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(Kosuri) Gopalacharyulu and anr. Vs. Gadde Lakshminarayana and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Socities
CourtChennai
Decided On
Reported inAIR1929Mad87; 114Ind.Cas.650
Appellant(Kosuri) Gopalacharyulu and anr.
RespondentGadde Lakshminarayana and ors.
Cases ReferredMahomed Jafar v. Mahomed Ibrahim
Excerpt:
- - the subordinate judge has found that the defendants have been bona fide thinking that their duties were only to do daily service, as archakas are ordinarily expected to do, and to enjoy the lands. at the time of the inam inquiry they failed to come forward to assert any claim they might have to the inam and therefore the inam commissioner held that the dedication was to the temple itself and if the defendants wished to controvert that finding, they must show in what manner they proposed to do so. 243, is an example, where, if bona fides are proved in a case like the present, it has been held that it is unnecessary to remove an archaka or trustee from his position as such. if such appropriation is a breach of trust, as in my opinion it is, it is perfectly obvious that no length of..........the trusteeship. on the first point it is argued that the defendants have all along acted in a bona fide manner and although they may have appropriated some of the income of the trust property to their own use, they did so under the bona fide belief that they were the owners of the property and were only bound to spend what was necessary for the daily service in the temple. the subordinate judge has found that the defendantshave been bona fide thinking that their duties were only to do daily service, as archakas are ordinarily expected to do, and to enjoy the lands.2. the evidence on which this finding is based is not set out and on the evidence which has been placed before us it is difficult to see how such a finding can be supported. the only evidence we have as to the dedication.....
Judgment:

Phillips, J.

1. These are appeals from the decrees preliminary and final, in a scheme suit. The appellants are the defendants who were impleaded as trustees of the suit temple. The appellants pleaded that they were not trustees or managers but were Archakas of the temple in whom were vested the suit lands. It has now been found that they were de facto trustees inasmuch as they were in possession and management of the temple properties and had the income of the temple and its properties in their hands. Objection is taken here to the order directing the defendants to account for the moneys received by them during the last six years and also to the order removing them from the trusteeship. On the first point it is argued that the defendants have all along acted in a bona fide manner and although they may have appropriated some of the income of the trust property to their own use, they did so under the bona fide belief that they were the owners of the property and were only bound to spend what was necessary for the daily service in the temple. The Subordinate Judge has found that the defendants

have been bona fide thinking that their duties were only to do daily service, as Archakas are ordinarily expected to do, and to enjoy the lands.

2. The evidence on which this finding is based is not set out and on the evidence which has been placed before us it is difficult to see how such a finding can be supported. The only evidence we have as to the dedication of the lands is the inam register of 1860. From that it appears that the inam was granted to the temple and we do not oven find the names of the defendants' ancestors mentioned in the register. At the time of the inam inquiry they failed to come forward to assert any claim they might have to the inam and therefore the Inam Commissioner held that the dedication was to the temple itself and if the defendants wished to controvert that finding, they must show in what manner they proposed to do so. The contention now is that as they are Archakas performing duty in the temple they must necessarily have some beneficial interest in the property, because their services are for the benefit of the temple. It is sought to be supported by the remarks in Vidya Varuthi v. Balusami Ayyar A.I.R. 1922 P.C. 123, but in this present case there is nothing to show that the Archakas and their duties were ever considered when the grant of inam was confirmed and certainly no reservation of any interest in the property was made by the Inam Commissioner. As to the nature of the original grant we have of course no evidence at all and we must be guided by the said inam register. If no reservation is made, it follows that the whole of the beneficial interest in the property belongs to the temple. When, therefore, the defendants appropriated part of the income to their own use, they certainly cannot be said to have acted bona fide, and they do not plead that they were misled by any circumstances which would go to show that they had been given such an interest. In their written-statement they disclaimed the managership of the suit property and pleaded that their ancestors had been in possession of it for 200 years but not as trustees or managers. There being no reason why they should have thought that they had a right to a portion of the property they cannot be said to have acted bona fide in appropriating the income in the face of the very clear evidence of the inam register that the property belonged wholly to the temple. If they were not bona fide they certainly are bound to account for the moneys that came into their hands and that has been directed by the lower Court and as the result of the inquiry they have been ordered to pay a certain sum of money and the amount is not questioned now in appeal.

