1. These are appeals from a decree of the Temporary Subordinate Judge of Tellicherry. The suit was brought by four co-Uralars of a Malabar Desvaswom against the 5th co-Uralar, who has since died after the decree in the first Court and in whose place the present respondent, who succeeded him as Karnavan of the Tarwad, has been brought on record.
2. This is a very old Devaswom and during the troubles in Tippu's time four of the Uralars fled to Travancore and the fifth remained behind and looked after the Devaswom. But when the others same bask he was considered to have, to some extent, lost caste by the others. On the other hand, the Devaswom was greatly indebted to him. There were disputes existing from a long time as to what his position was exactly to be in view of the great services he had rendered and as to the moneys due by the Devaswom to him. After some litigation these questions were at length settled by the Karar, Exhibit IV this case, in 1859, and the present suit was brought for the enforcement of that Karar against the defendant, who represented the branch that remained in Malabar when the others fled to Travancore.
3. Prior to this suit there was another suit. That was Original Suit No. 324 of 1899 in the Court of the District Munsif of Quilandy for a similar relief by the predecessors of the present plaintiffs against the predecessor of the respondent, and a decree was passed declaring 'that the defendant shall not alone manage the affairs of the Devaswom and directing the defendant no longer to manage the said affairs alone,' and directing the defendant to pay Rs. 876 to the plaintiffs in settlement of all accounts. On appeal to this Court this degree was only modified in so far as it directed that this amount should be handed over to the other Uralars, the modification being that the then defendant should hold the sum of Rs. 876 in trust far the Devaswom until a Samudayi or managing agent was appointed pursuant to the terms of the Karar.
4. Subsequent to this a Samudayi was appointed by the plaintiff and one question in this case is whether he was rightly appointed. Notice is found to have been Rent to the respondent's predecessor, but he failed to attend. The Karar does not require that the appointment of the Samudayi or any other act to be done by the body of trustees should be unanimous, and, therefore, the abstention of the defendant's predecessor does not vitiate the appointment. It is also said that one of the other consenting trustees, the first plaintiff, was not a person entitled to take part in the appointment, because he was not himself the Karnavan of the Tarwad but the 6th plaintiff was. It is found that notice was sent to the first plaintiff by the desire of the 6th plaintiff, who had given him a power-of-attorney, and, therefore, the 6th plaintiff was duly served with notice through his agent and if he chose not to attend or sent an unqualified representative to take part in the discussion, that was immaterial as without the vote of the first plaintiff there was a majority in favour of the appointment of the Samudayi, who is the 5th plaintiff in the case. We must, therefore, differ from the Subordinate Judge and hold that the appointment of the 5th plaintiff was valid, and this is in accordance with the finding of the Die trio t Munsif.
5. Mr. Ananthakrishiia Aiyar addressed to us an ingenious argument based upon the terms of the Karar, which was designed to show that the power of appointment of a Samudayi was reserved to his client in consideration of the services which his branch had rendered to the Devaswom. We do not find any support for that contention in the terms of the Karar. What is reserved to him under the Karar is the right of dismissal. So far as the term of the Karar as regards the Samudayi goes, if he thinks it necessary, he may dismiss him in conjunction with the other members and if the other members will not join with him, he may still dismiss him, But there is nothing in the Karar to give him the power of sole appointment. That is evidently one of the matters which are intended to be reserved to the whole body of trustees. Similarly if the other trustees think that the Samudayi ought to be dismissed and if the respondent does not agree with them, they have similar power of taking action reserved to him under the Karar. We think that paragraph 1 of the lower Appellate Court's decree, viz., 'that in modification of the decree of the lower Court, it is declared that the Davaswom affairs should be managed jointly by all the Uralars in accordance with the Karar Exhibit IV' better expresses the position than paragraph 1 of the Munsif's decree viz., 'that the defendant do no longer manage singly the affairs of the plaint mentioned Kothamangalam Devaswom,' and that that modification should be retained. We think that this declaration affords sufficient relief to the plaintiffs in the circumstances of the present case and that it is unnecessary to grant an injunction against the present respondent, having regard to the fact that the original defendant to the suit is dead. We feel bound, however, to say that the Subordinate Judge has misconstrued the judgment and decree of the High Court in the previous suit, in so far as he considered that that judgment and decree had negatived the rights of the other Uralars which were recognised in the Lower Courts.
