books or records, of which he claims inspection, are the account books and minutes of proceedings of the trustees, the minute books and proceedings of the Managing Committee, the Sub-Committee's proceedings and the correspondence file.

4. The first question is, whether the plaintiff occupies the three capacities in which he claims the right. That he is still a trustee is conceded for the purposes of this suit by the defendant and my judgment in Suit No. 109 of 1906, to which the plaintiff and defendant were parties, has disposed of that question in plaintiff's favour.

5. I find upon the evidence recorded in this case that the plaintiff is still a member of the caste. A very faint attempt was made by the defendant to prove that the plaintiff has practically ceased to be a member of the caste, because he has joined the party headed by Vasonji Tricumji. and because that party has separate feasts, holds separate meetings and has separate minute books and officers of its own. But the evidence adduced to show that the party in question has ceased to belong to the caste is of the most meagre character. There is no proof worth the name that the members of that party have been excommunicated by the caste and that those admittedly in the caste do not dine or hold social intercourse, as members of the caste, with them. Chella Jivraj, one of the witnesses examined for the defendant, states that plaintiff'' is not out of the caste '. And the evidence of the plaintiff, that in 1905 both the factions dined together at the Nursey Natha feast and that the logos offered in that year by the members of Vasonji Tricumji's faction were accepted stands practically unchallenged. It is not necessary to discuss this question or the question whether plaintiff is still a member of the Managing Committee. The learned Advocate-General has not contended before me, either when he opened the defendant's case or when he summed up that case after evidence for the defendant had been adduced, that the plaintiff is no longer a member of the Managing Committee or a trustee or has ceased to be a member of the caste. In fact, he objected to any evidence being led or any questions being asked by Mr. Inverarity with reference to those points.

6. The right of the plaintiff to an inspection of the books, documents and records of the caste and its trustees, Managing Committee and Sub-Committee and of the correspondence file is, however, contested upon the preliminary ground that, assuming the right to exist, it relates to a caste question, affecting the internal affairs and management of the caste, and, therefore, outside the jurisdiction of the Court. And in support of that argument I have been referred by the learned Advocate-General to two decisions. One of them is Burland v. Earle [1902] A.C. 83 where the Judicial Committee of the Privy Council say:-'It is an elementary principle of the law relating to joint stock companies that the Court will not interfere with the internal management of companies acting within their powers and in fact has no jurisdiction to do so.' On the analogy of this principle it is argued that whether any member of a caste or any trustee of its funds or any member of its Managing Committee ought to have the right to inspect all or any of its books, records and papers, is a question which it being entirely a matter of internal economy, the caste has exclusive jurisdiction to settle whichever way it chooses; and that if any rule regulating that question has been made by the caste and has been infringed either by it or by any member of it, to the detriment of any other member, such infringement can give no cause of action, because it is within the power of the caste at any time, if it chooses, to alter that rule and take away the right or give redress to the aggrieved member. I fail to see, however, how the principle enunciated in Burland v. Earle can have any application here. The plaintiff here claims the right to inspect in virtue of an office and in virtue of his membership of the caste. He does not complain that the caste has prevented him from exercising it. What he complains of is that the right is denied to him, not by the caste but by an individual member of it. It is not like a case of a joint stock company, which has done something irregularly but which it has power to do regularly. That was the state of things which the Privy Council dealt with in Burland v. Earle. Had the caste deprived the plaintiff of the right he claims, the principle of that decision would have perhaps applied. But here the caste has done nothing of the kind. All that has been attributed to it is, that it has passed a resolution removing the plaintiff from the office of trustee. But that defence is abandoned by the defendant, for the purposes, at all events, of this suit. And the defendant's case, by his own pleading has proceeded in this suit upon the basis that the plaintiff is still a trustee. His case is, therefore, like that of a shareholder in a joint stock company which has at a meeting passed a resolution conferring a certain right on its directors but a majority of the directors of which, in spite of that resolution, deny that right to one of their body.

