1. The suit relates to Sri Parthasarathy Swami Temple situate in Triplicane, Madras. It is an ancient Vaishnavifee temple of Thengalai persuasion and held sacred and resorted to by large numbers of worshippers from all parts of South India. Sri Parthasarathy, the presiding deity in the temple, is Sri Krishna, as Parthasarathy the Charioteer of Arjuna, the Gitachariya, the Propounder of the Bhagavat Gita.
2. It is a matter for great regret that this temple should have, during several years past, been involved almost continuously in the litigation, and thus its affairs should have got into chronic mismanagement.
3. The two plaintiffs instituted the suit with the sanction of the Advocate-General under the provisions of Section 92, G.P.C. The three defendants have been for some years past the Trustees, Dharmakarthas of the temple; the 1st and 2nd defendants from about 1913 and the 3rd defendant from June 1919. The plaintiffs seek in this action to have the defendants removed from their office of the Dharmakarthaship on the ground and for the reasons set out in the plaint, for an account of their management and for the modification of the scheme framed by this Court in respect of the suit temple in C.S. No. 111 of 1918. That suit was similar to the present one and substantially for the same reliefs. The 3rd defendant, however, was originally one of the plaintiffs in that action, but being elected a trustee during the pendency of the suit was transposed as defendant. Though there were various charges of misfeasance and negligence made in that suit against defendants 1 and 2, on the ground of which their removal from office was prayed for, yet, when the suit came on for final hearing the charges and the prayer for removal of defendants 1 and 2 from office were not pressed in view of the defendants-trustees agreeing to a modification of the scheme of management and to the term of office of every trustee being limited instead of being for life as theretofore. On this arrangement the learned Judge who heard the case, Mr. Justice Coutts-Trotter, modified the scheme of management introducing many necessary and salutary changes. Appeals were filed however, from the decree of which the scheme was so modified, not only by certain worshippers at the temple who appeared at the framing of the scheme, but also by V. Parthasarathy Aiyangar, the 1st defendant, who, amongst other things, objected, after having agreed thereto at the original suit, to the limitation of the term of his office, Sir Charles Spencer and Ramesam, JJ., who heard those appeals deleted some of the modifications in the scheme effected by the learned Judge at the original trial. The present suit was instituted in or about 1924 after the decree of the original Court in the said C.S. No. Ill of 1918 and before the judgment on appeals therefrom. It originally came on for final disposal before one of us; but as it was felt that there might be some incongruity in a single Judge sitting on the original side subjecting to further revision a scheme of management relating to the temple which was revised by a Bench of two learned Judges of this Court only recently, the matter was placed before the Chief Justice and under his orders a Bench constituted of us three Judges was arranged to try the case.
4. Two questions of a preliminary character were argued on behalf of the defendants. The first was that embodied in the fifth issue. The contention was raised, though not seriously argued, that the suit itself was not maintainable as it was not constituted into a representative suit by leave of Court being obtained under the provisions of Order 1, Rule 8, C.P.C. and notice being given thereunder to all parties concerned. Not merely were we not referred to any authority in respect of the contention, but there was not even any argument advanced based on the reason of the thing. It was conceded, as it had to be, that any decree passed in a suit under Section 92, C.P.C., was binding not only on the trust and the trustees but also on all the worshippers at the temple. Any argument therefore based on a possible multiplicity of actions was not available in support of such a contention. It could not be seriously contended that the provisions of Order 1, Rule 8 were not merely of an enabling character. The condition precedent to the proper institution of a suit under Section 92, C.P.C., is the obtaining of the sanction of the Advocate-General and no other condition for the maintainability of a suit is to be found in the Code. Previous to the amendment of Section 92 (formerly 539 in the previous Code) by the Civil Procedure Code of 1908, no doubt the procedure under Order 1, Rule 8, (formerly Section 30) was, in suits instituted otherwise than with the sanction of the Advocate-General or the Collector, deemed necessary in order to render the decree in the suit binding on all parties interested in or concerned in any manner with the trust. But the amendment of the law embodied in the present Section 92, C.P.C., has obviated the necessity for a representative suit. This objection therefore to the form and maintainability of the suit cannot be supported.
