S. Maharajan, J.
1. The suit out of which these two appeals arise was instituted in forma pauperis by three plaintiffs, (1) for a declaration that they are co-trustees of the suit trust along with the fifth defendant (2) for a direction to the defendants 1 to 4 and 6 to hand over possession of the trust properties, accounts and records to the plaintiff and the fifth defendant, (3) for a direction to the defendants 1 to 4 to render a true and correct account of the income and expenses of the trust, both for the period prior to the death of Ramakrishna Iyer, father of defendants 1 to 3 and for the period subsequent to his death, (4) for a decree against defendants 1 to 4 to pay the plaintiffs and the fifth defendant all the amounts that may be found due on accounts, (5) for a direction to the sixth defendant to pay the plaintiffs and the fifth defendant damages for wrongful possession of the plaint item 1 at Rs. 500 – per mensem from the date of plaint upto the date of delivery of possession, and (6) for costs.
2. The case of the plaintiffs was that the immovable properties situate in Madurai town and described in the plaint schedule as well as the cash of Rs. 2,000 belong to the trust called ” Thurvas J. Muninagendra Iyer, Nagier, Krishana Iyer, Jayarama Iyer Dharmam”. As shown in the genealogical table attached to the plaint, the plaintiffs and the defendants 1 to 5 are the descendants of one Jagannatha Iyer, who had four sons, Muninagendia Iyer, Nagier, Krishna Iyer and Jayarama Iyer. By a registered deed dated 20th October, 1930, Lakshmana Iyer, son of Muninagendra Iyer, representing the first branch, Narasimha Iyer, son of Nagier, representing the second branch, Ramasami Iyer, Seshadti Iyer and Sundararaja Iyer, sons of Krishna Iyer, representing the third branch, and Subbier and Rama Iyer, sons of Jayarama Iyer, representing the fourth branch, created a trust. The trust deed shows that a sum of Rs. 2,000 had already been endowed to the trust for the purpose of performing poojas and neivedyams to Sri Ramar and Hanumar already installed by the said Thurvas family at Sri Kooda-lagar Perumal Temple at Madurai, as well as for the performance of the annual Sri Ramanavami Festival. Under the said document, a further sum of Rs. 10,500-was endowed for the purpose of constructing a platform for the Dwajasthambam already built by the said family in the said temple, for the purpose of completing the gold covering of the Dwajasthambam and for the purpose of celebrating the Kumbabishekam for the Dwajasthambam as well as for the purpose of completing the construction of an incomplete chatram building in Door No. 1, Nallathannir Kinar Lane, South Masi Street, Madurai. The chatram building for which the foundation had been laid and basement had been constructed was also endowed under the deed, which provided that the idol of Krishnaswami should be installed in the chatram at a cost of Rs. 1,000 from out of the trust amount of Rs. 10,500. Under the said deed of trust all the records, accounts and cash belonging to the trust were to be with the branch of Muninagendra Iyer. Four trustees were appointed under that deed for the performance of the trust, and they were Lakshmana Iyer belonging to the first branch, Narasimha Iyer, belonging to the second branch, Seshadri Iyer belonging to the third branch and Subbier belonging to the fourth branch. It was provided in the deed that if any co-trustee in any branch died, he should be succeeded by a person older in age in that particular branch as a co-trustee. Accordingly upon the death of Lakshmana Iyer, his brother’s son T.M.V. Ramakrishna Iyer, who was the father of the defendants 1 to 3 and the husband of the fourth defendant, being the oldest in that branch, became the co-trustee in the place of Lakshmana Iyer. Likewise, upon the death of the other co-trustees, who represented the three other branches, the oldest persons in each branch became the co-trustees. On the date of suit, the plaintiffs 1 to 3 had become the co-trustees representing the three branches. T. M. V. Ramakrishna Iyer, who became the co-trustee, was permitted at his own request, to manage the trust properties himself and to keep correct and proper accounts of the income and expenditure of the trust on condition that he showed the accounts for checking and verification whenever his co-trustees demanded the same. It was also agreed between Ramakrishna Iyer and the three co-trustees that whatever cash belonging to the trust that remained in the hands of Ramakrishna Iyer should be utilised by him on payment of compound interest at 6 per cent per annum with annual rests. This arrangement was entered into because the three other branches became financially weak. After Ramakiishna Iyer became the co-trustee, he spent for