1. This is an appeal by the plaintiff against the decree of our brother, Kumaraswami Sastri, J., in C.S. No. 192 of 24 which was a suit brought by the plaintiff for a declaration of his hereditary right to the management of the temple of Sri Vittalnathjee in Ekambareswar Agraharam, Madras, and that the defendant has no right to cancel the power-of-attorney executed by him in favour of the plaintiff and for an injunction. The learned Judge dismissed the suit and the plaintiff appeals.
2. The facts of the case may be thus stated: In the year 1896 one Ganga Bai, widow of the plaintiff's paternal grandfather's brother, built a temple for Sri Vittalnathjee in Ekambareswar Agraharam and in 1900 she executed a Bhot Patra (Ex. A) in which she mentions the fact of her having built the temple in 1896 and got the idols of Sri Vittalnathjee and Sri Swaminijee installed therein and of having set apart a sum of Rs. 40,000 for the seva, puja, utsavams and other festivals of the deities and for the salaries of the temple servants. The sum was left with the plaintiff's father, Krishnadoss Balamukundoss of Giridoss Govindoss Company of Madras and he was to pay monthly a sum of Rs. 200 for the expenses. She then adds another Rs. 5,000 to the original fund of Rs. 40,000. She ways that the above properties, namely, the house in which the temple was built, the above funds and also cloths, jewels and vessels costing about 4,500 were settled upon the deities and were delivered possession of to the Guru of the family, namely, Sri Krishnavati Vahujee of the Udaipur Samasthanam. She also provides that the successors of the Guru should conduct the seva, puja, offerings, festivals etc. of the temple and that the funds should not be used by anybody for any other purposes. In 1904 the said Sri Krishnavati Vahujee, who was made the trustee of the institution under Ex. A, executed a power-of-attorney to Krishnadoss Balamukundoss giving him certain powers for managing the institution, the principal being a person who had to be constantly absent from Madras, namely, in Udaipur Samasthanam. This is Ex. 3. In 1906 Krishnadoss Balamukundoss died and the agency created by Ex. 3 must be taken to have terminated. The plaintiff stepped into his father's shoes and continued to look after the management of the institution, and in 1909 another power-of-attorney was executed by the same lady, namely, Sri Krishnavati Vahujee, to enable the plaintiff to look after the management of the temple (Ex. 4). In 1911 the principal, namely Sri Krishnavati Vahujee died. Again the contract of agency must be taken to have terminated. But the plaintiff continued to look after the management of the temple. In 1914 the successor of Sri Krishnavati Vahujee namely, her adopted son, Sri Gopeswara Laljee, gave a fresh power-of-attorney to the plaintiff (Ex. 5). To this power-of-attorney a schedule of the properties entrusted to him is attached. Items 1, 2, 3, 4, 8 and 9 therein show that the original funds of Rs. 45,000 were reduced to Rs. 39,000 and odd and both parties have recognized that was the sum then available for the purposes of the trust. The houses are described in items 5 and 6, and jewels and other moveables in items 7 and 10. In 1916 the same Sri Gopeswara Laljee executed another power-of-attorney to the plaintiff (Ex. 2) under which the power-of-attorney of 1914 was cancelled and larger powers were conferred upon the plaintiff. Some time before the suit which was filed in 1924 misunderstandings arose between the plaintiff and the Udipur Guru who is the defendant and the defendant purported to cancel the power-of-attorney, Ex. 2 on 28th February 1924. The present suit was therefore filed by the plaintiff for the reliefs already mentioned in March 1924. The learned trial Judge thought it was unnecessary to take oral evidence. He held that the defendant was entitled to cancel the power-of-attorney, Ex. 2, and that, if the plaintiff could at all complain of it, it was only by way of a claim for damages; he therefore dismissed the suit with costs.
