1. This Second Appeal arises out of a suit (O. S. No. 49 of 1955, Sub court Kakinada) filed by the managing trustee of Sri Venugopalaswamyvaru Devastlninam of Viravada, for the recovery of a sum of Rs. 5,517-4-6 being the rent due in respect of the temple lands demised to the 1st defendant. The circumstances under which the suit was filed are briefly these :--
2. On 19-3-1950, the then trustees of Devasthanam caused a public auction to be held for leasing out an extent of 11-69 acres of the temple lands for four years, Vikruty, Khara, Nandana and Vijaya. The 1st defendant was highest bidder. The sale of the lease hold was, therefore knocked down in his favour. He executed a registered muchilika (Ex. A-l) on 18-4-1950 covenanting to pay Rs. 2,890/- per year, and entered upon the demised lands. He paid the rent for Vikruty, though beyond the stipulated lime. He did not pay the rent for the year Khara. The Board of Trustees of the Devasthanam authorised the then managing trustee (the second defendant in this suit) to take action against the 1st defendant for realising the arrears of rent. Accordingly he instituted O. S. No. 51 of 1953, on the file of the District Munsif's Court, Peddapuram, against the 1st defendant for the recovery of the rent for the year Khara and the balance of interest due on the rent for the year Vikruty. During the pendency of the suit, the plaintiff in this suit, Minyala Lingarajui was appointed as the managing trustee and he was brought on record in the place of the 2nd defendant. The learned District Munsif gave the 1st defendant credit for some amount and passed a decree for the balance. In appeal by the 1st defendant, the learned Subordinate Judge, varied the amounts of deduction and confirmed the decree for the payment of rent.
3. The rents for the years Nandana and Vijaya were due. Therefore, the Devasthanam filed the present suit for the recovery of rent for those two years. The plaintiff--Devasthanam in the present suit prays, first, for a decree against the 1st defendant in a sum of Rs. 5,517-4-6, with interest being the rent for Nandana and Vijaya, and secondly, if for any reason the 1st defendant is held not liable for any portion of the rent claimed, a decree may be passed against the 2nd defendant for that amount.
4. The 1st defendant raised various pleas in his written statement. He claimed a rebate on the ground of non-execution of repairs. He set up a plea of discharge of rent in a sum of Rs. 1,430/-. He contended that, in any event, the plaintiff-devasthanam cannot claim against him the rent for the year Nandana, as such a claim was not included in O. S, No. 51 of 1953, on the file of the District Munsif's Court, Peddapuram, and that, therefore, the present claim for that amount was barred under Order 2, Rule 2, Civil P. C. He denied his liability to pay the rent for the year Vijaya.
5. The 2nd defendant the quondam managing trustee denied the receipt of the sum of Rs. 1,430/-towards the rent for the year Nandana. He pleaded that there was no basis for impleading him in the present action and that, in any event, the suit is bad for misjoinder ot parties and causes of action.
6. The trial Court framed the relevant issues, and found on a review of the evidence, first, that there was no non-joinder or misjoinder of parties or causes of action, secondly, that the payment of Rs. 1,430/- by the 1st defendant to the 2nd defendant in partial discharge of the rent due for the year Nandana had not been made out ; thirdly, that inasmuch as the rent for Nandana, though accrued due by the time of filing of O. S. No. 51 of 1953, was not included in that suit, the present claim for the rent of Nandana is barred under Order 2, H. 2, Civil P. C.; and fourthly that for the non-inclusion of the claim for the Nandana rent in O. S. No. 51/53, the second defendant was primarily responsible and, therefore, he was liable to make good the loss sustained by the plaintiff-Devasthanam. In appeal by the second defendant the learned District Judge agreed with the trial Court that the discharge pleaded by the let defendant was false. He held the claim for the Nandana year as barred under Order 2 Rule 2, Civil P. C. The learned District Judge also held that the suit was bad for misjoinder of parties and causes of action, nevertheless he agreed with the finding of the trial Court that the 2nd defendant was liable to make good the loss sustained by the Devasthanam in respect of the Nandana rent.