5. The other objection taken by the defendants was that set forth in the sixth issue. It was said that the decree in G. Section No. Ill of 1918 and latterly in the appeals therefrom operated as res judicata so far as the removal of the trustees from the office and the modification of the scheme were concerned. As regards the modification of the scheme, no doubt, in respect of the prayer for the same, as in respect of any other prayer in a plaint, there must be a cause of action. Generally speaking, the cause of action in respect of a claim for the modification of a scheme is or should be the defective or unsatisfactory nature of the scheme in force, as discovered or disclosed in the light of the events and experience during the period that has elapsed since the last modification. We do not understand the plaintiffs in this case to have alleged any other cause of action, and it is clear that if no such cause of action is made out, the scheme could not be modified. As regards the removal of the trustees, it is true that various acts of misconduct and negligence were alleged against defendants 1 and 2 in this case as defendants 1 and 2 in C.S. No. 111 of 1918. But those charges were not pressed in the circumstances already adverted to. There was therefore no adjudication with regard to those charges. It would be incorrect to say that the charges were not pressed as the result of any compromise by the plaintiffs in that action with the trustees, and we must therefore take it that the charges were not so pressed either because the plaintiffs were satisfied that they could not satisfactorily establish the same by legal evidence or that they considered it unnecessary to press the charges in the interests of the institution having regard to the other reliefs to be granted by the Court. We must further take it that the Court approved, in the circumstances, of the course adopted by the plaintiffs, in not pressing the charges. In either view, if there had been therefore in the present plaint no charges made by the plaintiffs at any rate against defendants 1 and 2 of misconduct or negligence subsequent in point of time to the date of the institution of the previous suit it may be that the plaintiffs would not be entitled to require that the defendants 1 and 2 or either of them should be removed from office. But a considerable number of the charges now made relate to the period subsequent to the previous suit. In this view there could be no question of res judicata. With regard to the other suits referred to in the issue, it has not been argued how any question of res judicata arises.
6. Though we had thus to find against the defendants the contentions raised in the fifth and sixth issues in this case and decide that any evidence relating to matters previous to the date of the institution of C.S. No. 111 of 1898 could not properly be the basis of a cause of action, yet we intimated that evidence of matters relating to the management during the earlier period might also be taken into consideration in the light of the subsequent events in coming to a conclusion with regard to the modifications to be made in the scheme of management and also with regard to the removal of the defendants from the office of trusteeship.
7. The two matters therefore that remain to be determined are, firstly, whether the defendants or any of them have been guilty of all or any of the charges of breach of trust, mismanagement and neglect of duty as alleged in the plaint, and if so, whether the defendants or any of them are liable to be removed from the trusteeship, and secondly, what modification, if any, should be made in the scheme framed in C.S. No. Ill of 1918, as, no doubt now modified, by the appellate Court.
8. To begin with, it must be observed that though in form the prayer in the suit is for the removal from office of all the defendants, still, as may be gathered from a perusal of the plaint as was clear from the manner in which the case was conducted and the evidence was led on behalf of the plaintiffs, and as was only too obvious from the way in which during the trial of this case the plaintiffs and the 3rd defendant acted together instructing each other, the real object of the suit is to get rid of defendants 1 and 2 from the management of the temple. The suggestion on behalf of defendants 1 and 2 is that this suit has been instituted at the instance of the 3rd defendant, that he is financing the litigation and that it is therefore really an attempt by the third defendant indirectly to get rid of his co-trustees, defendants 1 and 2. There can be little doubt that the 3rd defendant is in entire sympathy with the plaintiffs so far as the removal of defendants 1 and 2 is concerned. At the time when this suit was instituted in or about August last, the appeals filed from C.S. No. Ill of 1918 were still pending, and there is no reason to suppose that the general worshippers at the temple would not have waited, at least till the disposal of the appeals, before filing a suit for a revision of the scheme or even for the removal of defendants 1 and 2 from office. On the other hand, so far as the 3rd defendant is concerned, his main object would be the removal of defendants I and 2 from office and for that purpose he would not have to wait till the disposal of the appeals, which could not possibly in any contingency result in the removal of defendants 1 and 2 from office. Disputes in this temple regarding the Adhyapakam were about the time at their zenith and it is clear from the evidence in this case that whereas the 3rd defendant took the side of the plaintiffs in the Adhyapakam suit, defendants 1 and 2 were ranged on the opposite side. It was about the end of March 1924 that in the suit instituted by the 3rd defendant against defendants 1 and 2, C.S. No. 559 of 1922, this Court passed an order which had substantially the effect of curtailing the rights claimed by the 3rd defendant as against defendants 1 and 2 and which seemed a sort of a set-back to him. It is also in evidence in this case that it was soon thereafter about the month of April that the plaintiffs in this suit were busy trying to obtain the sanction of the Advocate-General for the institution of this proposed suit. From all these circumstances it no doubt appears that the real object of the suit was not to remove all the defendants from office but a suit expressly and avowedly for the removal from office only of defendants 1 and 2, by the plaintiffs apparently on behalf of the general worshippers of the temple. As it would be too patent an act of taking sides, the plaintiffs had necessarily to include a prayer formally for the removal of all the defendants inclusive of the 3rd defendant, We have therefore had to deal with the case as laid, against all the defendants coming to a conclusion on a consideration of all the circumstances and the present state of affairs.