6. It is unnecessary to consider in this case whether the decree of the District Munsif in the previous suit amounted to any injunction or not. Whether it amounted to an injunction or not, it was not disturbed by the judgment of the High Court. The Subordinate Judge under the erroneous impression that the High Court had negatived the light of the whole body of trustees to appoint a Samudayi, has varied the decree of the first Court and ordered that the money due by the original defendant to the Devaswom should be paid into the Court; whereas the Munsif had ordered that the defendant should pay to the 5th plaintiff, the Samudayi, the amount found due in the previous suit and the present suit. We do not think that either of these decree can be supported in this respect. The position is that the original defendant in this suit, who was one of the trustees of this Devaswom, has been found in this suit to be accountable to the Devaswom in a particular sum. As the legal representative of the deceased trustee the present respondent is responsible for the amount of this debt to the extent of the assets of the deceased trustee in his hands, and it must be so declared in the decree. Mr. Madhavan Nair, however, for the other Uralars, wants a decree against the Illam of the late defendant and the present respondent, and this we think ho is not entitled to have as a matter of law in the absence of evidence that the money of the trustee has found its way into the hands of the Tarwad. All these trustees are Karnavans of their respective Tarwads and the trusteeship in incident to the position of the Karnavan. Their position as trustees has been considered by the Privy Council in Rajah Vurmah Valia v. Ravi Vurmah Kunhi Kutty 8 Suth. P.C.J. 382 : 1 Ind. Dec. 156 and by this Court in Ettisheri Edathil Samandan Chathappa Nambiar v. Pothera Kalloor Koman 26 Ind. Cas. 946 and Ravi Varma Rajah v. Ramasubramania Pottar 37 Ind. Cas. 392, and the result appears to be that the body of trustees, to use the language of the Privy Council, constitute a corporation, and the members of the corporation, according to the scheme of the foundation, are to be the Karnavans of these five Tarwards. But it does not follow from that that the Anandravans of these Tawards have either any rights of interfering with the management of the trust or any liabilities for breaches of trust which may be committed by the respective Karnavans in the discharge of their duties as trustees of the Devaswom. This does not appear to have been correctly appreciated by the lower Courts, and, therefore, before parsing a final decree, we have decided to call for a finding, whether the money for which the late defendant has been found accountable to the Devaswom, has been utilised for Tarwad purposes or mixed up with the Tarwad funds.
7. As regards paragraph 3 of the District Munsif's decree that 'the defendant do deliver up to the 5th plaintiff all the records of the Devaswom in his hand,' that must be modified because it is opposed to the terms of the Karar which gives the custody of the Devaswom records to the defendant. The direction as rewards the moveables mentioned in the schedule will stand.
8. The finding will be submitted within three months after the re-opening. Fresh evidence may be taken. Ten days will be allowed for filing objections.
9. In pursuance of the order contained in the above judgment, the Subordinate Judge of Tellicherry submitted the following
1. I beg to submit the following finding on the issue
Whether the money for which the late defendant has been found accountable to the Devaswom has been utilised for Tarwad purposes or mixed up with the Tarwad funds.
remitted to me by High Court Order, dated 20th April 1920.
2. The Devaswom appellants have, after remand, examined five witnesses, plaintiff's witnesses Nos. 15 to 19, and filed Exhibits from SS to HHH. Sankaran Namburdripad, the legal representative of the late defendant, has examined himself (D.W. No. 4) and filed Exhibits XXV to XXVIII.
3. Rs. 1,434 have been found accountable by the late defendant, Vishnu Nambudripad, to the Devaswom, Rs. 876 as per judgments Exhibit A to A2 during his management of the Devaswom from 1069 to 1074 (1894 to 1899) and Rs. 558 during his management of the same from 1083 to 1089 (1908 to 1914).
4. Exhibit DD is a plaint filed in 1914 by one Haji, alleging that the late defendant had assigned certain rents due to him from certain Dovaswom and Illam, tenants and so on. The plaint also recites that the late defendant had borrowed the money from Haji in order to pay off Devaswom Kist as well as Illam Kist and also to defrcy Illam expenses. The suit ended in a compromise decree, Exhibit DDI, against the Illam alone. Assignment to one and the same person of rents due from the two sets of tenants, Devaswom and Illam, would not be necessarily a mixing up of the two funds, especially as the purpose was to meet the expenses of both and further, the compromise decree shows that the assignment was, if anything, only to the detriment of the Illam,
5. Plaintiff's witness No. 16, Chathappan, is a sundries merchant, from whom the late defendant was buying articles on credit. Some of the articles are such as could have been purchased for the Devaswom. There are others like coffee, tobacco, tea which he could have purchased for the Illam or for his sambandam wife, alleged to be a Nambissan woman. The witness refers to various entries in his account books which recite: 'Received so many rupees on such and such a date as per chit.' The witness was a tenant of the Devaswom lands and liable to give 510 Edangalies of paddy valued at Rs. 51 and to pay Rs. 2 0-0 rent, and he says that he was given a chit of receipt in respect of the Devaswom rent and asked to credit the amount towards the amounts due to him for the price of articles bought from him. Of the entries only Exhibits VV (1)(1083) and WW to WW3 (1084 to 1085 and 1088) relate to the years of the late defendant's management. The obits spoken to are not produced corresponding to the entries Exhibits VV' and WW to WW2. Exhibit WW (3) entry gives credit only to Rs. 28 0-0 while the alleged corresponding shit, Exhibit XX, is a receipt for all the Rs. 53 Devaswom rent due from this witness. The explanation given for this discrepancy is that the late defendant received Rs. 25 in cash and allowed the witness to credit only Rs. 28. But, on the date of the entry, over Rs. 200 were due to the witness from the late defendant and does it look probable that the witness paid Rs. 28 cash to the late defendant? Exhibit YY is a chit receipt filed by this witness and he does not file the account book and the corresponding entry. Assuming all the points spoken to by this witness to be true, still the Devaswom rant dealt with comes to less than 720 Edangalies of paddy, which amount of paddy the Illam is entitled to get by virtue of the Devaswom Karar, Exhibit IV (1035).