7. The first question that falls for determination is whether the claim for rent for the year Nandana is barred under Order 2, Rule 2, Civil P. C. On 6-12-1952 the Board of Trustees passed a resolution (Ex.B-7) deciding to file a suit for Rs. 1,500/- being the balance oft rent due for Fasli 1361, and for Rs. 19/- being the arrear of interest for rent due for Fasli 1360. The resolution records that a report to that effect had been sent to the Assistant Commissioner, Hindu Religious Endowments and that the 2nd defendant had been authorised as managing trusee to file and conduct the above suit. By a resolution dated 28-2-1953 (Ex. B-8) the managing trustee was directed to realise the arrears in respect of Fasli 1381. In that resolution, there is an express recital that besides those arrears the tenant had to pay Rs. 2,860/- for Fasli 1362. In those circumstances, it is abundantly clear that by the time of (filing of O. S. No. 51 ot 1953, D. M. C, Peddapuram, the rent for 1362, corresponding to Nandana had become due. However, the suit was confined only to the realisation of the rent due for the year Khara and for interest due on the rent for Vikruthy. The claim for rent for 1362, i. e., Nandana, could have been included in that suit, but was not. Both the Courts have concurrently found that the claim for the rent for Nandana made in the present suit is barred by reason of the terms of Order 2, Rule 2, Civil P. C. and no decree therefore, can be passed against the 1st defendant for that amount. I am in agreement with that conclusion.
8. The result of the above finding is that the plaintiff-Devasthanam cannot recover the rent for the year Nandana from the 1st defendant. The question is whether the said amount can be recovered from the 2nd defendant. In the plaint, it is claimed that the rent for the years Xaudana and Vijaya has not been paid and credited to the Devasthanam accounts and so the plaintiff is entitled to recover the same either from the 1st or 2nd defendant. So far as the rent for the year Vijaya is concerned, no liability can be fastened upon the 2nd defendant in any case. That rent was obviously not paid by the 1st defendant and that is why both the Courts have granted a decree against him for that amount. In regard to the rent for the year Nandana, it is now found that no part of that amount has been received by the 2nd defendant from the 1st defendant. It is not, therefore, a case where the 2nd defendant having received the whole or portion of the rent for the Nandana year failed to credit it to the Devasthanam accounts. The basis upon which the Courts below have granted a decree against the 2nd defendant is that the 2nd defendant caused loss to the temple by not including the claim for Nandana in O. S. No. 51 of 1953. There is no suggestion of any bad faith on the part of the 2nd defendant or an improper or covinous attempt to defraud the temple and benefit the 1st defendant. The gravamen of the charge against him is negligence. It is this finding that has been severely challenged by Mr. Krishnarao, the learned counsel for the appellant.
9. The first contention of the learned counsel is that there is misjoinder of causes of action and parties and for that reason alone the suit should have been dismissed. Under Order 1, Rule, 3, Civil P. C. all persons may be Joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist. Order 2, Rule, 3, Civil P. C. enables a plaintiff to unite in the same suit several causes of action against the same defendant or the same defendants jointly. Now, in this case, it cannot be said that the right to relief against the two defendants arises out of the same act or transaction, and there is a common question of law or fact. The gist of the claim against the 1st defendant is the failure to pay the rent under the covenants contained in Ex, A-l-The gravamen of the charge against the 2nd defendant is negligence, in failing to include the Nandana rent in O. S. No. 51 of 1953. The learned District Judge, held, and in my view rightly, that there is in this case a misjoinder of causes of action and parties. Mr. Krishna Rao, contends that upon that finding the learned District Judge should have directed the dismissal of the suit. I do not thick the learned counsel is right in that contention. Section 99, Civil P. C. clearly states :--
'No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings id the suit, not affecting the merits of the case or the Jurisdiction of the Court.'
It has not been shown to mo how the misj'oinder or causes of action has affected the merits of the case, or the jurisdiction of the Court. There is, therefore, no substance in this contention.
10. It is then contended by Mr. Krishna Rao, that no decree should have been passed against the 2nd defendant on the foot of negligence. The learned counsel urged two considerations in support of his main contentions : (i) that there is no specific plea at all in the plaint regarding the negligence of the 2nd defendant; and (ii) that even on the assumption that there is negligence on the part of the 2nd defendant, no decree could have been passed against him in the absence of two other trustees.
11. I will now take up the first objection as to want of the specific plea in the plaint. The relevant paragraph in the plaint is this :
'VII: -- If for any reason, the entire amount claimed in this suit cannot be decreed against the 1st defendant, either because he proves he paid the same to the 2nd defendant and the 2nd defendant did not credit the said amount to the plaintiff-Deity or because the 1st defendant's liability is avoided by reason of any other cause for which the 2nd defendant was responsible or for whatever other cause the plaintiff is entitled to recover the amount disallowed against the 1st defendant from the 2nd defendant.'