9. A great deal of the evidence adduced in the case was directed to establish the various charges made against the defendants. The main charges can conveniently be classified under six heads.
10. The first charge related to the failure to collect regularly the rents and other monies accruing due to the temple and allowing the same to fall into arrears.
11. The second charge had reference to the loss of possible and proper income to the temple by reason of the defendants not letting out the properties of the temple to tenants or for the highest rents obtainable and also by reason of not repairing the properties belonging to the temple and making the same available for occupation by tenants paying rents.
12. The third charge was that large sums of money belonging to the temple were expended or wasted in litigations, civil and criminal, which ought to have been avoided.
13. The fourth charge made was the discontinuance of the services and festivals performed in the temple by worshippers as the result of the mismanagement by the defendants and of defendants 1 and 2 allowing temple monies to be utilised for certain services and items, in respect of which the first defendant was solely bound to meet the cost, from and out of monies of a different trust.
14. The fifth charge made was that defendants 1 and 2 deliberately failed and neglected to observe and carry out the provisions of the scheme framed in C.S. No. 111 of 1918.
15. The sixth and last charge was such incompatibility and want of co-operation among the defendants as to render their continuance in office absolutely inconsistent with the interests of the temple.
16. We shall now proceed to deal with these charges in the order enumerated. But before doing so, we may observe, that in the view we have taken of the entire matter and the conclusion we have arrived at, it has seemed to us unnecessary to deal in any great detail with the first five of those charges.
17. The first charge relates to the failure to collect the rents and other monies accruing due to the temple and allowing the same to fall into arrears. Much of the evidence in the case has been directed to make out this charge. Bat on the whole we are not satisfied that in respect of this, a case for the removal of the defendant or any of them from office has been made out. The total amount said to be in arrears may be taken to represent roughly about six months' dues (See Ex. XVII). In an institution with a large number of small tenants we are not prepared to say that the accumulation of such arrears should be entirely due to any default or negligence on the part of the trustees. The history of the circumstances under which even these arrears got to accumulate is a significant commentary on the one main feature with regard to the present management, namely, the incompatibility among the trustees inter se. We have little doubt that if the trustees had co-operated with each other not only would there have been much less arrears but such arrears as there were, would have been collected without much trouble. It is clear from the evidence that this is what happened. Soon after the 3rd defendant assumed office in 1919, he, with all the zeal and enthusiasm of a fresh officeholder, set about increasing all round the rents that were being paid by the tenants (see Ex. IX). The increase was not brought about by any agreement consented to by the tenants but on mere notices given to them of the proposed increase. In the case of tenants who had built superstructure on land belonging to the temple this introduced a further complication of the question of the right of the trustees to increase the rents in such manner. The necessary result of such a step was that rents fell into arrears for the simplest of all reasons that the temple authorities did not wish to accept rentsat the old rates and the tenants were not willing to pay rents at the enhanced rate. It is in evidence that the 1st and 2nd defendants at whose doors the whole of the blame with regard to the accumulation of arrears has been sought to be laid, at first allowed the 3rd defendant to collect all the rents and look after all matters relating thereto. When the 3rd defendant found that he was not able to collect rents and that they fell into arrears, he would appear, with a view to facilitate collection, to have at one stage asked defendants 1 and 2 to give him a power of attorney, in order apparently to avoid the delay of having to obtain their signatures to all the proceedings that might be required to be taken for the purpose of enforcing the enhancement of rents and collection thereof. It is undisputed that defendants 1 and 2 agreed to give the power of attorney but limited only to the purpose of the collection of the rents. But for some reason not satisfactorily explained in the case, but not perhaps very difficult to guess, the 3rd defendant sent to defendants 1 and 2 for execution by them a draft power of attorney (Exhibit XX) which went far beyond the limited power agreed to be given by defendants 1 and 2 and which defendants 1 and 2 not unreasonably thought would have the effect of vesting the 3rd defendant with larger powers than were contemplated. The refusal by defendants 1 and 2 to execute and grant such power of attorney would seem to be the beginning of the misunderstandings between them on one side and the 3rd defendant on the other. The 3rd defendant has been unable to explain why or how it was, that when he found that the 1st and 2nd defendants did not execute and return the power of attorney, draft of which was forwarded by him, he did not inquire into the reason for their not having done so or take any other step to procure such a power of attorney as they were willing to grant. We cannot help suspecting that the real object of the 3rd defendant in trying to get such a power of attorney as he sent a draft of, was to secure in his own hands solely, all the powers of management in respect of the suit temple and its affairs. This naturally roused the suspicion and antagonism of defendants 1 and 2. It was then that the 3rd defendant filed against defendants 1 and 2, C.S. No. 559 of 1922. In that suit the 3rd defendant made many charges against defendants 1 and 2, which were not upheld by the Court and as regards the collection of rents the Court decreed that the 3rd defendant should himself collect all the arrears. Instead of proceeding thereon to realise all the arrears, the 3rd defendant purported to appoint his own gumastha