1. The plaintiffs have asked for a declaration that the defendant Dharmakarta of the Hampi temple was properly dismissed by them. The dismissal was on the 17th January 1905. The Subordinate Judge has held that he was properly dismissed but his conclusion, in my opinion, is not correct.
2. In support of the Subordinate Judge's finding, three grounds of dismissal are relied upon by Mr. Govindaraghava Aiyar as justifying the action of the plaintiffs. The first is that the defendant failed to submit accounts to the Committee. The accounts, which were called for in 1895, were submitted by the defendant's agent and it is not shown that they were incorrect. Subsequent accounts, no doubt, were not rendered, because for the period from 1895 to 1904, they were not called for. In June 1895, the Committee illegally dismissed the defendant's agent and on the 23rd December 1895, dismissed the defendant himself and from that time onward, they refused to recognize him as Dharmakarta and they did, so far one can judge from the evidence, everything in their power to make his retention of the temple property and his management of the temple impossible. It is not necessary for the decision of this case, but it is clear to me, that the dismissal in 1895 of the defendant was as illegal as that of the agent. There was no ground on which he could properly be dismissed. It was not, therefore, his duty to give up possession and his retention of the temple property for the period from 1895 onward was not improper. Of course, he was not asked for accounts daring that period and he did not render them. It is suggested that he might have rendered accounts although he was not asked for them and, undoubtedly, he might have caused his agent to render accounts although he was not called upon to do so. But, considering the way in which the Committee were treating him at the time, it would be quite too much to say that his failure to volunteer accounts is a ground justifying his dismissal. Then we come to the period 1904 to 1905. The plaintiffs did, then, in paragraph 6 of Exhibit F-l, say that mamool accounts had not been sent in for the past nine years: and did, in a long list of the conditions which they attached to that document,--conditions with which the defendant was to comply if he desired them to re-consider their proceedings dismissing him,--embody a condition that these accounts should be submitted. Now it is suggested on behalf of the respondents, that this amounts to a proper demand by the Committee for the accounts which according to the Act it was in their power to demand. The actual reply was: You do not tell me whether I am to be treated as trustee or as having been dismissed: if you treat me as a trustee, I will do what is required of a trustee but till you do that, I cannot give up possession.' That is the effect of the answer to Exhibit F.l It seems to me that, taking the whole of Exhibit F.l together, it amounts to this: 'We have dismissed you in 1895. If you will comply with all these conditions we have set forth, hand over the temple to our deputy, give over the lands, give up the account books, and undertake to do a variety of other things hereafter, then we will be prepared to re-consider our dismissal order of 1895 and we may re-appoint you.' It seems to me that, so couched, it cannot be treated as a request by the Committee to the trustee for accounts.
3. Consequently, if the trustee either ignores that or simply says: 'I cannot accept all those conditions. If you will treat me as a trustee, I will act as a trustee not otherwise', that cannot be considered as a refusal to submit accounts which could justify the dismissal of the trustee. I put the case on the particular circumstances. No doubt, the Committee was entitled to ask for an account of the management of the temple but in the circumstances of the case, it seems to me that the failure to furnish accounts after 1895 cannot be considered as a circumstance justifying the dismissal of the defendant.
4. Now the second ground is that, owing to his continued absence from Hampi, the Dharmakarta neglected the duties of his office. The Subordinate Judge, no doubt, is of opinion that, without visiting Hampi, the defendant could not properly perform the duties of his office. The plaintiffs, however, appointed him in 1895 knowing that he was not likely to take personal part in the management. They agreed to have their work done by him through his agent Subba Sastry and they have not shown that his absence from the temple has caused any sort of injury or any pecuniary loss or any loss of prestige as it was suggested might have been occasioned by it. So far as the management goes, there is nothing shown in the case to suggest that it has not been properly carried on during the whole period from 1895--1905. Consequently, the plaintiffs having failed to show that any duties of Dharmakarta have been in any way neglected by reason of the absence of the defendant and it being clear that when the defendant was appointed it was not expected that he should take personal part in the details of management at the temple itself, it seems to me that his non-residence in Hampi since 1895 is not a ground on which to justify his removal from his office.