3. On appeal it is contended before us that Ex. 2 was irrevocable because it was coupled with some interest of the plaintiff. The document itself purports to be an irrevocable power of attorney; but towards the end it is also provided therein:
that a power-of-attorney though irrevocably granted shall be revocable on strong proof of gross mismanagement on the part of the said attorney.
4. It is therefore clear that the document is not strictly, on the face of it, an irrevocable power-of-attorney, but it was a power-of-attorney irrevocable on certain grounds only but not on other grounds. This again means merely that it is an ordinary power-of-attorney coupled with a promise that it will not be revoked except on certain grounds. How far such a promise is enforceable by way of damages is another matter. It is obvious that such a promise which is the same as a contract to keep a servant on hire is not specifically enforceable see (1906) App, Gases 254. But it is contended by the learned advocate for the appellant that, apart from this promise not to revoke, the document is irrevocable because the contract of agency was coupled with some interest of the agent, that the fact that the temple was erected for the benefit of the plaintiff's family was alleged in the plaint and was the subject of the first issue and that the learned Judge ought to have taken evidence on this issue before deciding on the question of the revocability of the power-of-attorney. It is true that the question whether the plaintiff has any interest is not one covered by the terms of the power-of-attorney and therefore Section 92, Evidence Act, may not stand in the way of the plaintiff.
5. This brings us to the question whether the plaintiff has any interest, such an interest as is contemplated in Section 202, Contract Act. The plaintiff does not repudiate the Bhot Patra, Ex. A; on the other hand, he recites its contents without any disapproval in para. 14 of his plaint. It is not pretended that Ganga Bai and the plaintiff were members of an undivided family in respect of the sum of Rs. 45,000 or in respect of the sum spent for the purchase of the house in which the temple is located. On the other hand, the recital in the plaint is made on the footing that they were sums over which she had absolute control. We must take it on the admission in the plaint that the house and the property endowed were the absolute property of Ganga Bai and the plaintiff had no interest in those properties. No doubt there is a further allegation in the plaint that the endowment was made for the spiritual benefit of herself and the members of her family. Assuming that it was so such spiritual benefit cannot amount to an interest within the meaning of Section 202, Contract Act. We do not think therefore that the agency created by Ex. 3 is in favour of an agent who has got any interest in the property which forms the subject matter of the agency. Even if it were such an agency, it is doubtful whether Ex. 2 fulfills the requirements of Section 202 because the object of the agency was not to enable the agent to realise his interest. It is suggested by the learned advocate for the appellant that in this matter there is some difference between the English Law and Indian Law. The illustrations to Section 202 and the Indian decisions seem to proceed on the footing that there is no such difference. However, on the other view we have taken it is unnecessary to pursue this matter any further. We therefore think that the learned Judge was right in refusing to take any oral evidence as to the existence of any interest of the plaintiff. It follows that the defendant was entitled to revoke the agency under Ex. 2. As the plaintiff claimed no damages for the revocation against the covenant in the document, the question whether the plaintiff is entitled to any damages does not arise. The result is the appeal must be dismissed with (taxed) costs.
6. Mr. Rangachariar complained that the direction to the Official Referee to consider the amount of damages claimed by the defendant is misleading and may lead to an inquiry not intended by the learned Judge. As we understand this direction which is embodied in Clauses 4 and 5 of the decree it is intended to cover any actual loss caused to the property, funds and moneys by the defendant's management. Therefore, no further direction or modification is necessary. The defendant has filed a memorandum of objections complaining of the direction of the learned Judge limiting the taking of accounts to the period from 1916. The prior power-of-attorney was cancelled in 1916 and strictly any claim for taking an account of the period before 1916 would perhaps be barred. But it is necessary to make further observation on this matter because Ex. 2 refers to all the property mentioned in the schedule to Ex. 5 and describes the agency as one relating to those properties. Certainly the agent has got to account for those properties as from 1916, unless he accounts for any change in the properties in a manner which is satisfactory to the Court. Respondent 2 has substantially failed and she must pay the (taxed) costs of the memorandum of objections to the appellant.