and gave notice to all tenants that not only all the arrears of rents due up to the date of the decree but all future rents also should be paid by the tenants not into the hands of defendants 1 and 2 or the bill collector appointed in the temple for that purpose, but to himself or the special gumastha appointed by him. This again indubitably points to the general attitude assumed by the 3rd defendant with regard to the whole matter. If he had been content as it was protested on his behalf, to place the interests of the temple first, without much consideration of his own importance or powers, the arrears need not have accumulated or failed to be collected. It is absolutely clear on the records that after the order of the Court in the said C.S. No. 559 of 1922 in March 1924 (see Ex. XXI B) the 3rd defendant did practically nothing apparently because theterms of that order were not to his liking. His present statement in his evidence before us is to the effect that in spite of the decree in that suit and all his endeavours to collect the arrears of rents due to the temple he has been able to collect only about a sum of Rs. 1,000 and that practically the whole of that amount has been spent by him in costs and expenses. There can also be little doubt that defendants 1 and 2 did their best to prevent the 3rd defendant from collecting such arrears as were within the scope of the decree in O.S. 559 of 1922. When suits were filed by the 3rd defendant in pursuance of the powers given him, defendants 1 and 2 raised defences even when the tenants allowed the suits to proceed ex-parte and raised no defences and even if the decrees were passed in favour of the temple they preferred applications for new trial.
18. We also think that the trustees failed in their duty in not ejecting tenants who were long in arrears and letting the properties to satisfactory and solvent tenants. A great point was sought to be made on behalf of the plaintiffs that large amounts due from various persons employed in the service of the temple have been allowed to become barred by limitation. The account books no doubt showed that there were such large arrears. This on investigation merely turned out to be due to a mistake in account keeping. Adjustments of account were not made as they should have been periodically but at long intervals by credits being given to the particular servants concerned of monies due to them for salary or otherwise and so wiping off the debits against them. In respect of the delay in the collection of meroi amounts due to the temple the fault does not appear to be entirely with the 1st and 2nd defendants. The 3rd defendant wanted to get hold of the money and put it in the separate account opened by him in the Bank and defendants 1 and 2 who required the amount for the current expenses of the temple tried to prevent the 3rd defendant from doing so. It is in evidence that as soon as the 3rd defendant agreed to place the money to the joint account of all the trustees, defendants 1 and 2 concurred in drawing the amounts. On the whole, an investigation into the first charge has served to establish not any serious or gross-case of default or delay in the collection of rents but only the entire lack of harmony and co-operation among the trustees themselves.
19. The second charge stated above related to two matters. The first was that defendants, referring thereby only to defendants 1 and 2, let out some of the temple properties for rents smaller in amount than tenants were willing to pay or would have paid. With regard to this, it is sufficient for us merely to observe that this charge has not been satisfactorily made out. All that has been proved merely shows that there might be some room for suspicion but that is dearly not enough. With regard to the second part of the charge, it related to the failure to repair what is called 'Davanothsavam Bungalow' so as to make it tenantable and a source of income, and the failure to carry out the agreement entered into by one Ramakrishnaiya in respect of house and premises No. 97, China Bazaar Road, Madras. As regards the 'Davanothsavam Bungalow' the evidence is conflicting.
20. It was sought to be made out on behalf of defendants 1 and 2 that a sum of about Rs. 2,000 or Rs. 3,000 would be required to put it in a tenantable condition. On the other hand it was said on behalf of the plaintiffs that a sum of Rs. 400 or Rs. 500 would have been sufficient. It is not proved that there were ready monies available in the hands of the trustees for carrying out such repairs and that nevertheless they committed default in carrying out the same. But it was, however, obviously a case in which the defendants as trustees ought to have used more diligence in the collection of the arrears of rents due to temple and would have been justified even in borrowing monies for the purpose of saving the property from destruction and waste. With regard to the house in the China Bazaar Boad, it is also abundantly clear that the trustees, each of them for a different reason, failed to see that the agreement entered into by Ramakrishnaiya was carried out. It is also clear that thereby the temple lost a large sum. There was no doubt some ambiguity in the agreement (see Ex. 18) and this was taken advantage of by all the parties concerned for the purpose of enforcing their own individual opinions to the detriment of the interests of the institution. A little cooperation between the trustees would have easily surmounted all difficulties that are alleged to have existed. There can be little doubt that defendants 1 and 2 were annoyed with the lessee for not consenting to their nominee superintending the construction work and did their best to prevent the lease taking effect by untenable objections and demands. Though the negligence imputable under this charge was a fairly serious one, we are not prepared to say that the circumstances were such as would justify the defendants or any of them being dismissed from office on that ground. Under this heading we may also refer to the 'charge against the defendants for letting the anamat murai to the Chinnamurai Archakas at the same rate as that paid by the mirasi holders of office and not at any enhanced rate as might have been done. We cannot say that having regard to the serious responsibility of Archakas in the matter of the custody and care of temple jewels the action of the trustees in not letting in strangers for the archaka office was a wrong exercise of discretion.
