1. This is an appeal from the decree of the District Judge of South Arcot by which he removed the (defendant) appellant from his trusteeship of the Durga dedicated to Saint Hazareth Nur Mahomedsha Avulia at Panruti and the mosque attached thereto, and directed him also to pay to the trustee who would be appointed as his successor on behalf of the trust the sum of Rs. 3,052-8-3 which was found by the Judge to have been misappropriated by him, and further directed him to surrender possession of the durga and all its properties. The Judge also directed the Mahomedan Religious Endowment Committee to select a qualified person to be the trustee in succession to the appellant now removed, to whom the property was to be surrendered by the defendant.
2. The suit was brought by the plaintiff under Section 14 of Act XX of 1863 after having obtained the sanction under Section 18 of the Act to remove the defendant from the trusteeship and also to recover damages. The Nur Mahomedsha Avulia Durga and the mosque attached thereto are places of worship and pilgrimage for the Mahomedans residing at Panruti and in other places for which about 200 acres of land were granted by the Mahomedan Government as inam, which grant has been confirmed by the British Government. In the plaint the annual income is stated to be Rs. 3,000-0-0. The plaint states that the defendant was a trustee of the Durga and the mosque, appointed at the end of 1881 by the Religious Endowment Committee, that he has been guilty of various acts of misfeasance and malfeasance, that he has misappropriated large sums of money and raised encumbrances for no necessity, and that, therefore, he should be removed.
3. The defendant denied the various acts of mismanagement alleged against him, contended that the Durga did not fall under Section 3 of Act XX of 1863 and, therefore, the Temple Committee had no powers of superintendence over him. He pleaded that instead of having misappropriated any trust property, he had spent out of his own pocket about Rs. 10,000 for the support of the Durga which he says he is entitled to recover from the Durga estate.
4. Proper issues were raised in the case. The Judge decided that the plaint Durga falls under Section 3 of Act XX of 1863. He also decided that a married man is unfit to be a Jainashin Brand trustee of the plaint Durga according to the rules and custom p prevailing therein. He found also that the defendant has been giving long leases, often mortgaging the Durga lands without any necessity. He also found that one item of property which belongs to the institution was sold by the defendant for no necessity and that the proceeds are now claimed by him as his own. He further found that the defendant has not been keeping proper accounts and that on the whole he is unfit to continue as a trustee. As to the damages claimed he found that a sum of Rs. 3,052-8-3 has been proved to have been misappropriated by the defendant. For these reasons, he passed the decree already set out.
5. In appeal, it is contended before us that on the evidence adduced in this case the conclusions arrived at by the lower Court cannot be supported, and that, even if the defendant is removed from the trust management, the relief that has been granted is one which could not have been granted under Act XX of 1863.
6. We will consider the charges separately. As to the accounts, there is no doubt that the defendant as a trustee is bound to keep proper accounts. If the Durga does not come under Section 3 of Act XX of 1863 he may not be bound to submit them to the Committee, but he is, nevertheless, bound to keep separate and clear accounts of the Durga income and expenditure. In this case the Judge appointed a Commissioner to investigate the accounts and submit a proper report. In his report dated the Ist December 1902, he stated thus: 'The account books filed by the defendant cover nearly 18 years, i.e., from April 1881 to February 1899. They are all day-books with the exception of one which is but an apology for a ledger containing a few entries under a few heads for some months in the year 1881.
7. The other books which are all day-books are eight in number, the first six of which are of country sheets held together, like copy books, by running a thread through the middle so convenient that any sheet may be taken out or put in on purpose or at pleasure; and they are from April 1881 to end of November 1888 with intervening gaps, in some cases, of several months for which there are no accounts. The accounts are not ' closed in any year, nor is the account at the end of a book, closed and brought forward in the next book, in the case of the first three books; and in most cases the figures are not even totaled.
8. The last two books are bound ones and are from 7th December 1888 to 24th February 1899. The accounts of the ' previous books are not closed and brought forward in these.
9. Nor are these accounts confined to Durga matters. Accounts of defendant's transactions with the rest of the world, whatever their nature, and those relating to his bounty to his relations, friends, and dependants or mendicants - in short, all, his personal and private accounts - are jumbled up with the Durga accounts.
10. Again at the end of book I * * * * ten or eleven entries of lump sums of over one hundred Rupees each are made, which together make up a total of Rs. 2,788; and they are stated to be amounts spent for litigation and Durga festivals from 1877 to 1881. There are also other similar entries.
11. The Commissioner also stated that the defendant did not appear before him, though all efforts were made to secure his presence, and in conclusion he said: 'It is impossible to make' anything out of them, at all events, without a proper ledger.'