5. The third ground is the non-execution of a security bond. Now as to that, in the first place, this statute, Act XX of 1863, does Dot require a Dharmakarta to pay security. Therefore, there was no obligation upon the defendant to render security before he was called upon to do so and, so far as I can see, he was not called upon by the plaintiffs to do more than to require Subba Sastry to furnish security. Now the matter stands thus as regards Subba Sastry. Subba Sastry, on the 13th March 1895, was asked to furnish security and he replied on the 25th saying that he was ready to do so but he first wanted that the jewellery which he said had to be handed over to him or to his securities should be weighed and priced in the presence of some persons. Exhibit XIV(a) is not fully printed; only that portion which was put in evidence has been printed. But what we have of it refers to Subba Sastry's contention in Exhibit XXIV(a), and does not state that the Committee have refused to accept his proposal to weigh and price the jewels on that they have accepted it for, on the 17th June shortly after, we find he is dismissed. So that the question of security then goes. The Committee having nothing more to do with him, they did not want the security and he was not bound to furnish security. Then in 1904 in Ex. F2, notice to the defendant, we find a demand that the defendant shall state the names of persons in the Bellary and Anantapur Districts owning immoveable property whom he intends to produce as sureties in the event of the Committee accepting his reasons and re-appointing him to his office. He did not give any names and he was dismissed. I am unable to say he was bound to offer security at that time. The Committee did not tell him what security he was to find and to what extent and apart from this, it does not seem to have been incumbent on him to have security ready before it was decided whether to give him the office or not. In his reply, he refers generally to the fact that they were not treating him as Dharmakarta and said that when they did so, he would act as Dhamakarta and not before. He was probably wrong. It would have been probably better if he had directed his agent to send up accounts and if he had said: 'I am ready to furnish', that would have put him in a batter position and would have deprived the plaintiffs of any handle for the suggestion that he was worthy of dismissal. But I cannot think that his non-compliance with the demand in Ex. F-2 justifies his dismissal in the circumstances. In these three grounds, I am unable to find reasons justifying the dismissal of the defendant from his office. The Subordinate Judge suggests some other grounds which have been pressed before us, for example, that the defendant did not devise measures for the submission of regular accounts (it does not seem that he had much opportunity to do so) and that he was too big a man really for the work and he was not likely to do it himself, which is, of course, a matter which must have been taken into consideration by the plaintiffs when they appointed him. Moreover, as regards that, there is nothing to show that the defendant has not taken care to find in Subba Sastry a person who was perfectly competent to do the work. Then the Subordinate Judge says: 'He took no steps to rectify the mistakes pointed out by the auditor.' As to that, it is sufficient to say, supposing the auditor's report to be an impartial and fairly accurate one, that there were some defects in the method of account-keeping. Plaintiffs never suggested to the defendant or to his agent that a batter method of accounts should be adopted and indeed it is not shown that they even communicated the auditor's report to either the defendant or to Subba Sastry.
6. In those circumstances, it is difficult to say what steps the defendant could have taken to rectify the mistakes even if there really were any mistakes and certainly, when the auditor's report was brought to his notice in 1905, it was much too late to call upon the defendant to rectify the mistakes found in 1895. So, considering all these circumstances, those which were pressed upon us and those to which the Subordinate Judge has alluded, it seems to me that there is no justifying circumstances warranting the dismissal of the Dharmakarta,
7. I need, therefore, say nothing on the other points argued by Mr. Sadagopachariar for the appellant.
8. The declaration which the plaintiffs ask for cannot be given them and the suit must be dismissed with costs in both Courts.
Abdur Rahim, J.
9. I agree