1. The appellant who was the defendant in trial Court is an arehaka in possession of lands alleged to belong to a temple in a village situated within the Ami estate. On 27th January 1932 the Court of Wards which was then in charge of the estate dismissed the defendant from his office of arehaka on the ground that he had failed to render service and had failed to give any explanation to the charges connected with his default. After the dismissal the suit was filed by the Jagirdar represented by his next friend the manager of the estate under the Court of Wards as trustee of the temple to recover possession of the lands connected with the arehaka service. Certain dates are of importance. The late jagirdar of Arni died on 25th June 1931. The order of dismissal of the defendant was passed on 27th January 1932. The suit was filed on 22nd April 1932; and on 23rd November 1932 after the suit had been filed but before it was decreed there was a notification making the new jagirdar a ward under the Court. It is common ground that in the interim between the death of the old jagirdar and this notification the Court of Wards continued in charge of the estate. In the trial Court the defendant pleaded that the trusteeship did not vest in the jagirdar that the land was not recoverable, that the dismissal was invalid, that the defendant had established adverse possession and that the suit was not maintainable when no fresh arehaka had been appointed.
2. The trial Court held that the plaintiff was the trustee of the temple that the dismissal was not valid owing to the absence of evidence of failure to render service, that the inam is the property of the temple, that the plea of adverse possession was bad and that the suit was not maintainable when no new arehaka had been appointed. As a result of these findings the learned District Munsif gave a decree in the interests of the institution declaring that the plaintiff was the trustee of the suit temple, that the suit lands were inam lands dedicated to the temple and that the defendant was an arehaka under the plaintiff; but the suit was dismissed so far as it prayed for possession of the lands. There was an appeal by the plaintiff and no memorandum of cross-objections by the defendant. The lower Appellate Court therefore held that the declarations embodied in the trial Court's decree would hold good in the absence of any memorandum of cross-objections. On the other issues the lower Appellate Court held in favour of the plaintiff and decreed the suit with costs.
3. Now the main contentions in appeal relate (1) to the refusal of the lower Appellate Court to re-open the question of the trusteeship in the absence of a memorandum of cross-objections, (2) to the question of limitation, (3) to the validity of the dismissal, and (4) to the effect of the absence of any notification declaring the new jagirdar a ward of the Court (a) on the order of dismissal and (b) on the maintainability of the suit. There is little substance in any of the contentions except the last one. I am of opinion that the lower Appellate Court was quite right in not allowing the correctness of the declarations embodied in the trial Court's decree to be canvassed in the absence of a memorandum of cross-objections. So much follows from the terms of Order 41, Rule 22, Civil P.C. It is not a case in which the dismissal of the suit can be supported with-out traversing the grounds upon which the defendant has failed to convince the trial Court. It is a case of a specific declaration not prayed for by the plaintiff but added to the dismissing decree by the trial Court expressly in order to safeguard the interests of the institution. If the defendant had a grievance against the embodiment of this positive declaration in the decree, he should have taken objection to it in a for. mal way and no such objection having been taken, it must, I think, be inferred that the lower Court's declaration is conclusive.
4. Nor is there any substance in the contention based on limitation and adverse possession. The contention is that there was an earlier dismissal order in 1914 which the defendant ignored remaining in possession of the lands and rendering such service as he thought was obligatory. If these facts stood alone, it might be argued that he had at least established a right to retain the lands subject to the minimum of service which he admitted to be required of him.
5. But there was another proceeding in 1923 in the course of -which the defendant gave an explanation to the trustees which can only be read as admitting the power of the trustee to control his office and his enjoyment of the emoluments thereof. In such circumstances there can, I think, be no question of any prescriptive right in the defendant adverse to the trust. The argument regarding the invalidity of the dismissal has no merits unless it can be based on the technical ground that the Court of Wards had no authority at the time of the dismissal. There were proper charges framed relating to the service; the defendant was given due notice of those charges and required to submit an explanation which he contumaciously refrained from giving. In such circumstances the only possible course for the controlling authority would be to remove him from office and if that authority was empowered to do so, no Court could rightly hold that the dismissal was wrong.
6. There remains the question of the consequence of the absence of any notification under the Act at the time when the dismissal order was passed and when the suit was filed. Section 57, Madras Court of Wards Act, gives certain limited powers to the Court of Wards to retain possession of an estate on the death of the ward. Section 58 imposes certain limitations on the successor to the estate when the Court of Wards has decided thus to retain possession. Neither of these Sections can, in my opinion, be taken to authorize the Court of Wards, in the absence of a notification, to continue to function as trustee of a temple of which the ward is the hereditary trustee. Therefore, on the death of the late jagirdar, his successor having taken no steps to assume the control of the trust properties and the Court of Wards continuing to administer those trust properties under the impression that it was legally entitled to do so, the position of the Court of Wards would be that of a de facto trustee, It was managing the temples in the interests of the trusts under the bona fide impression that it had a power and a duty to do so. It seems to me that a de facto trustee of a Hindu temple has those powers which are conferred upon a trustee under the Hindu Religious Endowments Act. Section 9(13) of that Act defines a trustee as, a person, by whatever designation known, in whom the administration of a religious endowment is vested and includes any person who is liable as if he were a trustee.
7. This definition clearly would include a de facto trustee administering the trust honestly and holding himself liable for the properties of the trust. Under Section 43, the control of office holders and servants attached to the temple is vested in the trustee and a special machinery is provided for appeals by any such office holder or servant who is aggrieved by the decision of the trustee. I have held in a recent case Ramanatha Gurukkal v. Arunachalam Chettira (1938) 25 A.I.R. Mad. 972 that the provisions of Section 43 read with Section 73 of the same Act were intended to oust the jurisdiction of the Civil Court to question the propriety of any order of dismissal. From this it follows that any technical defect in the legal qualifications of the Court of Wards to function as trustee at the time of this dismissal would not enable the dismissed person to question the validity of the dismissal in a Civil Court.
8. I am moreover inclined to think, quite apart from these statutory provisions, that a de facto trustee of a Hindu temple in actual management of that temple and acting bona fide in the interests of the institution can validly pass an order dismissing a temple servant or officer, provided that the dismissal is for good grounds and that the procedure is one to which no objection can be taken. To hold otherwise would be to hold that when for any reason a religious trust is without a legal trustee the temple servants would be entirely uncontrolled and would be at liberty to ignore their obligations towards the trust. There is 'moreover no doubt as to the capacity of a de facto trustee in possession and management of a temple to bring a suit for the recovery of temple lands. This power has been recognized in Appasami Pillai v. Ramu Tevar (1932) 19 A.I.R. Mad. 267 and Kasi Chetti v. Srimathu Devasikamoney Nataraja Dikshitar (1913) M.W.N. 181, as well as in numerous other decisions. Moreover, it seems to me to follow from first principles that such a power must exist. It is the duty of the Court to protect trust property from misappropriation and diversion from the objects to which it was dedicated. When trust property is without a legal guardian owing to any defects in the machinery for the appointment of a trustee or owing to the unwillingness of the legal trustee to act, it would be a monstrous thing if any honest person recognized as being in charge of the institution and actively controlling its affairs in the interests of the trust should not be entitled, in the absence of anyone with a better title, to take those actions which are necessary to safeguard the objects of the trust. In this view I dismiss the appeal with costs. Leave refused.