JUDGMENT
A. Alagiriswami, J.
1. The defendants are the appellants. In 1904 one Venkata Chetty and one Rangammal executed a deed of trust Exhibit A-1 in favour of Maniam Kaliappa Goundar. In 1924, Kaliappa Goundar’s nephew, the present third defendant, sold these properties under Exhibit A-2 in favour of one Billiammal. Billiammal has conveyed her rights in favour of the first defendant and the first defendant has created a maintenance right in favour of the second defendant over the suit properties. The plaintiff who is the trustee of Sri Kulandaivelayuthaswami Devasthanam, Kurundamalai, filed the suit out of which this second appeal arises, for possession of the suit properties on the ground that the properties had been endowed in favour of the Devasthanam. The contentions of the defendants were firstly that the effect of the document executed by Venkata Chetty and Rangammal in favour of Kaliappa Gounder was that he became the owner of the properties and the properties were merely charged with expenses of certain charities to be performed under the deed, secondly that the sale by 3rd defendant was for legal necessity, thirdly that plaintiff is not entitled to maintain the suit and lastly that the suit is bared by limitation.
2. There is no substance in any one of the first three contentions. As regards the first, it is clear that Exhibit A-1 was not gift deed in favour of Kaliappa Gounder. A reading of the document would make it clear that he was merely constituted a trustee for performing poojas and rathotsavams of the Devasthanam, which were used to be done earlier by the persons who created the deed. No beneficial interest has been given to Kaliappa Goundar himself. There can, therefore, be no question of Kaliappa Gounder becoming the owner of the properties and the properties being merely charged with expenses of the charities. Kaliappa Goundar was merely a trustee.
3. As regards the second point clearly the sale is not for legal necessity. Exhibit A-2 shows that the present third defendant, who executed it, found it difficult to look after the suit properties and also to lease the same or realise the lease amount, and therefore, he was alienating the same. It is also stated that as there was no proper way to go to the lands by cart or otherwise, the properties were being sold in order that the third defendant might purchase other properties instead. Admittedly, the third defendant has not purchased any other property. The reason mentioned above cannot be put forward at all, as sufficient justification for the sale or its constituting legal necessity justifying the sale. After all the persons, who have purchased the properties were enjoying the same and apparently they are able to reach those lands. So the contention of the legal necessity for the sale has got to fail.
4. As regards the third point the plaintiff is appointed by the Hindu Religious and Charitable Endowment Board as a trustee for the temple. Even apart from these considerations, it is well established that any worshipper of a temple can institute a suit to recover the temple property which has been wrongfully alienated by a trustee. The third defendant has executed Exhibit A-2 merely as a trustee and therefore, the plaintiff can maintain this suit.
5. Lastly comes the question of limitation. On this point the contention on behalf of the defendants is that the third defendant having sold the properties in 1924 and not having had anything to do with the temple or with the trust after that date, the suit is barred by limitation under Article 134-B of Schedule I of the Limitation Act. The contention on behalf of the plaintiff is that as the third defendant is still alive and has not been removed, nor has he resigned, the suit is in time. Defendants 1 and 2, who are persons interested in the property, have in paragraph 17 of the written statement stated as follows on this point;
The plaintiff has not chosen to state from when Muthuswamy Gounder has not been functioning as a trustee. These defendants do not admit that Muthuswamy Gounder has not been removed or resigned so as to give a cause of action for the plaintiff to file this suit.
The contention is put in a very involved way. They do not say whether Muthuswamy Gounder has or has not been removed or has or has not resigned. The third defendant himself also does not say whether he is still a trustee. All that he says in paragraph 5 of his written statement is as follows:
The defendant has administered the trust properly when he was actually in charge of trust and the allegations to the contrary are all false. As already stated this defendant and his father have spent more than Rs. 6,000 from their funds for the purpose of protecting the interests of the temple. This defendant no doubt was liable to render accounts in respect of the amounts received and when the proper person approaches him for the rendering of the amounts, this defendant will be prepared to do so. In fact, he is anxious for a settlement of accounts since actually a sum of Rs. 1,000 will be due to this defendant from the trust.
Thus, he has not repudiated the trust. He has not stated that he is no longer the trustee. He admits his liability to render accounts and even his statement that he has administered the trust properly when he was actually in charge of the trust, is not quite clear as to whether subsequently he has been administering the trust or not. However, strictly speaking, the third defendant cannot be said to have either resigned or removed from the trusteeship or to have ceased to be the trustee.