7. But, apart from that, the limits of the Court's jurisdiction in caste questions are now well understood. If one principle has been consistently acted upon in suits relating to caste more than another, it is this that while a Court will not interfere with the jurisdiction and discretion of a caste as regards its internal purposes and management with reference to which it is its own master to frame rules and regulations, the Court will interfere in favour of any individual member of the caste as against any other member or members of it, where the Court is asked to give effect to any rule, resolution, or usage of the caste, if the right claimed in virtue of such rule, resolution, or usage, is a civil right cognisable by the Court. In giving relief in such cases, the Court, so far from interfering with the autonomy of the caste or encroaching upon its jurisdiction as to its internal affairs, recognises them by giving effect to its rule, resolution, or usage. That is the principle involved in the decision of Farran J. in Lalji Shamji v. Waljh Wardhman ILR (1895) 19 Bom. 507. There a question arose as to the jurisdiction of the Court to interfere in the internal management of the very caste, to which the parties to the present suit belong. The caste had passed a certain resolution as regards the feasting of Brahmins by the caste. The plaintiffs in that case sought to prevent the defendants from using the caste oart and vessels contrary to the resolution. And Farran J. held that the Court had jurisdiction to interfere for the purpose of giving effect to the resolution of the caste and to pass a decree in accordance with it. The learned Judge relied upon the authority of Pragji v. Govind ILR (1887) 11 Bom. 534, where West J. said :-'To take evidence of the customary law of a caste; to recognise that law and the vote of a majority as given effect to by that law, is not to interfere in caste matters. It is simply to recognise the existence of castes as corporations with civil rights and autonomy suitable to the purposes of the existence '.

8. Other instances of a similar character to illustrate the limits of the Court's jurisdiction in caste questions may be easily given. If a caste expels a member of it from its fold, the Court has indeed no jurisdiction to give him relief by decreeing that the caste shall treat him as a member of it, provided that he has been excommunicated after having been duly heard by the caste ' in defence. But, even where he has been excommunicated without having been heard in defence, the Court's jurisdiction to interfere is limited to cases involving the loss of a civil right, that is, the Court will interfere only if the result of the sentence of excommunication, unfairly passed by the caste, has deprived the person excommunicated of his right as a member of the caste to some property or office or some other legal right. Again, where a caste has by its rule or resolution or usage conferred a legal right on any of its members, any violation of that right by any other member or members or by the caste itself, is sufficient to give the former a cause of action. For instance, if a caste owns an oart set apart under its rules for the celebration of marriages or other ceremonies among its members, every member is entitled under that rule to the use of the oart for such celebration or ceremony; and should any member of the caste obstruct him in the enjoyment of that right, the Court would have jurisdiction to give him relief.

9. The decision of this Court in Mehta Jethalal v. Jamiatram Lalubhai ILR (1887) 12 Bom. 325, on which the learned Advocate General relies in support of his argument, does not in any way conflict with the principle which L am here expounding on the authority of the decisions of Farran J. and West J. above cited. In Mehta Jethalal v. Jamiatram Lalubhai, the caste was divided into two factions; certain property was claimed by the caste as belonging to it and the caste sued to recover it from the defendant, who belonged to the faction, the members of which were alleged to have receded from the caste. This Court held that the suit did not involve a caste question. In delivering the judgment of the Court, Sargent C.J. said: 'If the lands in dispute had been originally the property of the caste, the question would have been between the caste and a section of it and would be, as decided in Nemchand v. Savaichand ILR (1866) 5 Bom. 84 n., a caste question ; and therefore not cognisable by the Civil Courts'. No doubt that would have been a caste question, because where a caste is the owner of property as a caste, no member of it, or no section of it, can claim it independently of the caste and it is for the caste alone to determine how that property shall be used, enjoyed, or dealt with, by it or by any of its members. Every member of the caste must abide by the decision of the caste with reference to the property and for the Court to determine the relations of each member to the caste as regards the property would be to usurp the functions of the caste. Hence in Nemchand v. Savaichand ILR (1866) 5 Bom. 84 n. a full Bench of this Court held that a Civil Court has no jurisdiction to entertain a claim by certain members of a caste, who had receded from it, to a share of the property which admittedly belonged to the caste. And that decision was followed in Girdhar and Ors. v. Kalya ILR (1880) 5 Bom. 83. But the principle of that decision has no application, where a caste has passed a rule according certain privileges as to its property to its members and where a person, who is a member of it and who has not been deprived of those privileges by the caste, claims them, in virtue of the rule, against another member who is obstructing him. To regulate how and under what circumstances and in what case caste property shall be enjoyed ; who shall enjoy it and when; is the function exclusively of the caste. The Court cannot regulate that, because it is a matter of the internal economy of the caste. But once the caste has laid down regulations, the Court has jurisdiction to give effect to them.

