Skip to content


Samanthan Karakkattidathil Unnamman Nayanar Vs. theyakkandi Edathil Kunhiraman Nambiar and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKerala High Court
Decided On
Case NumberAppeal Suit No. 566 of 1958
Judge
Reported inAIR1964Ker204
ActsHindu Law
AppellantSamanthan Karakkattidathil Unnamman Nayanar
Respondenttheyakkandi Edathil Kunhiraman Nambiar and ors.
Appellant Advocate T. Narayanan Nambiar and; T. Karunakaran Nambiar, Advs.
Respondent Advocate K.P. Madhava Menon, Adv.
Cases ReferredPeary Mohan v. Manohar
Excerpt:
.....and defendant no. 1 co-trustees of 'devaswom' and defendant no. 1 have 'saswatham' right in suit properties challenged - suit properties admittedly belonged to 'devaswom' of which defendant no. 1 is trustee - defendant no. 1 cannot claim to have 'saswatham' right in suit properties - plaintiff not entitled to claim tenancy over suit property - income derived from suit properties by plaintiff and defendant no. 1 bound to be spent for purposes of 'devaswom' - both cannot make any profit out of it - co-trustee entitled to recover from defaulting trustee who derives personal benefit from breach of trust - plaintiff entitled to decree for recovery on behalf of 'devaswom' of any amount not spent by defendant no. 1 for purpose of temple. - - 6. the trustee of a devaswom, like any..........the 1st defendant's tarwad having been in management of the devaswom in 1042 m. e. leased the suit properties to thavarool puthiyedath tarwad on rent of 1750 seers of paddy per annum. in (x s. no. 297 of 1923 the tenant's rights were brought to sale and purchased by one qthenan nambiar, who assigned the same to the plaintiff's tarwad. treating the plaintiff as the lessee of the property under him the 1st defendant obtained decrees for rent in o. s. nos. 307 of 1951, 312 of 1954, 992 of 1955 and 266 of 1956 and had realised the amounts under the first two decrees. the latter two decrees remain to be executed. in the present suit the plaintiff seeks declaration that he is now the managing trustee of the devaswom entitled to collect the rent of the suit properties and that the 1st.....
Judgment:

M. Madhavan Nair, J.

1. The suit properties belong to Pulimpidavn Devaswom of which the plaintiff and the 1st defendant are the hereditary trustees- The 1st defendant's tarwad having been in management of the Devaswom in 1042 M. E. leased the suit properties to Thavarool Puthiyedath tarwad on rent of 1750 seers of paddy per annum. In (X S. No. 297 of 1923 the tenant's rights were brought to sale and purchased by one Qthenan Nambiar, who assigned the same to the plaintiff's tarwad. Treating the plaintiff as the lessee of the property under him the 1st defendant obtained decrees for rent in O. S. Nos. 307 of 1951, 312 of 1954, 992 of 1955 and 266 of 1956 and had realised the amounts under the first two decrees. The latter two decrees remain to be executed. In the present suit the plaintiff seeks declaration that he is now the managing trustee of the Devaswom entitled to collect the rent of the suit properties and that the 1st defendant has no 'saswatham' right in the properties as claimed by him, to restrain the 1st respondent from executing the decrees any further, and to realise from him the rent of the Devaswom properties collected by him and not been spent for the Devaswom.

2. The defendants claim the suit properties in 'saswatham' right under the Devaswom and the plaintiff a lessee thereof, deny the plaintiff's beingthe managing trustee of the Devaswom and assert the income of the properties to have been spent for purposes of the Devaswom.

3. The Court below found the plaintiff and the 1st defendant co-trustees of the Devaswom, and the 1st defendant to have saswatham right in the suit properties and dismissed the suit. Hence this appeal by the plaintiff.

4. The finding of the Court below that the plaintiff and the 1st defendant are the present hereditary trustees of the Devaswom is not challenged before me by either side.

5. The 1st defendant claims a Saswatham right in the suit properties under the Devaswom and that has been found by the Court below. The claim is that the tarwad of the 1st defendant has to conduct certain daily poojas in the temple and as consideration thereof has been granted the suit properties in saswatham right, and that it is by virtue of that right that he has demised the properties to Thavarool Puthiyedath tarwad of whom the plaintiff is the present assignee.

6. The trustee of a Devaswom, like any other trustee, shall not use or deal with the trust property for his private advantage.