6. Reliance was placed upon the decision in Bhuban Mohan Koley v. Narendra Nath Konwar (1930 35 Cal.W.N. 478, where it was laid down that a shebait his no vested interest in the debutter property; he is a mere manager of the idol to whom the property belongs and being a manager, he ceases to be a shebait when he ceases to manage the property and carry on the worship of the idol. Now in this case neither the third defendant nor Kaliappa Gounder were in charge of the temple duties. They were merely in the position of Kattalai trustees and, therefore, this decision cannot be applied to the facts of this case. The decision in Ramlagan Gossain v. Karidipat Mohton A.I.R. 1938 Pat. 143 is not at all in point. On the other hand in Sanyasamma v. Vireswaraswami , it has been laid down that it is not the cessation of trusteeship generally that matters for purposes of the application of Article 134-B, that the cessation must be by means of the three events referred to in the third column of the article, death, resignation or removal, that the prior trustee may have alienated wrongfully all properties belonging to the trust, but that does not mean that he has ceased to be trustee and that the period of limitation will start only from the date of the order of appointment of the new trustees and formal removal of the prior trustee. Now all these cases may not be very much in point after the decision of the Supreme Court in Srinivasa v. Ramaswamy , on which the appellants rely. The fact in that case were as follows:
7. One Pachai Kandai Udayavar was the trustee of a temple. Almost all the properties belonging to the temple had in course of time been alienated and the alienors were no longer interested either in the temple or staying in the village itself. Worship in the temple for 27 years had been performed by other people and the alienor and his son had left the village more than 25 years earlier. But they were alive on the date of suit. The Hindu Religious and Chartiable Endowment Board appointed the plaintiffs in that suit as trustees in June, 1948 and in that order it was stated that there was no legally constituted, trustee of the temple. On these facts, the trial Judge held that the alienor must be deemed to have resigned his office and left it. The first appellate Court held that the transferor and his family had been claiming beneficial interest in the properties all along and that they were not holding the same as managers of the trust and that, therefore, confirmed the finding of the trial Judge. On the question of possession though on a somewhat different ground the High Court relied on the fact that the alienor was still alive and so held that the plea of adverse possession could not be sustained. The Supreme Court in discussing this question observed as follows:
Unfortunately, the question as to whether the facts proved in this case did not show that the alienor had been removed from office by other persons who were in management of the temple de facto has not been discussed by the High Court. In our opinion, all the facts which nave been brought on the record in relation to this aspect of the matter, clearly show not only that the alienor disposed of all the property and left the village, but also that for the last 25 years or so, the management has been taken over by other persons who are acting as de facto managers of the temple. This evidence appears to us to show that the alienors had been removed from management of the temple, and other persons have taken up the position as de facto managers; and this position has lasted for more than 25 years. If that be so, there is no escape from the conclusion that more than 12 years have elapsed since the date of the removal of the previous manager who transferred the properties in question; and so, if a suit were brought by respondents 1 to 3 on the date when they were appointed trustees by respondent No. 4 it would be barred under Article 134-B.
8. It would be noticed that the principle of that decision would not apply to the facts of this case. Here, we are not concerned with the manager of the temple alienating the temple properties, neither Kaliappa Gounder, nor the third defendant, were the managers of the temple; nor had there been any change in their position as in the case before the Supreme Court. When the suit was filed, defendant 3 was alive. It is not a case where like the alienors in the Supreme Court case they had left the village altogether. In a case like the present one where the temple trustee and the Kattalai trustee are different persons and the latter had alienated the properties endowed for the Kattalai, it is open to the general trustee of the temple, if the actual trustee who has alienated the properties is still alive to institute a suit to recover the Kattalai properties. The trustee who has alienated is still alive, he has not left the village, he has not resigned, nor has he been replaced by some other trustee either appointed by the Hindu Religious and Charitable Endowment Board or de facto trustee, who has taken over the performances of the trustee’s duties. It cannot, therefore, be held that the third defendant in thus case has been removed from his trusteeship; nor has he resigned. Article 134-B could have no application, as none of the contingencies contemplated by that Article have taken place in this case.
9. The suit is, therefore, in time and the Second Appeal is dismissed as one without substance. Parties will, however, bear their own casts as what has happened is not due to the mistake wholly on the part of the defendants.
10. No leave.