10. What, then, are the rights of the plaintiff as to inspection in each of the three capacities which he occupies in the caste As a trustee, he is undoubtedly entitled to inspect and copy the books, documents and records of the trust properties and funds. That is conceded by the learned Advocate-General. As a member of the Managing Committee, he is entitled to inspect and copy the minutes and other papers of that body. Each of those rights is necessarily implied by and incidental to the office he holds. So far the case is free from all doubt.

11. But the plaintiff claims the right in a third capacity, viz. as a member of the caste. Every member of a caste, being interested in its affairs, has a right, incidental to his membership, to every information which the books, records and documents of the caste can give him to enable him to discharge the duties he owes to the caste. It appears to me to be a right similar to that of a partner in a firm to the partnership books. 'A partner, as long as he remains a partner, is entitled to the information contained in the partnership books. Prima facie that is his right, so long as he does not seek the information for the purpose of doing an injury to the firm or for an illegal purpose' (per Lord Halsbury, L.C. in Trego v. Hunt [1895] 1 Ch. 473. 'As well under the general law as under the express provision of the articles of partnership the defendant was entitled during the partnership to have access to the books and to make copies thereof or extracts therefrom. It is conceivable that if the defendant proposed to use such extracts for purposes injurious or hostile to the interests of his firm he might be restrained from be doing. But in such case it would not be the obtaining of the information, but the use the partner proposed to make of it when obtained which would be restrained.' (per Lord Davey in Trego v. Hunt. [1896] A.C. 26.

12. But though such is prima facie the right of every member of a caste, the caste has jurisdiction to limit, qualify or take away, that right by its rales duly made or resolutions duly passed, or by its usage. Equally it would have jurisdiction to deprive a member of it of the right which he has, by excommunicating him from its fold for any caste offence. But so long as he remains a member of the caste, he is entitled to the rights and privileges which his membership carries with it, according to the rules and usage of the caste.

13. In this particular caste, the Cutchi Dassa Oswal Banias of Bombay, the question of the right to inspection has been set at rest by its rules which are to be found in Ex. J., Rule No. 8, under the heading of 'Secretary,' runs as follows :-

Without the permission of the Secretary or the President no person or persons whatever except (? other than) the trustees can inspect any book or document whatever nor can he or they remove it even outside the office.

14. The narrow construction which I have been asked by the learned Advocate General to put upon this rule is not justified either by its plain language and import or the context in which this rule appears among the rules regulating the office of Secretary. The exception made in favour of the trustees relates, it is contended, only to the books or documents of the trustees. But expressly the rule does not say so; and I do not see why I should deviate from the meaning yielded by the wide terms of the language of the exception and limit the right of the trustees by importing words into the rule which are not there and without which the rule is susceptible of a sensible construction. The reason of the exception made in favour of the trustees is obvious. They hold a very responsible office ; they are appointed to guard the funds of the several institutions and trusts of the caste and control its expenditure in accordance with its rules, usages and resolutions and it must have been thought expedient that they ought to have the power of inspecting every book, document, or paper, whether it directly appertained to the trusts or not, because in a caste like this, having large funds and onerous trusts, there was no saying what book, document or paper, might have nothing to disclose concerning the financial affairs of the caste. The caste must have deemed it safer not to draw the line by any hard and fast rule as to the trustee's right of inspection and say, ' Thus far and no further.'

15. I have examined the rule relating to that right carefully and I do not think I can by any legitimate process of construction interpret the word 'trustees' conjunctively, not distributive-ly. Every individual trustee has a responsibility independently of his co-trustee or the trustees acting in a body; and the right is conferred by the rule on each trustee.