21. The third charge made related to large sums of money belonging to the temple being expended or wasted in litigations, civil and criminal. The suit temple has been for many years past continuously involved in litigations, criminal, civil or both and this has been the most unfortunate feature of its management. In respect of nearly all the bigger civil suits coming under this charge, the Court has made orders with regard to the beating of the burden of the costs and if the Court had in such cases directed that the costs of the litigation be paid from out of the temple funds, we cannot now sit in judgment over such orders, seeking to investigate the facts again and making any pronouncement with regard to the same. As regards however, the large number of criminal cases on which the temple funds would seem to have been expended, we have no doubt whatever that most of those cases were due, not to any attempt on the part of the trustees to protect the interests of the temple, but merely to quarrels indulged in on account of personal animosity and faction. In one at least of these cases, even the 3rd defendant was a consenting party to the institution of the prosecution though he would seem to have subsequently changed his mind and supported the cause of the opposite party. (See Exhibit 36.) We cannot hold that in incurring such expenses, prompted by such questionable motives, the defendants were free from blame, but at the same time having regard to the comparatively small amount of not more than Rs. 400 or Rs. 500 spent on the whole in connection with such cases, we should hesitate to find them guilty of such deliberate breach of trust as to require their dismissal from office.
22. The fourth charge has, in our opinion, not been proved. Though there was some evidence of the discontinuance by some worshippers of certain services in the temple it has not been shown that, in respect thereof there has been any fault or default on the part of the trustees. As regards defendants 1 and 2 allowing temple monies to be expended in connection with the alighting of the deity in the Gangaikondan Mantapam, the claim is that the 1st defendant should as representing a separate trust of 'his own family expend its monies therefor, it. is in evidence that all such expenses have been made from the temple funds for a very long time, for forty or fifty years past, including the first few years of the 3rd defendant's trusteeship and without any objection by him. The question of the liability of the separate trust represented by the 1st defendant for such expenses would have to be decided only if and when it is properly raised in connection with such trust. So far as this suit is concerned, we cannot possibly find that expenses which were allowed to be incurred from and out of the temple funds for 40 or 50 years were not incurred in good faith. With reference to the complaint that the funds of the trust created by Ekangi were ret invested as required by law, there can be little doubt that defendants 1 and 2 were guilty of wrongfully mixing it up with the funds of the temple in current account and that this resulted in about Rs. 700 or Rs. 800 being attached by creditors of the temple and to litigation with Ekangi. The trustees, if they bad co-operated, could easily have found a proper investment for the funds.
23. The fifth charge is really a serious one. There is no doubt whatever on the evidence that defendants 1 and 2 were dissatisfied with many provisions in the scheme framed in C.S. No. 111 of 1918 and did their best to render them nugatory. They were obviously throwing obstacles in the way of registration of voters. They would not give facilities for the audit being carried out. They would clutch any excuse for not giving inspection of accounts to voters that applied for the same. It is true that all these have been attempted to be explained or justified. But the explanations and justifications are far from convincing. We have reason to suspect that because there were appeals pending against the original decree the defendants 1 and 2 persuaded themselves that the decree was not final and binding.