12. On that report the Judge issued an order again to the Commissioner with reference to the allegations in paragraph 19 of the plaint. In that paragraph there was a specific allegation that the defendant had misappropriated Rs. 2568-13-6 without entering the same in the accounts at all, and the names, of the persons were given from whom he had received that sum of money. The Commissioner was required to prepare a ledger with reference to those persons from whom various sums were alleged to have been received and misappropriated. The Commissioner if submitted a report in which he pointed out that the sums received according to the oral and documentary evidence adduced before him from the ten persons named amounted to Rs. 2,020-0-5 which were not credited in the accounts, but Rs. 650 of which related to a period of time for which no accounts had been produced. Allowing in favour of the defendant that the accounts for that period, if produced, might account for that sum of money, he found that the balance of Rs. 1,370-0-5 must be taken to have been misappropriated by the defendant, so far as the receipts relating to the persons referred to are concerned. He found there were also other encumbrances now subsisting on the properties. He was also confirmed in his view of the accounts already set forth and stated that the accounts can lead only to one conclusion, viz., 'that the defendant has all along regarded the Durga property and income as no other than his own private and personal property, and himself their absolute owner, accountable to none. During this investigation also by the Commissioner, the defendant did not appear, while the plaintiff produced witnesses and filed documents before him. Both the defendant's agent and his vakil were aware that the investigation was being carried on by the Commissioner.
13. The Commissioner was again directed to submit a further report with reference to matters other than those connected with the persons referred to in paragraph 19 of the plaint. In the course of that enquiry the defendant was represented by his clerk and the plaintiff by his own clerk; and where they were not able to agree the matter was brought to the notice of the Commissioner. After that enquiry so conducted, the Commissioner submitted another report. In that report also the Commissioner stated that his observations in the previous reports were confirmed by his fuller examination. The defendant gave to the Commissioner a statement, dated the 25th July 1903, expressing his inability to render any explanation regarding the lease or mortgage amounts of Rs. 2,020-0-5 or the sum of Rs. 1,370-0-5 mentioned in his previous report which was not credited in the books. From the abstract statement attached to this report it will appear that the defendant has to account for a sum of Rs. 1,682-7-10 exclusive of the sum of Rs. 1370 0-5 referred to above. The Commissioner also stated that it was not possible to find from the accounts even roughly the annual income of the plaint Durga. The Judge accepted the Commissioner's report and came to the conclusion that the accounts were not properly kept at all and directed the defendant to pay on account of the trust the two sums above referred to.
14. Two objections are taken before us so far as the first report of the Commissioner, in which he found that a sum of Rs. 2,020 has not been credited in the accounts, is concerned. It is argued that in coming to the conclusion that the defendant has misappropriated that sum of money he has not allowed in the defendant's favour the road cess which the plaintiff's 3rd witness, a Village Munsiff, admits had to be paid on the lands belonging to the Durga. According to that witness the road cess and the land cess came to about Rs. 150 per annum; and it is contended that for 18 years the total amount would come to about Rs. 2,700 and that as the road cess which was actually credited by the Commissioner in the defendant's favour amounted to a little over Rs. 700, credit for a further sum of Rs. 2,000 ought to be allowed to the defendant, and if so it would appear that there is no money to be accounted for by the defendant.
15. We are of opinion that the defendant has not proved that the sum of Rs. 2,700 has been paid for road cess and land cess. This objection was not taken before the Commissioner; on the contrary, he admitted, as we have already stated, that he had no explanation to give. The defendant could have produced receipts to show such payments to the Revenue officials. There is no evidence even now as to what the amounts were that were paid for those various years. For these reasons, therefore, we must hold that the defendant is not entitled to any credit for that sum. It is further argued that it appears from the evidence of the Commissioner himself that the account books from the year 1888 were regularly kept and, therefore, the defendant was not guilty of not properly keeping accounts. No doubt, the Commissioner says that two account-books, 7 and 8, were regularly kept. But that does not meet the objection above advanced by the Commissioner with reference to the mode in which the defendant kept his accounts. There were no separate accounts. There were no accounts for certain periods. The defendant treated the Durga property as his own in the account books; and the account books themselves are Recording to the Commissioner very suspicious. For these reasons, we are unable to say that the Judge was wrong in holding either that the accounts were not properly kept or that the defendant is liable to reimburse the sum of Rs. 1,370-0-5.
16. With reference to the other item of Rs. 1,682 it is argued before us that the defendant is entitled to a certain sum of money for his maintenance and as his personal receipts are stated to be Rs. 7,681-8-7 and the disbursements on his account are stated at Rs. 9,267, a sum of about Rs. 1,582 ought to be credited in his favour, and as the amount which he is alleged to have misappropriated amounts to Rupees, 1.682-7-10, it cannot be said that he has misappropriated any amount.