16. It follows from what I have said that the plaintiff has absolutely the right of inspection which is claimed in his plaint in his capacity of trustee. As a member of the caste he has the right, subject to the permission of the Secretary or the President. The defendant states in his deposition that no member of the caste can have inspection without the permission of the Mahajan. He relies on what he calls the invariable practice of the caste followed both before and after the passing of the rules. But of such practice there is no satisfactory proof. Besides, if it existed, it must be deemed to have been given up by the caste when it passed the rules. Those rules regulate the practice and it is by them that the caste is governed.

17. But whether as a trustee or a member of the caste, the plaintiffs right to inspection can be exercised only for the bona fide purposes and in the interests of the caste and not for any purpose hostile or injurious to those interests. The defendant charges the plaintiff with seeking inspection for the purpose of harassing and annoying the constituted authorities of the caste and ferreting out information with the object of assisting Vasonji Tricumji's faction. It is further stated by the defendant that the plaintiff's object in inspecting the Sub-Committee's book and the correspondence file is to obtain information for the purposes of the suit which one Velji Passaya has instituted, claiming damages for defamation, against certain members of the caste.

18. Upon the evidence I am satisfied that the plaintiff's object in seeking the inspection claimed by him was bona fide and not for the purpose of annoying or harassing either the defendant or the defendant's faction or the caste. It is undisputed that the 'plaintiff at one time belonged to the defendant's party and was opposed to Vasonji Tricumji's. In 1903 some members of the caste having heard that the funds of the caste were being mismanaged and that the books of account as to those funds were not properly kept, asked the three trustees for an explanation. Not getting any, they sent Solicitor's letters demanding inspection of the books (See Exs. A7 to A9 and A30) their complaint was not heeded. In July 1905 seven members of the caste demanded inspection similarly. Complaints having reached the plaintiff that the trustees, including the defendant, were paying no attention to the demands of the several members of the caste and that caste funds were being mismanaged, he interfered and claimed the right of inspection for the first time in August 1905.

19. That there was prima facie reasonable ground for the inspection he claimed is obvious from the fact that since the institution of this suit the Advocate-General has under Section 539 of the Code of Civil Procedure filed a suit against the trustees of the caste. (See Ex. L). The oral evidence in the case shows that moneys have been borrowed on behalf of the Mahajan from temple funds for building a caste oart in Bombay and a sanitarium at Bhandoop and that expenditure has been incurred on behalf of the caste for fighting the Brahmin question in Cutch. With reference to this expenditure it is that the plaintiff claims the right to inspect what is called the correspondence file. His case is that that file contains letters which would, if inspected, show how much money has been sent by the defendant and the other trustees acting with him to Cutch for fighting the Brahmin question at Cutch. In all these questions of expenditure the plaintiff as a trustee is plainly interested and he has a right to find out from all the papers and records of the caste what has been done, what moneys have been borrowed and spent and whether the expenditure is proper and just or not. The defendant has admitted in his deposition that in the accounts there is a debit of Rs. 53,000 to the Mahajan from the trust funds. And in the Advocate-General's plaint (Ex. L.) mal-administration of funds to the extent of Rs. 50,000 is charged against the trustees. With all this evidence before me I find it impossible to hold that the plaintiff has been seeking inspection merely to annoy the defendant and his faction.

20. But it is urged that his object in claiming inspection of the Sub-Committee's books and the correspondence file is for the purposes and in the interests of Velji Passaya's suit. And it is further contended that in any case the plaintiff has no right to inspect that book and file.

21. It appears from the evidence that Volji Passaya is father-in-law of Vasonji Tricumji to whose faction the plaintiff now belongs. The Managing Committee of the caste have excommunicated him on the ground of some caste offence and it has become a moot question in the caste whether he, being a permanant resident of Cutch, not of Bombay, the caste in Bombay has any jurisdiction over him to entitle it to take cognisance of any caste offence alleged to have been committed by him. Before excommunicating him the Managing Committee appointed a Sub-Committee to inquire into his conduct. And the plaintiff has claimed the right to inspect that Sub-Committee's book and proceedings. Both the oral and documentary evidence shows and indeed the defendant himself admits in his deposition that the dispute about inspection had commenced long before Velji Passaya's question arose and became a subject of controversy in the caste. And as to the Sub-Committee, it is a committee of the Managing Committee and the plaintiff as a member of the latter and also as a trustee has every right to inspect the Sub Committee's books.

