1. The appellant was the plaintiff in a suit for recovery of possession of certain properties with past mesne profits. The properties in question admittedly belong to a Devastanam of which the Zamindar of Sivagiri is the trustee. On 21st November, 1940, the Court of Wards, by an order under Section 18 of the Court of Wards Act, took over the superintendence of the Sivagiri estate, and on 28th January, 1941, a notification was issued to the effect that the superintendence of the trust properties had been taken over by the Court of Wards and the management entrusted to its manager. The properties now in suit were in 1933 held under a lease which was to terminate in two years' time. On 14th January, 1938, the respondent submitted a petition (Ex. P-1) to the Zamindar in which he prayed for the grant of a lease in respect of the suit lands, described as Arumugha Nayinarkoil Manibam lands for seven years, from fasli 1350 to fasli 1356 at a rental of Rs. 580 per annum, the petitioner offering to pay the rent in advance. On the same date an order was issued (Ex. D-8) to the effect that the Zamindar had sanctioned the lease and had received the advance rent of Rs. 4,060 and directed the execution of a muchilika in accordance with the conditions of sale. As a matter of fact no auction of the lease appears to have been held though there is some reference to an auction in Ex. D-8. The muchilika was accordingly executed on 18th January, 1938. When the Court of Wards took over the estate an enquiry was held into this lease and it was brought to the notice of the Court that though the rent might be deemed to be reasonable having regard to the fact that it was paid in advance two years before the lease began to run, the lease was in excess of the powers of the trustee with reference to Section 76(1) of the Madras Hindu Religious Endowments Act. It was also ascertained that the advance rent collected by the Zamindar had been appropriated by him and not credited to the Devastanam. The Court of Wards was at first inclined not to incur the expense of the litigation which would result from the cancellation of the lease and it requested the Hindu Religious Endowments Board to sanction the lease. This the Board quite properly declined to do. Thereupon the Court directed its manager to give notice of the determination of the lease and to take steps to recover possession of the property. Hence the present suit.
2. All the issues of fact have been found in favour of the plaintiff and it has been found that the lease in question is an unlawful lease not justified by any benefit to the temple and in excess of the powers of the trustee. The learned Subordinate Judge has however dismissed the suit on the view that Section 63 of the Court of Wards Act does not empower the Court of Wards to institute proceedings for the recovery of properties belonging to the Devastanam of which the ward is the trustee and which have been wrongfully alienated by the ward. Section 63 runs as follows:
If a ward is the hereditary trustee or manager of a temple, mosque or other religious establishment, or endowment, the Court, notwithstanding, anything contained in Section 22 of the Religious Endowments Act, 1863, may make such arrangements as it thinks fit for the discharge, during the wardship of the ward's duties as trustee or manager, provided that for the direct and personal management of the religious affairs of any such institution, establishment or endowment the Court shall appoint suitable persons other than officers of Government and that the Court shall as far as possible restrict its superintendence to the preservation of the property belonging to the institution, establishment or endowment.
Prima facie this section empowers the Court when the ward is a hereditary trustee of a temple to make such arrangements as it thinks fit for the discharge of the ward's duties as trustee, and the proviso making special provisions for the discharge of his religious duties expressly places within the Court's superintendence any duty connected with the preservation of the property. If, therefore, it was the duty of the ward as trustee of the temple to take such action as was necessary to recover the property which he himself had wrongly leased ignoring the interest of the institution, then, by this section, the Court of Wards is empowered to make such arrangements as it thinks fit to see that that duty is performed. Surely, in such circumstance the Court can through its manager, on behalf of the ward who is the trustee, maintain the suit to recover the property which has been wrongly alienated, always provided that such an action could be maintained by the ward himself if he were in active control of the trust. That such an action can be maintained by a trustee even when the wrongful alienation is due to his own act seems to be established. Mr. Ganapathi Iyer in his Hindu and Mahomedan Endowments (2nd edition) at page 532 summarises the power of the trustee or manager as follows:
If he alienates either by way of mortgage or sale for satisfaction of his debts or for no necessary purpose of the institution, he may himself in his capacity as manager, sue to set aside the mortgage and he will not be estopped from doing so.