17. There appears to be force in this contention. The Jainashin according to the evidence in this case is bound to be a celibate and he is certainly entitled to lodgings, food and raiment, and perhaps for other necessary expenses he may have to incur. There is no evidence on either side to show what a Jainashin is entitled, if at all, to take out of the income for his own use. He is certainly not entitled to use the income for the benefit of his wife and relatives as he has done in this case. While, therefore, we are not prepared to uphold the defendant's contention, we are not at the same time satisfied that he acted dishonestly with reference to this amount. That they find a place in the accounts is in his favour.
18. It is also contended before us that the Judge's finding on the 5th issue is wrong. It was held in O.S. No. 2 of 1889 to which the appellant was a party, that the plaint Durga falls under Section 3 of Act XX of 1863. It was the appellant who there contended that he was trustee by appointment and that the Durga was an institution of the kind contemplated by the section aforesaid. We are not satisfied that the Judge is wrong. We do not think it necessary to discuss the evidence on this point as it does not affect the main question in this case, i.e., whether the defendant ought to be removed.
19. That he is entitled to recover from the Durga estate the amount he has claimed, there is no reliable evidence whatever to prove. There is no evidence that requires any consideration. The Judge has found that he has no private property of his own for advancing the amount claimed for the use of the Durga.
20. That he claimed the proceeds of, certain Durga lands as his own, is not now denied; but it is urged that it was only done in the course of the suit.
21. He has also not proved the necessity for the leases for long periods and the mortgage of Durga property. The Commissioner in his report of the 27th July has stated that he expressed his g inability to render any explanation.
22. It is then urged upon us that even on proof of these facts he ought not to be removed, but that he may be retained on conditions that may be imposed on him. We are of opinion that the defendant ought to be removed in the interests of the institution. We cannot find any reasonable excuse for the way in which the accounts are kept. It is impossible to ascertain from the accounts the income and expenditure of the Durga : they are inextricably mixed up with his own accounts, so that the Commissioner had to report a large sum of money as 'undistributable' i.e., which cannot be ascertained to have been received and spent on Durga or private account. He has misappropriated the sum of Rs. 1,370-0-5 and probably a larger sum which cannot now be traced. There is no explanation offered of his conduct in, not appearing, before the Commissioner to explain his accounts with reference to the sums received from the persons named in the plaint, which he is alleged to have misappropriated.
23. He claims a large sum of money from the Durga to which he is found not to be entitled, and it is evidently unsafe therefore to leave the Durga properties in his possession. We have also to bear in mind that a married man is unfit to be a Jainashin of the Durga according to usage, and according to the inam title-deed the endowment is to be continued 'so long as the rules regarding celibacy etc., are conformed to.'
24. As to the amount to be paid by him, we reduce it to Rs. 1,370-0-5 for the reasons already referred to.
25. Under Section 14 of Act XX of 1863 the Court may direct the removal of the trustee or manager. As the defendant is in possession of the Durga properties as trustee and manager, on his removal, he has to be relieved of his possession of the properties. So long as he is in possession he will be treated as a trustee liable to render accounts. He is entitled to get a discharge and to believed of all obligations as a trustee by the Court. It is necessary therefore to direct surrender of possession. If there is any person already competent to represent the Durga, possession may be delivered to him. If the power of appointment is shown to be nvested in any person, the decision in Gyana Sambandha Pandara Sannadhi v. Kandasami Tambiran I L.R. (1886) M. p. 375 shows that such person may be directed to make the appointment and possession may be delivered to him. If there is no person competent to represent the trust, we see no reason why a receiver should not be appointed to take charge of the estate. Under Section 14 of Act XX of 1863 damages may be decreed against the trustee. That provision implies that the damages decreed must be paid to some person representing the trust. The order that damages should be paid and possession delivered to some specified person is necessary to give effect to Section 14. The question to whom the possession is to be transferred is an incident of the declaration that the defendant is removed from the trusteeship. On the question whether we are entitled to appoint a trustee, there is a difference of opinion between Shephard J. see Sivayya v. Rami Reddi I.L.R. (1899) M. p. 223 and the learned Judges who decided Sheoratan Kunwari v. Ram Pargash I.L.R. (1896) A. p. 227. It is unnecessary for us to decide that question. But whether we have jurisdiction to appoint a trustee or not, we are entitled to direct a competent person to appoint a trustee and to direct delivery of possession to the person properly appointed. In this case the 2nd respondent has been appointed by the Religious Endowment Committee and possession may be properly delivered to him. The direction in the decree 'that such appointment be made within two months from this date' is unnecessary. The decree which therefore the Judge has passed is in accordance with the decision in Gyana Sambandha v. Kandasami I.L.R. (1886) M. p. 375. With this and the other modification above pointed out as to the amount payable, we dismiss the appeal with costs.