22. I now turn to what is the most important question in the case whether the defendant has invaded the right of the plaintiff and rendered himself liable to this action. Most of the evidence, both oral and documentary, adduced by either party, relates to that question and the facts elicited are so complicated and range over so wide a ground in point of time and place that it would be difficult to deal with thorn satisfactorily unless for the sake of clearness I divide them into three heads. First, there is the oral evidence as to the visits of the plaintiff to the temple of the caste on certain days to demand inspection when, accord ing to his case, inspection was either totally refused by the defendant or allowed with certain restrictions which the defendant had no right or legal justification to impose. Secondly, there is the evidence of the correspondence between the parties mostly conducted by each through his Solicitors, from which, the plaintiff contends, it becomes clear that the defendant denied to him the right of inspection. Thirdly, both oral and documentary evidence is adduced by the plaintiff to show that the defendant worked indirectly, by means, that is, of meetings of the trustees, of the Managing Committee and of so called meetings of the caste, to deprive the plaintiff of his right. This, in other words, means that the defendant used improper methods to deprive the plaintiff of his right.

23. It will be convenient to discuss the evidence under each of these heads.

[After discussing this evidence His Lordship proceeded as follows. ]

24. I have so far considered the evidence, oral and documentary, bearing on the dispute between the parties up to the date of this suit (the 11th of September 1905). The conclusion I have arrived at from that evidence is shortly this. The defendant at first denied to the plaintiff the right to inspect and take copies of the minute books of the Mahajan and the Managing Committee, but at last withdrew his objections and admitted the plaintiff's right. The plaintiffs' subsequently claimed the right to inspect and take copies of the Sub-Committee book (Ex. 56) and the correspondence file. As to these two books the defendant denied the plaintiff's right and obstructed him in the exercise of it on the 7th of September; and the plaintiff's cause of action as to these two books accrued on that day. And it is practically that cause of action which gave rise to this suit.

25. The answers which the defendant has given in his cross-examination with reference to the plaintiff's right to inspect support the conclusion I have arrived at. He says: 'At the time of this letter of the 28th August 1905 from Little & Co' (forming part of Ex.K.,) 'I personally admitted that the plaintiff had a right to take copies without assigning a reason, that is, I personally had at that time no objection to his taking inspection and copies of all the papers of the trustees-in fact, we obtained sanction from the Managing Committee and gave inspection and the right to copy all papers, whether of the trustees or not, to the plaintiff-but if it is a question of right I don't admit and never meant to admit that the plaintiff or any one has such a right.' He says that the plaintiff's right of inspection recognised by the trustees at their meeting of the 2nd of September 1905 did not extend to the Sub-Committee's book and the correspondence file and that the plaintiff has no right to inspect these without the consent of the Mahajan.

26. The question now arises whether the defendant was and is justified in denying to the plaintiff the right of inspection as to the Sub-Committee book and the correspondence file. The defendant's case is that these, relating to the judicial branch of the caste, appertained to caste matters, affecting the purely social relations of the members of the caste and that being books or papers concerning exclusively the caste on the one hand and any member of the caste who has committed a caste offence on the other, no person except the caste collectively or the offender individually has any interest or right of property in the book and the file. This argument rests on the assumption that no member of a caste is interested in the inquiries and trials held as to any caste offence charged against a member of the caste. It is the right, I think, which every member of a caste has, to know whether the inquiry and trial has been properly held or not and whether the offender has been dealt with justly from the point of view of the caste in accordance with its rules or usages. If by any resolution or rule the caste has cut down or qualified that right of each member of the caste, such resolution or rule would be of course binding upon all members of the caste. In the present case, as I have already pointed out, the rule of the caste entitles the plaintiff as trustee to inspect all books and docwnents without any distinction. The plaintiff's case is that he has reason to believe that the defendant and other trustees acting in concert with him have incurred expenses in the matter of Velji Passaya's excommunication out of the temple funds of which he is a trustee. And he desires inspection of the Sub-Committee book and the correspondence file for the purpose of finding out whether any moneys out of the temple funds have been so spent by the defendant and others on behalf of the caste. It is suggested in argument that his object is also to utilize the information obtainable from these books for the purpose of Velji Passaya's suit filed in this Court. But there is no such suggestion in the defendant's written statement. Thakersey Leherchand, the Mehta. who is examined for the defendant, says:-'If any moneys were sent out of the temple or Mahajan funds and any letters written about that, those letters would appear in the correspondence file. The correspondence books would be ke pt in the same cup-board with the trustees, the Mahajan and the temple, books.'