The learned author quotes a large number of cases as authority for this position. This pronouncement has been approved by the bench consisting of Wallace and Thiruvenkatachariar, JJ., in Sivaswami Aiyar v. Thirumudi Chettiar (1928) 57 M.L.J. 219 in which the following passage occurs:
The decisions have gone to this extent, viz., that in the case of public trusts, religious or charitable, even the trustee who alienates can bring a suit for the recovery of the property and he is not personally estopped from doing so.
Other decisions to the same effect which have been quoted before us are Yasim Schib v. Ekambara Aiyar : (1919)37MLJ698 and Syed Ghulam Nabi Sahib v. Nagammal (1896) 6 M.L.J. 270. We have also been referred to a passage in Juggut Mohini Dossee v. Mst. Sokheemoney Dossee (1871) 14 M.I.A. 289. It seems to us to follow that if this suit had been brought by the zamindar of Sivagiri himself at the time when the estate was not under the superintendence of the Court of Wards he could, notwithstanding his own personal liability for the breach of trust in creating this lease, have sued on behalf of the temple to recover the property. It is therefore difficult to see how the Court of Wards which is charged with the duty of making arrangements for the discharge, during the wardship, of the ward's duties as trustee, cannot through its manager maintain such a suit.
3. The learned Subordinate Judge has taken the view that because the Court of Wards acting under Section 63 of the Court of Wards Act cannot exercise all the extraordinary powers given to it in the earlier sections of the Act with reference to the non-trust properties of the estate, it has no power to recover the properties of the trust estate which have been wrongly alienated. It seems to us that this conclusion is based on a failure to appreciate the full effect of Section 63. We do not think it necessary to go into the question which has been discussed at length by the learned Subordinate Judge regarding the powers of a de facto trustee to sue to recover wrongly alienated properties of the trust. In our view there is no question of a de facto trustee here. The trustee is the zamindar who is a de jure trustee, whose powers are by statute exercised by the Court of Wards through its manager.
4. An attempt has been made by Mr. Subramaniam Chettiar for the respondent, to justify this alienation on the ground that the rent paid was adequate and the property is one which necessarily has to be leased. By the terms of Section 76(1) of the Madras Hindu Religious Endowments Act the lease for a term exceeding five years of immoveable property belonging to a temple is not to be valid or operative unless it is necessary or beneficial to the temple and is sanctioned by the Board or the Committee as the case may be. Quite apart from the fact that this lease was for seven years, it had the most undesirable feature of an advance payment of rent made two years before the lease was to begin, the whole of the rent being appropriated to the private purposes of the trustee and no attempt has been made to show that there was even an apparent necessity for the temple to make such an inappropriate form of lease. It seems to us that the lease was clearly not beneficial to the temple and that it must be set aside.
5. Turning to the question of mesne profits, the trial Court has found that the proper rate of profits for the years in respect of which the past mesne profits are claimed is Rs. 2,205 per annum and has left future mesne profits to be determined in execution. We find that the claim for mesne profits is restricted in the plaint to a sum of Rs. 11-4-7, i-e., profits for two days. This amount must be decreed and the rate of future mesne profits will have to be determined in execution. It is, however, apparent to us that the respondent should not be required to pay mesne profits without being given credit for the amount of rent which he has already paid for those particular years. From the documents filed in the case by the Court of Wards it is clear that the Court of Wards is treating the amount of this rent appropriated by the zamindar as a loan repayable without interest by the estate to the Devastanam. The Devastanam will, therefore, in due course if it has not done so already collect from the zamindar's estate the sum of Rs. 580 per annum. The future mesne profits recoverable from the respondent for the years for which the lease still had to run will be determined in execution and will be payable by the respondent less the sum of Rs. 580 per annum. The appeal is therefore allowed and the suit will be decreed accordingly with costs here and in the Court below.