24. Though on a careful consideration of all the foregoing five major charges and of a number of other minor acts of misconduct and negligence referred to in the course of the evidence in this case, we have come to the conclusion that the acts complained of would not, if the matters stop there and there was a chance of the trustees cooperating in future, render it necessary to take the extreme measure of dismissing them from office, we have yet, having regard to the state of affairs in the temple, its unsatisfactory management during the past several years and the substance of the 6th charge above set out, come to the conclusion that the continuance in office of the present board of trustees would not only be against the interests of the temple but in a short time prove disastrous to it. Having regard to findings on the various other charges, we would have been disposed not to take a very serious view regarding the sixth charge more especially as it would on the face of it seem to indicate merely a state of things which may be possible to be remedied by altering the present scheme and introducing new conditions and rules for the conduct of the trustees. But as a matter of fact on a careful consideration of what has been proved in this case regarding the conduct of the trustees we have come to to the conclusion that all the acts and omissions proved against the defendants under the said various charges were all directly due and traceable to the fundamental defect in the present personnel of the board of trustees, namely, their utter incompatibility with each other and a fundamental defect of character in cash which has made it inevitable that they should be ready and willing to sacrifice the interests of the institution in their petty squabbles and personal piques. The strong personal dislike of defendants 1 and 2 to the 3rd defendant makes it impossible to expect any co-operation between them. At a very early stage in the case we realised that a great deal of the present mismanagement of the temple and its affairs was due to this incompatibility amongst the trustees and with a view if possible to avoid any long and acrimonious enquiry into the charges and to facilitate the harmonious administration of the temple, we enquired whether the 2nd defendant who was the most aged amongst the trustees was anxious to continue in office, but on his intimating that he was, an enquiry into the charges became inevitable. In this connection we may take leave to observe that it is highly regrettable that trusteeships of temple and similar institutions, should be looked upon as places of prestige and profit and that people should be found who are desperately anxious to be elected to such places or to continue to stick to them in spite of the onerous and serious responsibilities thereof. The true spirit in which such offices should be accepted or retained is the spirit of service and sacrifice in the interests of the public and of the institutions. So long as such offices are regarded not as posts of duty and responsibility but as opportunities of personal aggrandisement, the affairs of such institutions are bound to be unsatisfactory. In this view no doubt, schemes under which there should be candidates for trusteeship and elections to such offices are largely incompatible with the true spirit that should prevail but it is the dream of democracy that there may be candidates who are pressed by public opinion to accept office if elected and that there may also be elections which truly reflect the highest principles of election. The history of the temple from 1877 shows how baseless such hopes were. But the abolition of the election principle may cause so much discontent that it seems better to allow hope to triumph over experience. It may not also be inappropriate in this connection to refer to the manner in which persons who accept such places of public trust and responsibility should be regarded and treated by the public generally. It is the duty of the public to realise that those who accept such offices and seek to discharge them to the best of their ability are after all engaged in what is generally called a thankless task and that therefore the holders of such offices should be regarded and treated by the public with great consideration and sympathy. The habitual attitude of the members of the public to find petty faults with and throw stones at them on every possible occasion brings about a state of things in which men of capacity, character and position in society Doing afraid to accept such offices keep aloof, thereby necessarily making it inevitable that such offices should be scrambled for by less acceptable persons. It may also be here pointed out that once a person accepts an office of trusteeship, the or governing consideration in his mind, the ruling motive for all actions the one principle by reference to which all his acts should be determined, is the interest of the institution and that alone: and in our judgment persons who though holding a fiduciary position allow their actions to be prompted by any other considerations, motives or principles are as much guilty of breach of trust as persons who may be found actually guilty of misappropriating property belonging to the trust. We are not at all sure whether so far as the trust itself is concerned, the results, of such a fundamentally wrong attitude on the part of trustees, are not often times more insidious and disastrous to the trust than any misappropriation of funds. After giving the who a matter our earnest and anxious consideration, we have come to the conclusion that the continuance in office of the present board of trustees with its personnel is absolutely inconsistent with the proper management of the temple and its affairs and is likely soon to prove disastrous to its interests. There is the high authority of the Judicial Committee of the Privy Council in the case of 'Leiterstedt v. Broers' (1884) 9 A.C. 371 for the proposition that even though the evidence in a case against the trustees may not be sufficient to warrant, generally speaking, their removal from office on the ground of misconduct or negligence still their removal may be ordered, if, in the opinion of the Court, such removal is necessary in the interests of the trust to be administered. This is what Lord Blackburn says in delivering the judgment of their Lordships: 'Looking therefore at the whole circumstances of this very peculiar ease, the complete change of position, the unfortunate hostility that has arisen, and the difficult and delicate duties that may yet have to be performed, their Lordships can come to no other conclusion than that it is necessary, for the welfare of the beneficiaries, that the board should no longer be trustees. Probably if it had been put in this way below they would have consented. But, for the benefit of the trust they should cease to be trustees, whether they consent or not.' If anything has been abundantly and satisfactorily established in the course of the trial of this case, it was the utter incompatibility of the defendants amongst themselves and the fundamentally wrong attitude assumed by them with regard to the affairs of the temple. The facility and readiness has been amazing with which they have allowed their actions to be governed not by any consideration of the interests of the temple but by personal prejudices and piques. We have already dealt with the manner in which the trustees conducted themselves towards each other in the matter of the collection of the rents and other amounts accruing due to the temple and how it was abundantly clear that the whole of the present position was entirely due to the fundamental attitude on their part. The amount of wasteful litigation in which the temple has been involved is directly due to the inveterate tendency among the trustees to take sides with factions and to the scramble amongst themselves for exclusive power. The means adopted by defendants 1 and 2 to delay the payment to the 3rd defendant of monies advanced by him to the temple even after payment thereof was passed by all the trustees and the refusal of the 3rd defendant even to sign cheques for the necessary expenses of the temple are quite on a par and can be explained only by reference to the hatred and ill-will prevailing among them.