the construction of the incomplete chatram by advancing monies out of his joint family funds and was repaying himself out of the rental income from the chatram buildings. He leased out the chatram building, Door No. 1, Nallathanni Kinar Lane, South Masi Street, Madurai, and the adjoining building, Door No. 7-A (items 1 and 2 in the plaint schedule) to various tenants and realised the rentals from them. As he failed to perform the charities as directed in the deed of trust and to show the co-trustees the accounts of the trust for verification, a registered notice was sent to Ramakrishna Iyer and his brothers on 19th March, 1952, by the then three co-trustees calling upon him to render accounts of his management of the trust funds. By his reply dated 10th April, 1952, Ramakrishna Iyer made certain false allegations, while at the same time expressing his willingness to show the accounts. But Ramakrishna Iyer failed to show the accounts to the co-trustees and continued to carry on the management of the trust till he died on 21st May, 1962. Thereafter, the defendants 1 to 3, his sons, and the fourth defendant, his widow, have been in possession of the trust properties including the cash, accounts, records, etc. As par the trust deed, the fifth defendant alone is entitled to succeed Ramakrishna Iyer as co-trustee, because he was next oldest male member, in Ramakrishna Iyer’s branch. The defendants 1 to 4 are not entitled to retain the trust properties or accounts and are, therefore, liable to render accounts of the management by Ramakrishna Iyer as well as for their wrongful management of the trust after the death of Ramakrishna Iyer. The properties will fetch a monthly income of not less than Rs. 600, and the defendants 1 to 4 are, therefore, liable to pay the plaintiffs and the fifth defendant damages or mesne profits at the said rate from the date of death of Ramakrishna Iyer till delivery of possession. The defendants 1 to 3 would appear to have leased out the chatram building in Door No. 1, Nallathannir Kinar Lane, South Masi Street, Madurai, to the Sixth defendant on a rent of Rs. 500 per mensem. In reply to the notice sent by the plaintiffs, the sixth defendant falsely alleged that the rent was only Rs. 250. The sixth defendant is liable to be ejected from the premises and to pay damages at Rs. 500 per mensem. These are the facts on the basis of which the plaintiffs claimed the reliefs already mentioned. The plaintiffs also prayed for the framing of a scheme for the administration of the suit trust but they gave up that relief subsequently.
3. The defendants 1 to 3, in their objections to the pauper petition, denied that the plaintiffs were the co-trustees. According to them even from 1913, the management of the trust vested in their family, their paternal grandfather managing it till his death, and thereafter their father Ramakrishna Iyer managing it exclusively. During the minority of their father, Ramakrishna Iyer, his mother and guardian Kaveri Ammal and Muthu-lakshmi Ammal wore managing the trust. After the death of Ramakrishna Iyer, the first defendant has been managing the affairs of the trust. Further, the Court would have no jurisdiction to take cognizance of the suit, as under the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, the reliefs prayed for by the plaintiffs can be granted only by the Deputy Commissioner.
4. In their answer to the plaintiffs, after the pauper original petition was converted as suit, the defendants 1 to 4 stated that they were not aware of the trust deed dated 20th October, 1913 mentioned in the plaint, that the gift deed dated 20th October, 1913 executed by Lakshmana Iyer would reveal that his heirs alone would be entitled to the suit properties, that neither the plaintiffs nor their ancestors had any right to manage the trust properties, that the suit was barred by limitation, and that under Section 92, Civil Procedure Code, the suit was barred for want of sanction by the Advocate-General.
5. In their additional written statement filed nearly 11/2 years after their original Written statement, the defendants 1 to 4 pleaded that the suit properties originally belonged to the entire joint family of the four branches, that the manager of the Hindu undivided family had no right to execute a gift deed, that the endowment itself was invalid ab initio, and that the defendants 1 to 4 were in law entitled to ignore the document and to treat the properties as continuing to vest in the joint family. They further pleaded that the plaintiffs did not exercise any act of ownership in respect of the suit properties and that they were ousted there from by the forefathers of the defendants who have been in enjoyment adversely to the plaintiffs, and thereby acquired prescriptive title.