27. Then it was said that this suit against the defendant alone could not lie, but that the trustees and members of the Managing Committee who have joined the defendant in resisting the plaintiff's right and the caste were necessary parties. This plea of non-joinder of necessary parties was not raised in the written statement. But, apart from that, the plaintiff's grievance is not against the caste. He has never alleged that the caste as a body has ever done him any wrong so as to give him a cause of action against it. On the other hand he takes his stand upon the right conferred upon him by the caste in virtue of his office as a trustee of its several funds and his grievance is against the defendant personally. He complains that the defendant taking advantage of his office as president of the caste, as a member of the Managing Committee and as a trustee, has illegally prevented him from enjoying and exercising his rights as a trustee and member of the caste. To such a suit the caste is not a necessary party at all. If the plaintiff's case is true, the defendant is a tort-feasor, not the caste. If on the other hand the caste has authorised the defendant to obstruct the plaintiff in the exercise of his right and the defendant is a mere agent carrying out its behests, he has only to prove that defence and the plaintiff must at once be non-suited. As to the trustees and members of the Managing Committee who have acted in concert with the plaintiff, there is no rule of law which compels a plaintiff suing for a tort to sue either all his tort-feasors or to sue none. He can select any of them he likes and sue one or some or all at his option.

28. But the plaintiff asks for an injunction to restrain the defendant from interfering with his right of inspection. Under the first paragraph of Section 54 of the Specific Relief Act, 'a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication.' It is not enough that the defendant has invaded the plaintiff's right. The plaintiff must prove that the invasion amounts to a breach of an obligation on the part of the defendant. And it is contended for the defendant that no such obligation has been made out. The books and documents of which the plaintiff claims inspection are not, it is urged, the defendant's; he has not their custody; and he is not a trustee of the plaintiff in respect of the books or any property to which they relate. And in support of the argument Kearsley v. Philips (1882) 10 Q.B.D. 36 is cited. There it was held that no one should be compelled to produce another man's documents because he has joint possession of them with that other man. That in my opinion is a different case from the present. Here the book and documents are property in which each of the parties as a member of the caste has interest with the other members of it. The right of each member of the caste is like that of a partner in a firm as to the partnership books. As in the case of the latter, they exist for the benefit of each partner, so the books and documents of a caste exist for the benefit of each of its members; and whoever is in charge of them on behalf of the caste is bound to show them to any member who, according to the rule of the caste, is entitled to their inspection. Here according to the plaintiff, the trustees, including the defendant, are the lawful custodians of the books and documents of the caste. The Mehta had charge of all of them and kept them in cupboards or boxes and had the keys with him. The plaintiff's allegation as to the custody, made in para 2 of the plaint, is not specifically denied in the written statement. And the effect of the oral evidence goes in my opinion to support that allegation. The wide power of inspection given by rule No. 8 to the trustees leads also to the same conclusion. It is true that under the rules the books have to be in the custody of the secretary. But I find from the evidence that that rule has not been observed. In para 3 of Ex. A26, which is the defendant's affidavit of documents, it is stated that the minute books of the trustees are in the possession of the trustees, not the secretary. In Ex. A34, another of defendant's affidavits of documents, he says not a word about the secretary but states that the trustees held the documents. Further, when the plaintiff went to the temple and asked the Mehta to give him inspection, the Mehta declined on the ground that the defendant's permission must be obtained. And when the plaintiff informed the defendant of that, the plaintiff's statement was never denied by the defendant in any of the correspondence that followed. I have no doubt upon the evidence taken as a whole that the defendant and the other trustees had the lawful custody of the books and documents on behalf of the caste, as alleged by the plaintiff; and that the defendant as the leading man of the caste controlled the custody on behalf of himself and his co-trustees. He was according to rule No. 8 in Ex, J under an obligation to give inspection to any of his co-trustees who claimed it. The plaintiff is therefore entitled to relief by way of injunction. This is not a case where there exists any standard for ascertaining the actual damage caused or likely to be caused by the defendant's invasion of the plaintiff's right or where pecuniary compensation would afford adequate relief.