12. From the paragraph of the plaint above extracted it is obvious that there is no express plea that the 2nd defendant was guilty of negligence in not having the claim for Nandana rent included in O.S. No. 51 of 1953. Mr. Venugopal Reddy, the learned counsel for the respondents contended before me that though the plea has not been taken in express terms, it is implicit in the language employed in paragraph 7 and the reason for not taking the plea expressly is that the plaintiff did not want to put the second defendant in mind of a possible defence based on Or. 2 Rule 2 C. P. C. I am bound to say that this explanation is not only ingenious, but extremely, naive. Be that as it may, the further question is whether by reason of there being no express plea, it was open to the court to go into the question of the negligence of the 2nd defendant. In Siddik Mahomed Shah v. Mt. Saran, A. I. R. 1930 P. C. 57 (L) Lord Dunedin enunciated the well known rule that 'no amount of evidence can be looked into upon a plea which was never put forward.' But the full reach of this rule has in some measure been circumscribed by the observations of the Supreme Court in Nagubai v. Shamarao, (S) A. I. R. 1958 S. C. 593 at p. 598. Refer, ring to Lord Dunedin's dictum, their Lordships observed as follows :
'The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence- But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon; and adduce evidence relating thereto.'
In support of the above view, the Supreme Court relied upon an earlier decision of the Privy Council in Rani Chandra Kunwar v. Narpat Singh, 34 Ind App. 27 (P. C.). Relying upon the observations of the Supreme Court, Mr. Venugopal Reddy contended that the evidence in regard to issue No. 2 and the trend of the cross-examination of witnesses in this case would show that the 2nd defendant was aware of the case he had to meet and, therefore, it cannot be said that any prejudice has been caused by the absence of the speci6c plea. There is, to my mind, considerable force in this contention.
13. The socond point raised by Mr. Krishnarao, is that even on the assumption that it is permissible for the court to go into the question of the second defendant's negligence even without a specific case, the conclusion that the 2nd defendant has been guilty of wilful negligence rendering him liable to make good the loss sustained by the temple is erroneous. It is argued by the learned counsel that this is not a case where the second defendant failed and neglected to file a suit, on behalf of the Devasthanam. He did file one for the arrears of rent. He engaged a counsel to whom the text of the resolution (Ex. B. 8) was shown. The Assistant Commissioner was also informed of their attempt to file a suit. If, in the plaint the claim for Nandana rent was not included, says the counsel it cannot be said that it is due to the wilful negligence of the 2nd defendant. It is suggested by Mr. Krishnarao that even trained lawyers are not infrequently mistaken about the full implications of Order 2 Rule 2, C. P. C. and in the absence of any bad faith or wilfulness, there is no warrant to fasten liability on the 2nd defendant. It is settled law that a trustee is bound to administer the affairs of the trust with that amount of diligence and care which an ordinary pendent man would exercise in the management of his own affairs. Mr. Venugopal Reddy invited my attention to a large number of decided cases and leading text-books on the law of trusts. The rule is well settled, and so far as the present case is concerned, we have the additional advantage of the express language of Section 24 of Act XIX of 1951 (The Madras Hindu Religious and Charitable Endowments Act), where it is provided that 'the trustee of every religious institution is bound to administer its affairs and to apply its funds and properties in accordance with the terras of the trust, the usage of the institution and all lawful directions which a competent authority may issue in respect thereof and as carefully as a man of ordinary prudence would deal with such affairs, funds and properties if they were his own'. The difficulty is not in the enunciation of the rule, hut in its application to the facts. It is not the law that whenever a loss accrues to the beneficiaries, the trustee is liable. That would he to equate the office of the trustee with that of an insurer. A trustee will be held liable only in the case of a wilful neglect for default causing loss, and it is only then that the question of reimbursement would arise.
14. It is contended by Mr. Venugopal Reddy that when loss occurs, a trustee is per se liable, and the onus of proving that the loss is not referable to his wilful negligence is upon the trustee. 1 do not want to pursue this aspect of the case further, in view of the conclusion [ have reached is regard to the last contention raised by Mr. Krishngrao.
15. The last argument of his is that no decree could have been passed against the 2nd defendant alone for anything done by him in the execution of a trust. It is common ground that at the relevant time, i. e., the filing of O. S. No. 51 of 1953, there were three trustees, and the second defendant was only the managing trustee. It is not in dispute that as a proposition of law all the trustees are Jointly liable for all acts of omission and commission. That is why Oder 31, Rule 2, C. P. C. enacts:
'Where there are several trustees, executors or administrators, they shall all be made parties to a suit against one or more of them'.