6. The fifth defendant, who is the brother of Ramakrishna Iyer, filed a separate answer, in which he contended that after Ramakrishna Iyer’s death, he succeeded him as the sole trustee and that a decree might be granted as prayed for in favour of the fifth defendant alone.
7. The sixth defendant, in his answer, admitted that he was in possession of item 1 of the plaint schedule as lessee, and that he obtained the lease bona fide from the first defendant for a period of five years from 16th June, 1965 at a monthly rental of Rs. 225 under the impression that the first defendant was the managing trustee of the above trust. The sixth defendant further stated that he was willing to pay the rent to the plaintiffs if ordered by the Court.
8. The plaintiffs filed a replication statement, in which they contended that inasmuch as the suit trust deed dated 20th October, 1913 had been acted upon up to date, it is valid and binding on all the four branches, and the defendants 1 to 4 were not entitled to ignore the same. They denied that Ramakrishna Iyer and his sons have acquired any title by adverse possession. Ramakrishna Iyer was in possession only in pursuance of the authority granted by his co-trustees.
9. The learned Principal Subordinate Judge, Madurai, framed five issues. He recorded the finding that the members of the four branches endowed the suit properties in trust for the performance of certain religious charities in the Koodalagar temple at Madurai, that the trust was created for the benefit of the four branches, that it was not the private exclusive family trust belonging to the first branch, that the trust was not a public trust, but a private one, that, therefore, the suit was not barred under Section 92(1) of the Code of Civil Procedure for want of sanction of the Advocate-General, that the suit was not barred by any of the provisions contained in the Tamil Nadu Hindu Religious and Charitable Endowments Act, that the defendants 1 to 4 had not perfected title to the right of sole trusteeship by adverse possession, that after the death of Ramakrishna Iyer, the fifth defendant succeeded him as trustee under the trust deed, that or the date of the suit, the plaintiffs and the fifth defendant were entitled to function as trustees of the suit trust, and that the sixth defendant who had obtained a lease from the first defendant, must be regarded as a trespasser and is therefore liable to be evicted. The learned Subordinate Judge further held that the defendants 1 to 4 as the legal representatives of Ramakrishna Iyer are not liable to render accounts, and that the suit being one for accounts, pure and simple, and not for any specific sum of money, is not maintainable. Consequently, he granted a decree declaring the plaintiffs and the fifth defendant as the lawful trustees of the trust entitled to be in possession and management of the trust and its properties and directing the defendants 1 to 4 and 6 to hand over possession of the suit properties to the plaintiffs and the fifth defendant. The decree directed that the mesne profits payable by the defendants 1 to 4 and 6 from the date of plaint upto the date of delivery of possession be ascertained in a separate enquiry under Order 20, Rule 16, Civil Procedure Code. The claim for rendition of accounts and for the framing of a scheme was dismissed. The plaintiffs were awarded proportionate costs against the defendants 1 to 4 and 6, who were directed to pay the proportionate Court fee due to the Government. The balance of the Court fee was directed to be paid by the plaintiffs.
10. Against this judgment, the defendants 1 to 4 and 6 have preferred A.S.No. 343 of 1969 and the plaintiffs have filed A.S.No. 311 of 1970 attacking the judgment of the lower Court in so far as it refused to grant them the relief of rendition of accounts.
11. The following points arise for determination in both these appeals:
1. Whether the suit endowment was made by the ancestors of the plaintiffs and defendants 1 to 5 or exclusively by the grandfather of the defendants 1 to 4?
2. Whether it is open to the defendants 1 to 4 to contend that the endowment is in any event void ab inilio?
3. Whether the defendants 1 to 4 and their predecessor have by adverse enjoyment prescribed title to exclusive trusteeship of the suit trust?