7. Ganapathi Iyer, in his wellknown treatise, Hindu and Mohammedan Endowments, 2nd Edn., page 604, observed:

'A trustee must not lend trust-money to himself. The principle is that a trustee must not in any way make use of the trust property or his position as trustee for his own interest or private advantage, nor may he enter into engagements in which he has, or can have, a personal interest which conflicts, or possibly may conflict, with the interests of those whom he is bound to protect. Thus a lease of trust property to oneself or to the tarwad of which the trustee is a karnavan or a member or to a co-trustee will be invalid ... The general principle is well-established that a trustee cannot obtain any pecuniary benefit.'

8. In his Book 'Hindu Law of Religious and Charitable Trusts', 2nd Edn., pp. 227, 285 and 287, B.K. Mukherjee has also observed:

'Like the trustee in English Law, a shebait has to act gratuitously and he cannot charge the Debutter estate for any remuneration on account of the time and labour he spends over its affairs ...... The law is well established that in the absence of any provision in the deed of dedication or any usage to that effect, a shebait has no right to take any portion of the income of the Debutter estate nor even the surplus that remains after meeting the expenses of the deity ...

A shebait who has accepted the office of a shebait or acknowledged himself as such is incapable of asserting any hostile title against the idol or setting up jus tertii in others. This disability is implicit in any person who holds a fiduciary position in relation to another ...

A shebait like a trustee in English law must not use or deal with the debutter property for his own private advantage. He must not import the trust money into his own business or use it for his own financial gain. If he does so, he will be regarded as a constructive trustee for the profits hemade. He cannot lend the idol's money to himself, and generally speaking he cannot enter into any engagement or contract in which his personal interest may conflict with his duties. As a corollary to this doctrine, a shebait cannot purchase a debutter property of which he is the shebait even when sale is in execution proceedings, and the shebait has paid the full market value of the property. Peary Mohan v. Manohar, 48 Ind App 258 : (AIR 1922 PC 235)'.

9. It then follows that the 1st defendant cannot have or claim to have a saswatham right in the suit properties which admittedly belong to the Devaswom of which he is a trustee; likewise the plaintiff also cannot have or claim to have a tenancy in them to his advantage. Whatever income the plaintiff or the 1st defendant derives from the suit properties they are bound to account to the Devaswom and to spend for purposes of the Devaswom only. Neither can he make any profit out of it. The suits in O. S. Nos. 992 of 1955 and 266 of 1956 were misconceived and mislaid in assertion of a saswatham right in one and a tenancy in the other.

10. That the 1st defendant himself is aware of this well established proposition of law is clear from the evidence on record. Ext. A-21 is an objection moved by the 1st defendant to the attachment of the suit properties in execution of a decree against him. His contention there was that he had no interest of his own in the suit properties of which he was only a trustee. That objection was upheld by the executing Court and the properties released from attachment.

11. The finding of the Court below that the 1st defendant has saswatham right in the suit properties has to be and is vacated.

12. The plaintiff has been asserting misappropriation of the income of the fust properties by the 1st defendant. The assertion of a saswatham right and that as a consideration for services by the 1st defendant lends colour to the same. The 1st defendant is not entitled to take any portion of the income of the temple properties for himself. A case for accounting is therefore indicated in this case. But, it has to be remembered that a trustee is not ordinarily entitled to call his co-trustee to account. His right and his duty is to join with his co-trustee in the administration of the trust. One trustee cannot sit on a gadi leaving the other to exert himself in the management of the trust and then call the latter to render account of his dealings to him. All must look after the management. If one trustee delegates the execution of the trust to the other, the act of the latter must be regarded as the act of both. Normally therefore a suit may not lie for settlement of accounts between co-trustees. There is however an exception to this rule, pointed out by Ganapathy Iyer in Hindu and Mohammedan Endowments, page 632 :

'If, however, the defaulting trustee derives a personal benefit from the breach of trust or if the default consists in his misappropriating the trust funds, the other co-trustees may be entitled to recover from the defaulting trustee.'

13. There will therefore be a decree for rendition of accounts (sic) the 1st defendant. Amountswhich the 1st defendant had spent for the temple, if that much be proved, would be beyond challenge by the plaintiff. The plaintiff will not be heard to say that any amount has been overspent or was not necessarily spent for purposes of the temple. All that he is entitled is to be convinced that the amounts collected by the 1st defendant have been spent for the temple and to have a decree for recovery on behalf of the Devaswom of any amount not been so spent. The appeal is allowed to the extent indicated above and dismissed in other respects. In the circumstances both parties shall bear their respective costs throughout.


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