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(Kalluri) Lakshminarayana Vs. Kalluri Punnayya and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai
Decided On
Reported inAIR1927Mad820
Appellant(Kalluri) Lakshminarayana
RespondentKalluri Punnayya and anr.
Cases ReferredAppanna Poricha v. Narasinga Poricha A. I. R.
Excerpt:
- .....kalyana utsavam.8. d. w. 5 (defendant 1) states thatthere was no arrangement as to management of lands and utsavam at any time after date of gift or on the date of gift.9. the evidence thus given is quite consistent with the pleadings. the question of the appointment of defendant 1 as trustee therefore does not specifically arise. strictly speaking, as regards the trusteeship put forward by the defendant the only question to be considered will be whether he has acquired such trusteeship by adverse possession. however, since para. 3 of the written statement was a little vague and since the suggestion has been made that the circumstances show that defendant 1 was impliedly appointed as a trustee though not specifically and as we have not got to consider the nature of the management by.....
Judgment:
JUDGEMENT

1. In the village of Mopparum, Tenali taluq, there is a Hindu temple dedicated to Sri Venugopalaswami. In the year 1872 the adoptive father of the plaintiff and 18 persons including the defendants endowed this temple with 4 acres 62 cents of land for the annual celebration of Kalyana Utsavam. The plaint alleges that the donors continued to manage this property and celebrate the Utsavam through the defendants till 1914, when the plaintiff was appointed to carry on the work. There were two factions in the village, one supporting the plaintiff and the other, defendant 1. For some time the relations between the plaintiff and defendants were amicable, but each trying to exclude the other in performing the Utsavam, proceedings in civil and criminal Courts had to be taken with the result that the suit land was laid waste and the Utsavam was not performed regularly. In O. S. No. 489 of 1919 the defendants adjusted their differences between themselves by a compromise to the exclusion of the plaintiff and the other founders of the endowment. As defendant 1 claimed to control the management of the properties and the Utsavams under the razinamah, those who appointed the plaintiff in 1914 found it necessary to re-affirm his appointment and after ineffective petitions before the Stationary Sub-Magistrate of Tenali by both parties for permission to celebrate the festivals, the plaintiff was appointed a trustee at a meeting of the surviving founders and heirs of the deceased on the 10th January 1922. The suit out of which this appeal arises was instituted by the plaintiff to declare his right to manage the suit land and celebrate the Kalyana Utsavam in the temple, for possession of the suit land and for an account of the income accruing from it from 1918 onwards till delivery of possession.

2. Defendant 1 is the contesting defendant. Defendant 2 may be left out of consideration. Defendant 1 questioned the validity of the appointment of the plaintiff and stated that ever since the endowment in question, he has been in possession of endowed land and has exercised rights of management adversely for over 12 years, that he has, therefore, acquired the right to manage the land and conduct the Utsavams, that the proceedings in criminal Courts were the outcome of the conduct of interested persons in trying to remove him from trusteeship, that he has not been properly removed, that no valid appointment could be made without removing him and that the suit has been badly laid as no permission to institute it has been obtained under Section 92, Civil P. C.

3. The lower Court found that defendant 1 was not merely an agent or honorary servant, that from the very allegations made by the plaintiff it could be inferred that he was appointed as trustee from the very commencement, and, that as he had not been validly removed from his appointment, the donors and their heirs had no right to appoint the plaintiff as trustee or manager. It also found that defendant 1 had also by prescription acquired the office of trustee in respect of the endowed lands. It further found that the appointment of the plaintiff at the meeting as trustee and manager in respect of the plaint lands for the purpose of the performance of the Kalyana Utsavam was true and valid and binding on the defendants, provided of course there was none other validly holding the office as such trustee. The lower Court was also of opinion that the suit is not bad for want of sanction under Section 92, Civil P. C. The findings unfavourable to him have been attacked strenuously before us by Mr. Krishnaswami Aiyar on behalf of the plaintiff (appellant).

4. At the very outset it must be remembered that the Subordinate Judge has misunderstood some of the contentions of the parties raised in the pleadings and this has somewhat obscured his findings on some of the points. It is not the case of the plaintiff that the defendant was appointed as an agent by the original donors; nor was it the case of the defendant that he was appointed a trustee by them, Para. 4 of the plaint and para. 3 of the written statement make the positions taken up by the plaintiff and the defendant respectively absolutely clear. Para. 4 of the plaint runs thus:

The founders of the first endowment not having by a deed of dedication appointed any trustees for the same, subsequently arranged to manage it themselves through the defendants, defendant 1 for leasing out the endowed land and collecting the rent thereon and defendant 2 for celebrating the Kalyana Utsavam on their behalf and so they managed it for a number of years.

5. Paragraph 3 of the written statement runs thus:

Being one of the largest donors and evincing keen interest, defendant 1 was alone in possession of the land and exercised rights of management with reference to the suit land and carried out the purpose of the endowment. He thus exercised rights of trusteeship with reference to the endowment in question since the gift. He exercised such rights adversely for over 12 years and acquired rights as such in the management. It is absolutely false that this defendant acted on behalf of the donors, or that they have any right to nominate him as claimed in the plaint.

6. The plaintiff's case is that as by the deed of dedication no person was appointed as a trustee, the donors carried on the management through defendant 1 without appointing him either as a trustee or as an agent, and defendant' s case is that ever since the endowment was gifted to the temple, he has been in possession of the properties and adversely exercising rights for over 17 years. That no appointment as trustee was claimed by him also appears to be clear from the evidence given on the side of the defendants. D. W. 1 states in examination-in-chief thus:

We did not make any arrangement as to management of gifted lands and conduct of the Utsavam. After the gift it was Punnayya who leased the lands and conducted the Utsavam.

7. In cross-examination he states:

We 19 donors did not appoint K. Punnayya (defendant 1) to manage the lands gifted and conduct the Kalyana Utsavam.

8. D. W. 5 (defendant 1) states that

There was no arrangement as to management of lands and Utsavam at any time after date of gift or on the date of gift.

9. The evidence thus given is quite consistent with the pleadings. The question of the appointment of defendant 1 as trustee therefore does not specifically arise. Strictly speaking, as regards the trusteeship put forward by the defendant the only question to be considered will be whether he has acquired such trusteeship by adverse possession. However, since para. 3 of the written statement was a little vague and since the suggestion has been made that the circumstances show that defendant 1 was impliedly appointed as a trustee though not specifically and as we have not got to consider the nature of the management by defendant 1 for a number of years, in connexion with the plea of adverse possession, we will examine the evidence from this standpoint also, especially as the Subordinate Judge has given a finding on the point in his favour.

10. The questions therefore arising for consideration are (1) whether the circumstances show that defendant 1 was appointed trustee by the founder of the trust; (2) whether defendant 1 has acquired rights of trusteeship by prescription; if so, whether this suit is in any event maintainable without validly removing him from office; (3) whether the donors or their heirs have any right of appointing or electing a trustee; (4) whether the plaintiff's election as a trustee is valid and binding on the defendants; (5) whether the suit is bad for want of sanction under Section 92, Civil P. C.

11. The first two points may be considered together as both of them depend upon the evidence that has been given as regards the management of the suit property and the conduct of the Utsavam ever since the endowment was founded in 1892. As rightly observed by the Subordinate Judge, as there are two factions in the village each trying to support its own candidate, the oral evidence given on either side should not be believed and acted upon except where it is borne out and corroborated by the documentary evidence. We have therefore to confine our attention more to the documentary evidence, and the learned vakils have also followed the same course in their arguments. (The judgment then narrated and discussed the exhibits and concluded as follows.) The evidence shows that the defendant 1 was never appointed as an agent or as trustee by the donors of the endowed lands, that he was simply allowed to lease out the temple lands and manage the Utsavam as the donors found it convenient to leave those things in his hands, that though he was in such management for a considerable number of years, he always continued to be in possession with the consent of the donors, that he never for a moment asserted that he was a trustee till about 1917 or thereabouts and that he did not oust the donors from management at any time. The whole evidence shows, as the plaintiff states in the plaint, that the founders of the endowment not having by the deed of dedication appointed any trustee for the same, managed the endowed lands themselves, through defendant 1, as that method of management was found to be very convenient. We are not able to infer from the circumstances that the defendant 1 was either expressly or impliedly appointed as a trustee, or that he obtained the rights of the trusteeship by adverse possession. It therefore follows that the suit is maintainable with validly removing defendant 1 from office.