16. Mr. Venugopala Reddy, however, contended that Order 31, Rule 2, Civil P. C. cannot apply to a Dharmakartha of Hindu temple, as he is not a trustee in the strict sense of the term as understood in English law, but is only a manager.'. It is true that in Vidya-varuthi v. Baluswami, 48 Ind App 302 : (A I B 1922 P C 123) their Lordships of the Judicial Committee held that a Dharmakatha of a temple, or the head of a Mutt or a religious establishment, cannot be designated as a trustee in the sense in which that-expression is used in English law, but they are only managers, though by reason of the obligation resting upon them they may be answerable as trustees in a general sense. It is no part of my task in this case to go into the law regarding the jural character of the Dharmakartha of a temple. 1 say so because there is a statutory defni-tion ot the expression 'trustee' in Act XIX of 1951. which reads thus :
'A 'trustee' means any person or body by whatever designation known to whom or in which the administration of a religious institution is vested, and includes any person or body who or which is liable as if such person or body were a trustee'.
17. In the light of the above definition, I do not think there is any force in the contention that the second defendant and his other two colleagues are not trustees within the meaning of that expression used in Order 31, Rule 2, Civil P. C.
18. If, therefore, the second defendant is a trustee along with two others, in an action founded upon an act of omission on the part of one trustee, it seems to me that the two other trustees should also have been joined in the suit. Mr. Venugopal Reddy has referred me to a decision of the Calcutta High Court in Indu Bhusan v. Kiron Chandra, AIR 1940 Cal 379, for the proposition that when only certain trustees are known, to have committed a breach of trust the suit need not be brought against the whole body of the trustees. That was a suit filed under S. 92, Civil P. C., for accounts against the past trustees. The facts of that case are clearly distinguishable.
19. It is then contended by Mr. Venugopal Reddy that the failure to implead the two other trustees is not material in view of Order 1, Rule 9, Civil P. C., which enacts that no suit shall be defeated by reason of the mlsjoinder or non-joinder of parties. But, in my opinion, a 'distinction has to be made between non-joinder of persons who ought to have been joined and the failure to join persons whose presence is only convenient, or in some cases even proper. But, where under the terms of a statutory provision certain parties have to be impleaded and they have not been so impleaded, it cannot be contended that the provisions of Order 1, Rule 9, Civil P. C. ot S. 99, Civil P. C., can be pressed into service to cure the infirmity. Order 31, B. 2, Civil P. C., in express terms requires that all the trustees should be impleaded in a suit and the terms of Order 1, Rule 9 Civil P. C. should be read subject thereto. A similar question fell to he decided by a bench of the Allahabad High Court iu Ram Ghulam v. Shyam Sarup, AIR 1934 All. I at p. 3. It was there held that where a suit is instituted against a trustee, all the trustees should be impleaded. If this has not been done, no decree can be made against any of the, trustees. The learned Judges observed thus :
'It has been argued that under Order1, Rule 9, Civil P. C,, no suit can fail for non-joinder of parties. But this does not mean that only one trustee may be sued in contravention ot Order 31, Rule 2, Civil P. C., and a decree may be made against the trustee singled out for the suit.'
20. I am in respectful agreement with the view taken by the learned Judges. In this case, only one of the trustees has been impleaded and the decree was passed against him alone. All the trustees who were parties to the resolutions (Exs. B-7 and B-8) should have been impleaded. In fact, the learned District Judge has also taken the same view. He said :
'Hence there appears to be great force in the contention of the appellant that all the trustees are liable for not suing for recovery of the rent of Nandana year. As already pointed out, this must be. decided finally in a regular fresh suit wherein all the trustees will be added as parties.'
21. The view taken by the learned District Judge, in my opinion, is correct. But having held so, it seems to me that there was no warrant for the learned District Judge for decreeing the suit as regards the rent for Nandana year against the second defendant and driving him to file a suit for contributing against the two other trustees.
22. On a consideration of the various aspects of the case argued before me, I have reached the conclusion that the decree against the 2nd defendant is not sustainable. The judgments and decree of the Courts below are, therefore, set aside. This appeal is allowed. In the circumstances. 1 make no order as to costs.
MEMORANDUM OF CROSS OBJECTIONS
BY THE 2ND RESPONDENT.
23. The 1st defendant in the action has filed this Memorandum of Cross-objections. It relates to costs. Awarding of costs is always in the discretion of the. Court, and I am not prepared to say that the lower appellate Court has exercised that discretion in the matter of costs wrongly in depriving the cross-objector of the costs. There is no substance in the memorandum of cross-objections. It is accordinglydismissed, but without costs.
MEMORANDUM OF CROSS OBJECTIONS
24. The Devasthanam has filed this Memorandum of Cross-objections against the orders of the lower appellate Court depriving the successful plaintiff of costs. In the circumstances of this case, I am not prepared to say that the discretion of the learned District Judge was improperly or wrongly exercised. The memorandum of Crass-objections, therefore, fails and is accordingly dismissed, but with costs. Leave refused.