25. It is not denied that for nearly a year before the institution of this suit there have been practically no meetings at all of the trustees. The object with which, in any scheme of management, provision is made for a plurality of trustees is obviously that in respect of every matter relating to the management, different minds may be brought to bear on the question, and after discussion of the pros and cores, a conclusion may be arrived at which is most in the interests of the institution. It is only at a meeting there would be opportunities for such a discussion, the possibility of the presentation of the other side and a consideration of the same. If there should be no meetings and if any matters other than routine business should be sought to be disposed of on paper in circulation, one of the chief benefits intended to be secured by a provision for three trustees comes to be entirely lost. We are satisfied that no meetings have been held as aforesaid merely because of the feelings of personal ill-will and mutual distrust amongst the trustees which have rendered any calm consideration or discussion by them of questions relating to the administration of temple affairs anything but possible or pleasant. It is admitted that during all this time not merely routine matters but new matters that would obviously be required to be discussed and considered have been sought to be disposed of in circulation by the papers being sent round first to the first defendant, secondly to the second defendant and thirdly to the third defendant. It is also established that at least for some years past the first and second defendants have been always agreeing together and been practically of on opinion in all matters. The necessary result of this has therefore been as though there were for the institution not three trustees but only two. If defendants 1 and 2 had always agreed to agree on every question, the position of the third defendant is reduced to perfect nullity and helplessness. There are grave reasons to believe that this position has been largely contributed to by the conduct and attitude of the third defendant himself. In his attempt to secure all the power into his own hands he raised the jealousy and suspicion of defendants 1 and naturally they made common cause. This ended in the tyranny of the majority in all its well-known forms. The result has thus been that there have been practically only two trustees for, at any rate, a year or so previous to the institution of the suit. So far as the 1st defendant is concerned, though we have felt bound to come to the conclusion that none of the individual charges made against him of misconduct and negligence has been sufficiently made out to justify his dismissal from office, still we feel we cannot entirely overlook the cumulative effect of the whole. By reason of some of his ancestors having held the office of the Dharmakarthaship in the temple he appears to have somehow got into his head the idea that in spite of the provision in the scheme for election and in spite of the provision introduced in C. Section No. Ill of 1918 for the termination of the office he has got a sort of hereditary right to the Dharmakarthaship. We are not prepared to condemn wholesale and absolutely the idea of hereditary office because, though a great deal has been said against it, there may be certain features of it which make it tolerable. But when we find that an elected trustee with a fixed duration of office allows himself to be influenced in his actions by ideas of hereditary holding, his continuance in office cannot be regarded with equanimity, as being in the interests of the institution. Such a person is gure to feather his nest so to say, by manning the establishment with relations and friends and also otherwise bring influence to bear on the electorate so as not only to secure his return to the office in any election certain but also practically to make it impossible for another trustee to carry on the administration of affairs. We are also satisfied that though the 1st defendant has not committed any acts amounting to a gross and serious breach of trust, still he has been all along sailing as close to the wind as he dared. Further in view of the nature of the 2nd defendant, which we shall presently discuss, he has with great facility managed to get all power into his own hands and wield it in an irresponsible and almost reckless manner.
26. As regards the 2nd defendant, it is abundantly clear that for some considerable time he has been a sort of a cypher so far as temple affairs are concerned, but unfortunately a cypher that has made up his mind to stand always by the integral 1st defendant. In his evidence before the court he betrayed his stupendous ignorance of the affairs of the temple and his uniform answers to all questions (except with regard to matters in which he has been duly instructed) was that he did not remember or that he did not know. He admitted before us that on no occasion during the last few years has he ever been in the minority. Pie is about 58 years old and we suspect that senility has already overtaken him. His interest in temple affairs and his knowledge of them may be tested by the fact that though it was about two months after the court of appeal delivered judgment in the appeals filed from the decree in C.S. No. Ill of 1918 he did not know what had become of the appeals and what modifications in the scheme, if any, had been made. We have therefore come to the conclusion that the 2nd defendant has, at any rate, latterly been thoroughly inefficient and failed systematically to realise his individual and independent responsibility as a trustee contenting to reduce himself to be a mere tool in the hands of the 1st defendant. The result of this failure on the part of the 2nd defendant to realise his independent responsibility as a trustee has been not only to nullify the provision with regard to there being three trustees for this institution but directly to arm the 1st defendant with an actual and ready double vote, a result which no court can contemplate with equanimity.