29. Lastly, there is the argument addressed to me by the learned Advocate General that the plaintiff is not entitled to the decree he asks against the defendant, because such a decree will affect the rights of third parties. But what rights and who are the third parties? If it is the caste, what right of the caste will be affected or prejudiced by the decree? If evidence had been adduced to satisfy me that the plaintiff is seeking inspection for some purpose detrimental to the interests of the caste and that a decree in his favour would be an engine placed in his hands for oppressing the caste, I should certainly have hesitated before decreeing the claim and considered whether before disposing of the case I should not direct a meeting of the caste to be held to determine the question, whether the plaintiff should be allowed to exercise the right he claims. But no such case has been made out before me. The caste has conferred a right upon the plaintiff, the defendant has invaded it; and in the absence of anything to satisfy mo that the plaintiff is seeking inspection for illegal purposes injurious to the caste, I do not think I can refuse him the relief he claims. In granting that relief, I think, I am passing a decree confirming rather than prejudicing the rights of the caste and it will tend to advance rather than jeopardise its interests inasmuch as it will open the eyes of those authorities of the caste who are denying to its members and constituted officers the rights and privileges which the caste has accorded to them. The only point on which I have to be satisfied before granting a perpetual injunction as prayed is that the defendant enjoined can obey the decree. On that point I have heard no objection from defendant's counsel and indeed it is unarguable having regard to the weight of the evidence in the case.

30. Some minor defences of the defendant remain to be disposed of. He says he has been acting in all he has done in obedience to the orders of the Managing Committee of the caste. But, in the first place, the Managing Committee has no power granted to it by the caste to interfere with a trustee's right of inspection conferred by rule No. 8. It is idle to say that the rules invest the Managing Committee with all the powers of the caste. Rule No. ' 2 in Ex. J. under the heading of Mahajan invests the Committee with executive power only. And that construction of the rule is confirmed by the fact that under rule No. 8 under the heading of 'Mahajan' the caste is the tribunal without whose consent the Managing Committee cannot punish a member of the caste for any caste offence. See also rule No. 9. A trustee or member of the caste seeking inspection for some purpose injurious to the interests of the caste must come within the class of men committing or attempting to commit a caste offence ; and in such a ease it is no doubt the duty of the Managing Committee to inquire into the offence and report the case to the caste, But the Managing Committee cannot visit him with any punishment on its own authority and responsibility. In the present case the Managing Committee have not ventured to submit the plaintiff's case to the caste legally according to the rules. They have tried to get up meetings of the caste for one purpose and there obtained resolutions passed without regard to the strict formalities prescribed by the caste. It is, therefore, no defence that the defendant has been acting under the illegal orders of the Managing Committee. This judgment has already grown to such length that I do not like to encumber it further with a minute discussion of the evidence as to the meetings of the caste alleged to have been called for the purpose of depriving the plaintiff of his right. The evidence is all one way and its weight is decidedly in favour of the plaintiffs case. I will only state the conclusion to which a consideration of that evidence has led me. No meeting of the caste was legally called and held at which the plaintiff was deprived of his rights. Such meetings as were called had been called for other purposes and it was at such meetings that resolutions were passed concerning the plaintiff'. There can be no doubt that the defendant and his faction have been trying to get rid of the plaintiff by-unfair means. The caste being divided into two factions, it has become difficult for the defendant's party to convene a meeting of the caste properly and in accordance with the rules and after due intimation to all members of the caste to bring the plaintiffs case before a regularly held meeting of the caste. The defendant and his party have therefore got up irregular meetings and there they have had certain resolutions passed. These resolutions cannot protect the defendant. They are indicative, in my opinion, of his unfair attempts to injure the plaintiffs right conferred by the caste. The defendant has further tried to take shelter behind the action of the Managing Committee. That action cannot warrant his invasion of the plaintiff's right, because the Managing Committee itself has no power under the rules to deny to the plaintiff that right or to deprive him of it without the consent of the caste.

31. The plaintiff must have his costs from the defendant.

Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //