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Krishnaswami Naidu and ors. Vs. S. Varnikalingam Pillai and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1926Mad1199; 97Ind.Cas.433
AppellantKrishnaswami Naidu and ors.
RespondentS. Varnikalingam Pillai and ors.
Cases ReferredSwaminatha Aiyar v. Srinivasa Aiyar
- .....of a simple money bond, ex. a, for rs. 5,800 on the 15th november 1911, by a former trustee, mutha pillai, who is now dead. ex, a consolidates certain prior promissory notes, ex. b series. the subordinate judge dismissed the suit holding that mutha pillai had no power to borrow money on behalf of the devasthanam and that these debts had not been proved to be either necessary or beneficial to the devasthanam. the district judge reversed the decree of the sub-court and granted a decree for the sum claimed with interest recoverable from temple properties in the hands of the defendants.2. the first question is whether the bond, ex. a, created any liability against the temple. this must be determined from the wording of the document itself and without reference to oral evidence. the.....

Spencer, J.

1. This appeal has been argued at considerable length, but the points of law which have been raised are really quite straightforward and covered by authority. The suit was brought by two creditors to recover money from Sri Subramaniaswami temple at Perambur represented by the trustees who are Defendants Nos. 2 and 3. The cause of action is the execution of a simple money bond, Ex. A, for Rs. 5,800 on the 15th November 1911, by a former trustee, Mutha Pillai, who is now dead. Ex, A consolidates certain prior promissory notes, Ex. B series. The Subordinate Judge dismissed the suit holding that Mutha Pillai had no power to borrow money on behalf of the devasthanam and that these debts had not been proved to be either necessary or beneficial to the devasthanam. The District Judge reversed the decree of the Sub-Court and granted a decree for the sum claimed with interest recoverable from temple properties in the hands of the defendants.

2. The first question is whether the bond, Ex. A, created any liability against the temple. This must be determined from the wording of the document itself and without reference to oral evidence. The suit bond is signed by Mutha Pillai who styles himself as the panchayatdar of Sri Subramaniaswami temple. He contracted as follows:

As the said temple has received the sum of Rs. 5,800 as per particulars given above, I shall pay the same to you with interest at-10 annas per cent, per mensem from this date, each year's interest being payable on the 15th November of the same year. I shall pay the principal on or before 15th November 1925, get an endorsement of payment upon this and take this back.

3. This is followed by certain undertaking as to what is to, happen if the principal and interest are not paid on the due date. It is signed ' Mutha Pillai, panchayat ' and witnessed by three witnesses. On the face of it, this document creates a personal liability against Mutha Pillai. There are no express words creating a charge on the income of the temple or its properties. The District Judge states in his judgment that a consideration of the evidence leaves the impression that what the parties intended was that payment should be made out of the temple funds, that temple funds alone should go in liquidation of the debt, and that a charge was intended to be created. As I have said, the intention of the parties must be gathered from the document and here not only are there no words making the trust liable, but the presumptions are all against that being the intention of the parties. I observed in Palaniappa Chettiar v. Shanmugham Chettiar [1918] 41 Mad. 815 that there is a presumption that when a trustee signs a promissory note, he intends to incur an individual responsibility, because he does not represent any other person in law. What was said there about a promissory note holds good also for a bond in the term of Ex. A, in which the executant personally undertakes to pay what is due. In Swaminatha Aiyar v. Srinivasa Aiyar : (1917)32MLJ259 Abdul Rahim, J., and I held that when a trustee borrows money for purposes of a trust upon a promissory note, the creditor cannot be given decree charging the amount against the trust property. We observed that it would be clear injustice to pass a decree making the property liable for the debt when the creditor lent money on the personal security of the trustee.

4. The plaintiffs in the present case have not made the legal representatives of Mutha Pillai parties to this suit or asked for a decree against them. So, there is no question now of giving a. decree in any other form than a decree for payment out of temple funds against the present trustees, who were the parties to the suit document. Three cases Parsotam Gir v. Dat Gir [1903] 25 All. 296. Lakshmindrathirtha Swamiar v. Raghavendra Rao [1920] 43 Mad.795 and Srimath Daivasikamani Pandarasannidhi v. Noor Mohammed Routhar [1908] 31 Mad. 47 have been quoted for the respondents as instances where decrees have been granted against the income of mutt on account of debts contracted by the heads of mutts. The manager of a mutt is something more than a trustee, and I, therefore, consider that those cases are not strictly in point in dealing with trust property.

5. In Sundaram Chhettiar v. Viswanatha Pandarasannadhi A.I.R. 1922 Mad. 402 the trustee of a temple borrowed money for temple purposes and the creditor was given a decree against temple funds besides a personal decree against the trustee. The trustee in that case happened to be also the head of a mutt. Apparently, he was the sole trustee. The suit, however, was based upon a contract, the trustees having contracted to discharge the debt out of temple funds. There is no such undertaking in Ex. A and, therefore, the present trustees cannot be compelled to perform the contract entered into by their predecessor. In C.R.P. No. 541 of 1921, it was held that a decree in a small cause suit, which directed certain trustees to pay a debt out of temple properties did not require to be evised, seeing that there was a finding that the agent of the trustees had pledged the credit of the institution and that he was competent to do so.

6. In the present case, the plaintiffs would have to meet a further difficulty before they could obtain a decree for payment of the debt out of temple properties and that is that Mutha Pillai, who executed Ex. A, acted alone and not in conjunction with the other two trustees. One of those other trustses was one Ramaswami Iyer who resigned office in 1913 or 1914 after the execution of Ex. A, and 'the third, Doraiswami Chetti, is the present Defendant No. 1. These two trustees may, as a matter of fact, have been active or inactive trustees ; but in a transaction in which it was intended to pledge the credit of the temple or to borrow money upon the security of temple property, it was certainly necessary for all the trustees to join together. This is the law under Section 48 of the Trusts Act. Section 47 prohibits the delegation of the duties of a trustee unless the instrument of trust so provides or the delegation is, in the regular course, of business, necessary.

7. In Ramanathan Chetty v. Murugappa Chetty [1904] 27 Mad. 192, Kumban v. Moorthi [1910] 34 Mad. 406 and Shanmugha Mooppanar v. Subbayya Moopanar A.I.R. 1922 Mad. 317 the law was clearly stated by three Benches that co-trustees form, as it were, one trustee and must exercise the powers of their office in their joint capacity and cannot act separately. It has been suggested that Mutha Pillai was the managing trustee, and that as manager he could have borrowed money for necessary proposes such as repairing the temple buildings without getting the other trustees to join with him. On this point, I am thoroughly in accord with the observations of the Subordinate Judge who said that there would be nothing improper in one of the trustees being permitted to supervise the routine work in the temple, but that there would be no general authorisation by the other trustees permitting the so-called managing trustee to incur debts on behalf of the temple and create a charge on the temple properties. For so doing, the express consent and authorization of the other trustees beforehand is certainly essential, and in this case it is absolutely wanting.

8. Another suggestion is that the plaintiffs are entitled to a decree against the temple properties by subrogation to the rights of the trustee, but although in the plaint, in para. 14, the claim by way of subrogation has been raised, the claim could not be disposed of in the absence of the legal representatives of Mutha Pillai to whose rights the plaintiffs claim to be entitled to be subrogated. The whole question of subrogation where a creditor claims to stand in the shoes of a trustee is a difficult one as was pointed out in Swaminatha Aiyar v. Srinivasa Aiyar : (1917)32MLJ259 . It would be impossible to give a decree against the trust property without evidence that the trustee who borrowed the money was himself entitled to receive any money from the trust at the time when the money was advanced. It would be necessary to have a settlement of accounts as between the deceased Mutha Pillai and the trust funds.

9. The decree which the plaintiffs ask for in the present case and the District Judge has given them, namely, that the amount of the debt should be recoverable from the temple property in the hands of the defendants, is such a decree as properly could not be given except on the footing of the money having been borrowed on the security of the temple properties. Upon the frame of the present suit, I am clearly of opinion that the plaintiffs are entitled to no such relief against the present trustees or the trust which they represent.

10. Lastly, it was suggested that the plaintiffs might be given a decree against the trust properties on the footing that they were entitled to be paid for necessaries supplied. If that had been the plaintiff's case in the plaint, they would have had to meet objections that would arise out of the dates when each of the several items of debt became payable. The appeal is allowed with costs here an in the lower appellate Court and the decree of the Subordinate Judge dismissing the suit with costs is restored.

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