6. P.W. No. 19, Krishnan Nair, produces a chit receipt Exhibit AAA from the late defendant for 1087, in which the late defendant asks him to pay the Devaswom rent to a Haji. The witness says that the late defendant had purchased rise from Haji and that ho was, therefore, asked to. measure out the paddy to him. There is no evidence for what purpose the rite had been purchased. The witness produces another receipt Exhibit ZZ, which is not for any one of the management years. The receipt acted the witness to pay the rent to one Raman and take his receipt. The witness admits that he did not take such a receipt from Raman.
7. Exhibits BBB to HHH and the deposition of the present respondent, Sankaram Nambudripad, show that the Illam could not make both ends meet and that the late defendant and his present successor have had to incurr debts. But the Devaswom is not alSO a rich one. While my predecessor found that the late defendant was not such a bad manager of the Devaswom (paragraph 9 of the judgment), it was found by the District Munsif (paragraph 38 of his judgment) that he was a bad manager of the Illam. The Anandravans of the Illam had to get their maintenance from the late defendant by filing suits against him and there was no good understanding between the late defendant and his Illam members. Exhibit XXVII judgment is a case in point. There was thus no motive for the late defendant to benefit the Illam at the expense of the Devaswom. He probably benefited himself or his Sambandam wife.
8. No doubt the late defendant held out (vide issue No. 6 in Original Suit No. 494 of 1914 and also paragraph 37 of his written statement) that he was not accountable to his 80 Uralans of the Devaswom, and that is also the altitude of his present successor. No doubt the late defendant did not file proper accounts of expenditure (vide paragraph 42 of the District Munsif's judgment) and the present man also promises to walk in the same footsteps. These circumstances may be grounds for ousting them from the management of the Devaswom, but they cannot saddle the Anandravans of the Illam with the sins of the late defendant, remembering the fast that the Anandravans have no right to take any part in the Devaswom affairs.
9. Turning to the oral evidence, first of all, there is the evidence of the Devaswom Shanti or priest, D.W. No. 1, who says in ore place, 'Even the Illam wages used to be given from the Devaswom.' This is in iross' examination. In chief he has stated that the Devaswom paid him 720 Edangalies and the Illam paid the balance of 360 Edangalies. He has also stated that it is his son who is officiating for him in the temple and that he is maintaining no accounts himself for the wages he received. His statement is not, therefore, of much value. P.W. No. 15, Paidal Kidavu, is a Village Munsif and a respectable man too. But his statement that the late de-defendant, a Nambudri Jenmi, made it a point in almost all years to squat upon his Pial, to send for the Devaswom tenants and collect rents from them and to pay openly to this Village Munsif the Devaswom and the Illam Kists is too sweeping to be believed. If he had filed the Kist receipts granted by him and the rent receipts granted by the late defendant and if the dates agreed, there would be more grounds for believing the statement of this witness. The witness says that there are three big Jenmis, that they do not go to him directly to pay Jema and that they send the money only through their Kariasthans. As it is, I can only believe that the witness seems to be more actuated with a feeling to help the Devaswom and has not considered if he could in diet the blow, that should fall on the late defendant, on his Illam's innocent Anandravans. The evidence of P.W. No. 17, Parameswara Pattar, is not of much value. He is a small stamp vendor and one of his visits to the Illam was in quest of Kanni mangoes worth annas 4. He says that the late defendant stored Devaswom paddy also in fie Illam. It is not proved that the Devaswom and any separate Pathayam or paddy-bin. P.W. No. 18, Gopalan Nair is no other than a clerk of one of the Vakils for the Devaswom in the District Munsif's Court. His evidence is vague and he does not say that the Devaswom had a separate bin in the Devaswom premises. When he says that he measured nut his Devaswom rent in the Illam premises, he is not able to give the years in which he did so. When he says that the paddy which he gave was mixed up with the Illam rents received by the late defendant, he is not able to mention the Illam tenants who measured out paddy. His evidence is useless.
9. I find that there is no evidence to connect the amount found accountable by the late defendant with any expenses made for the Tarwad or to say that the said amount or any portion thereof was mixed up with the Tarwad funds.