12. The next question for consideration is whether the donors or their heirs have any right of appointing or electing a trustee. On behalf of the appellant it is contended that the donors or their heirs under Ex. A 1, have a right of appointing or electing a trustee as they were 'founders' of the Kalyana Utsavam and as they have not in any way divested themselves of the power of making any such appointment. On the other hand, it is contended that the donors in this case are in the position of persons who, subsequent to the foundation furnished additional contributions to the trust, that their benefaction is to be regarded as nothing but an accretion to the existing foundation and that they are therefore not its founders and so have no power of appointing the trustee. The question for decision is whether the endowment under Ex. A 1 constitutes a foundation of a trust, or it is simply an 'accretion' to an existing trust. The temple is an ancient one. It is practically admitted that at the time of the endowment it had no trustee and no lands for its upkeep. Though there is a stray statement in the evidence that the temple has inams we know nothing definitely about these or as to who managed them. The evidence is somewhat discrepant as to whether there was any Kalyana Utsavam celebration or not prior to 1892. There may have been now and again occasional celebrations of the Utsavam during some years, but it is clear from the evidence of D. W. 5, that such celebration ceased altogether with the death of defendant's 1 father and that in 1892 the donors wanted to revive the Utsavam. There is no evidence to show that prior to that year there was any permanent institution of Kalyana Utsavam to the. deity, with a permanent fund for meeting its expenses. A fund for meeting its expenses was brought into existence for the first time in 1892 under Ex. A- 1 and the Kalyana Utsavam began to be celebrated thereafter regularly. In these circumstances, we agree with the opinion of the Subordinate Judge that the donors under Ex. A-1 are the real founders of this Utsavam and that the endowment is not an accretion to an existing trust as contended for by the respondents. Except an endowed temple and a deity nothing existed as a trust to which the endowment in question could be an accretion.

13. The law is well settled that when the worship of an idol has been founded the shebaitship is vested in the founder and his heirs, unless he has disposed of it otherwise or there has been some usage or course of dealing which points to a different mode of devolution (see Gossami Sri Gridhari v. Raman Lalji Gossami [1890] 17 Cal. 3 Gauranga Sahu v. Sudevi Meta [1917] 40 Mad. 612 and Kali Krishna Ray v. Makhanlal Mukerjee A. I. R. 1923 Cal. 160 Ex. A-1. the endowment deed, makes no provision either for the management of the endowed lands or for the performance of the festival. It should therefore be held that the right to manage the lands and to perform the festival remained vested in the donors and their heirs, and as they had not divested themselves of the power of appointing trustees and had not made any such appointment, it is clear that they had every right to appoint the plaintiff as truestee to manage the lands and-conduct the Utsavam Gauranga Sahu v. Sudavi Meta [1917] 40 Mad. 612 On this point we agree with the opinion of the learned Subordinate Judge.

14. The next point is whether the appointment of the plaintiff as trustee is true, valid and binding on the defendants. The learned Subordinate Judge deals with the question in para. 17 of his judgment. He finds that the meeting at which the plaintiff was appointed trustee was a properly constituted one and that the plaintiff was appointed by a majority of the donors. The evidence supports his finding. It is clear that in case of disagreement between the donors the appointment could be made by a majority vote: see Nathiri Menon v. Gopalan Nair [1916] 39 Mad. 597 and Wilkinson v. Matin [1832] 149 E. R. 268 and this is what seems to have happened in this case. As we have already found that there was no one validly holding the office as trustee at the time when the plaintiff was appointed, his appointment is valid and binding on the defendants.

15. The last question for consideration is whether the suit is bad for want of sanction under Section 92, Civil P. C. It is argued that the reliefs claimed in the plaint are those set out in Section 92 of the Code and that as no sanction of the Collector or the Advocate-General in writing has been obtained for the institution of the suit it ought to fail. In support of this view reference has been made to Narayan v. Vasudeo A. I. R. 1924 Bom. 518 and Nilkanth Devarao v. Ramkrishna Vithal A. I. R. 1923 Bom. 67 but it has been decided by a Full Bench of this Court see Appanna Poricha v. Narasinga Poricha A. I. R. 1922 Mad. 17 that when a suit is filed not for the purpose of vindicating any rights of the public in a public religious or charitable trust but has been filed only for the purpose of satisfying the personal or individual rights of the plaintiff as trustee, the suit is maintainable without the sanction referred to in Section 92 Civil P. C., though the relief claimed may be those in that section, The present case comes clearly within the scope of the decision in Appanna Poricha v. Narasinga Poricha A. I. R. 1922 Mad. 17 and is therefore not bad for want of sanction under Section 92, of the Code.

16. As a result of our finding the appellant is entitled to succeed in this appeal. The subordinate Judge states with reference to issue 6 (see para. 20, of his judgment) that

in case the plaintiff succeeds in the suit, he may be entitled to recover Rs. 200 per year from defendant 1 in respect of the years referred to in the plaint.

17. This finding has not been questioned before us. We therefore allow the appeal and give a decree to the appellant as prayed for with this modification that he will be entitled to recover only Rs. 200 per year from the defendant in respect of the years referred to in the plaint. The appellant will have his own costs from the defendant both here and in the Courts below.


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