27. As regards the 3rd defendant he came into office only in 1919 and it is in evidence that he has been off and on doing his best in the interests of the institution with a view to set right the affairs but at the same time we are unable entirely to acquit him of all blame. It is abundantly in evidence that instead of placing the interests of the institution in the first place he has allowed himself to be prompted by wrong ideas of his own importance, position and power and his endeavour seems to have been systematic to concentrate all power over the temple in himself and reduce the other two trustees to a position of comparative subordination. We are not at all sure whether the 1st defendant's successful attempt to secure permanently in his own hands the vote of the 2nd defendant was not the logical result of the open attempt by the 3rd defendant to clutch all the power himself. A little more of give and take on his part even by way of condescension, and a little more tact in his dealings with his co-trustees, would, we are satisfied have prevented the 1st and 2nd defendants being driven into permanent opposition and hostility and would also have prevented his very commendable attempts at setting right the temple affairs turning out so futile.
28. Having regard therefore to these characteristics of the three defendants the present trustees of the temple, we have come to the conclusion that their continuance together in office for any length of time would not only be inconsistent with the interest of the temple but prove disastrous to it. But at the same time even if it should be possible we do not deem it necessary to seek to embark on the difficult and delicate task of any accurate apportionment of blame and responsibility. As we have come to the conclusion though for different and various reasons in each individual case that it is not desirable in the interests of the temple that the defendants should continue to hold office till the expiry of the period fixed for them, we have decided that their terms of office should be cut short. As in our judgment the 2nd defendant has been the most inefficient, we have decided that his term of office should expire with this day. As the 1st and 3rd defendants could not possibly agree with regard to any matters of administration and as it would take time for any election to be made to the vacancy caused by the 2nd defendant going out of office, we hereby delete from the scheme now in operation all the provisions regarding the election or appointment of trustees, such deletion is however intended to be operative only till the scheme relating to the temple is finally revised in these proceedings and has been rendered necessary only for the purpose of immediately appointing in the place of the 2nd defendant a new trustee who may be expected to hold the scales even between the 1st and 3rd defendants and carry on the administration of the trust satisfactorily till the scheme is finally revised and new trustees are appointed thereunder. To the vacancy caused in the place of the 2nd defendant we appoint Bao Bahadur G. Kothandaraman-julu Naidu, Retired Sub-Judge. He will hold office until further order of this Court or until a successor appointed in his place takes over charge from him under the provisions of the scheme to be finally revised in this suit. The 1st and 3rd defendants will forthwith deliver over to him joint charge of the office and co-operate with him in the management. If there should be any objection or obstruction application may be made to the vacation Jurlge and if found necessary he may be appointed receiver.
29. As we do not consider it in the interests of the institution that all the trustees with experience should go out altogether and at once, we have decided that the 1st and 3rd defendants should vacate office on the expiry of three months from the date of the settlement of the scheme and the passing of the final decree herein.
30. As regards the amendment of the scheme, we have come to the conclusion that the scheme though amended only recently by the appellate Court does need to be revised especially having reference to the defects disclosed by evidence in this case of what has been happening in the temple and with reference to its management subsequent to the suit of 1918 from which the appeals arose. Before the Court revised the scheme in that case there was no evidence placed before it bearing on the defects in management of the temple and the possibility of misconduct and negligence on the part of the trustees. We have had such evidence and in our judgment it is necessary that the scheme should be revised and various safeguards provided. 'While resolving to continue the present system of three trustees we have decided that in the interests of the temple a board of supervision should be constituted with seven members to be also elected by the same electorate as elects the trustees. Amongst the powers conferred on the Board of Supervision will be the sanctioning of the annual budget, the sanctioning of leases over three years or of sales of immoveable property belonging to the temple when such sales would otherwise be legal the sanctioning generally or specifically of the modes of investment of temple funds, the final determination on appeal of any disputes or differences relating to ritual or practice, the determination of any appeals by temple servants fined, suspended or dismissed from office by the trustees and also the conducting of elections and the carrying out of the audit of temple accounts. Subject to these limitations all the praties hereto and any worshippers at the temple may file any proposals or suggestions for the revision of the scheme on or before 31st August next. Copies of these proposals should be submitted by parties filing them to the practitioner engaged for the various parties in the suit and also to the Advocate-General and any objections to any of the proposals or suggestions so filed may be filed in Court on or before the 30th of September next and the case will be posted for final revision of the scheme after the 15th of October.
31. The plaintiff will within a month give notice to all worshippers of the proposed revision of the scheme and of the orders made herein with regard to the same by circulating 'handbills in English, Tamil and Telugu and publishing notices in two issues at intervals of a week each of 'The Hindu' and 'The Justice', in English and of 'Swadesamitran' in Tamil, and of 'Andhrapatrika' in Telugu. The costs of these notices and publications will be advanced by the' plaintiffs in the first instance and recovered from the temple funds.
32. As regards the costs of the suit we direct that the defendants do pay and bear their own costs and though as regards the costs of the plaintiffs we were not disinclined to let them have their costs from the temple funds, we are glad to say that the plaintiffs with commendable propriety have not pressed their claim for the same. There will therefore be also no order as to the costs of the plaintiffs.