3. An argument was addressed to show that the defendants must be deemed to have a right in the property according to custom. This custom certainly has not been proved. An enquiry was held in 1859 and in that inquiry any such right was negatived so that any custom, if it can be so called, must have arisen after that date, and cannot have the force of law. As regards the utilization of the surplus receipts, it appears that there has been no surplus except in recent years since the lands were converted from dry into wet. Therefore a custom of utilizing this excess for defendants' own benefit certainly cannot be upheld. The other point relates to removal from trusteeship; it is not suggested that defendants were hereditary trustees, for in their written-statement they have definitely said that they were not managers or trustees. They appear to. have usurped the office and therefore they have no special claim to be retained therein. In certain cases where the breach of trust has not been of a heinous nature, Courts have held that removal from hereditary trusteeship is too great a punishment. I may refer to Annaji v. Narayan [1897] 21 Bom. 556, and Mahomed Jafar v. Mahomed Ibrahim [1901] 24 Mad. 243, but no consideration of that {sort is apparent in this case. Defendants have not been bona fide in their acts nor are they hereditary trustees. The removal, therefore, must be upheld.

4. Coming to the scheme which has been framed by the lower Court, it appears that there are one or two objectionable features therein. With reference to the judgment in the Full Bench case in Veeraraghavachariar v. Advocate-General of Madras A.I.R. 1927 Mad. 1073, the scheme must be modified in several respects. Clauses 18 and 19 are ultra vires and must be deleted. In Clauses 1, 3, 5, 13, 14, 15 and 17, the words: ' The Religious Endowment Board ' will be substituted for the words the Court. ' In Clause 6 the words after ' qualified person ' will be deleted. In Clause 10 of the last line viz.,

and shall also remit a copy thereof to the Court

will be deleted. With these modifications the scheme is approved and the appeals are dismissed with costs. One vakil's fee in both appeals. The memorandum of objections is not pressed and is dismissed with costs.

Odgers, J.

5. I agree. It seems to me that on the facts of the case the defendants cannot be said to have bona fide believed that they were entitled to appropriate to themselves the whole of the income of the temple property so long as they performed the temple services, but they must be taken to have known of the inam register in which the inam is dedicated to the deity and no name of any Archaka or manager is associated with that deity. It may be that there are cases, as pointed out by my learned brother, of which Mahomed Jafar v. Mahomed Ibrahim [1901] 24 Mad. 243, is an example, where, if bona fides are proved in a case like the present, it has been held that it is unnecessary to remove an Archaka or trustee from his position as such. The appellants in this case were not hereditary trustees but hereditary Archakas and they have not been removed from the latter position; but a trustee has been appointed under the scheme in order to control the expenditure of the temple and its affairs generally. This the Archakas of course resent; but they have not proved their bona fides and in my opinion they exercised control of the property or money connected with the temple which they had no right to do. This has now been brought to an end by the scheme under appeal.

6. With regard to custom, it is very difficult to say on what legal basis this could exist. There is obviously no customary breach of trust that can be relied on. It is said that, as the defendants believed for a very long time that they had the right to appropriate the temple income, they must therefore be deemed to have established a custom to so appropriate it. If such appropriation is a breach of trust, as in my opinion it is, it is perfectly obvious that no length of time will legalize it. The custom of appropriating the surplus income, if one may call it so, must, as my learned brother has pointed out, have arisen quite recently because it appears as a very strong probability from the evidence that there was no surplus income until the temple lands were converted from dry into wet and this was only five or six years ago. This may account for the very small amount of surplus income that has been debited against the defendant. The accounts have not been attacked by the respondent so that it is sufficient to say that they must be taken as correct, though in my view there are some instances favourable to the appellants. I agree with my learned brother's remarks on the details of the scheme.


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