4. Whether the three branches represented by the plaintiffs 1 to 3 have abandoned their right to trusteeship?
5. Whether after the death of Ramakrishna Iyer, the right to manage the trust has devolved on the fifth defendant or on defendants 1 to 4?
6. Whether the suit for rendition of accounts against the legal representatives of Ramakrishna Iyer is not maintainable? If maintainable, what is the nature and extent of the liability of defendants 1 to 4?
7. Whether the defendants 1 to 4 are not liable to render accounts for the period of their management?
8. Whether the suit is barred under Section 92, Civil Procedure Code, or under any of the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act?
9. Whether the sixth defendant has been lawfully let into possession of item 1 of the plaint schedule as tenant, and if not whether he is not liable to be evicted therefrom?
10. Whether the sixth defendant is liable to pay damages for wrongful occupation, and if so, at what rate and to whom?
Point No. 1 : The following genealogical table enables us to understand the relationship between the parties inter se:
[Jagannatha Iyer (died)]
Muninagendra Iyer (died) Nagier (died) Krishna Iyer (died) Jayaramier (died)
| | | |
________________________ Narasimha Iyer (died) | __________________
| | | | | |
Venkatachalapathy Lakshmana | | Subbier (died) Ramier
Iyer (died) (died) | | (died)
| | | | ____________________ |
| Jaganatha Iyer | | | | |
| (5th | | Krishnamachari Jaya- |
| defendant) | | (1st Plff.) raman |
| | | |
____________________ ______________________________ | |
| | Sundara- Nannier Kuppu- Rama- Kris-| |
Ramakrishna Nannier ramier (3rd P- samy murthy moort| |
Iyer (died) lff.) hy | |
Kavery Ammal | | _____________________________
(Wife) _________________________ | | |
4th defendant) | | | | Rajaram Raja gopal
| | | | |
_____________________________ Subramaniam Genesan |
| | | _______________________________________
Krishnam Vedaraman Ramaratnam | | |
oorthy(ist (2nd def- Chandra Se- | | |
defendant) enant) karan (3rd | | |
defendant) Ramaswamy Iyer Sesgadri Iyer Sundararaja Iyer
(died) (died) (died) (No issues)
| | |
| Subbarama Iyer Ramachandra Iyer
| (died) (died)
| | |
| | | | |
|Swami Rao Sachithanandam Subramaniam Krishnamurthy
Seetharama Iyer Rangachary | |
(died) (No issues) (died) Nannier (2nd Plff.) Gopal Iyer
Krishnamoorthy Sugabiramam Jannarthanan
Their common ancestor was one Jagannatha Iyer, who died leaving him surviving four sons (1) Muni-nagendra Iyer, (2) Nagier, (3) Krishna Iyer and (4) Jayaiama Iyer. It appears that these four brothers remained undivided, and during their life time they spent out of the joint family funds and installed the deities of Sri Rama and Sri Henuraar in the Peeta Mantapam within the premises of Koodalagar Sundararaja Perumal temple in Madurai. The recitals in the subsequent settlement by their sons show that they performed the Kumbabishekam for the deities and plated part of the Dwajasthambam with gold, and with a view to perform Annadhana Charity, they endowed a site in which they laid the foundation of a chatram building and built a basement wall. They also endowed a sum of Rs. 2,000 for performance of pooja and neivedyam on festival occasions for Sri Rama and Sri Hanuman. Before they could complete the building, the four brothers died, leaving them surviving the sons mentioned in the geneological tree. Subsequent to their death, that is to say, on 20th October, 1913 their sons, effected a partition of their joint family properties under Exhibit A-18. In this deed Lakshmana Iyer, son of Muninagendra Iyer, represented the first branch, Whereas Narasimha Iyer, son of Nagier, represented the second branch, Ramaswamy Iyer, Seshadri Iyer and Sundararaja Iyer, sons of Krishna Iyer, represented the third branch, and Subbicr and Ramier, sons of Jayarama Iyer, represented the fourth branch. In this deed, the members of the four branches provided that each branch should contribute Rs. 7,500 worth of properties for carrying out the charities performed by their founding fathers. In pursuance of this term in the partition deed, Exhibit A-18, a deed of trust was executed on the same day, that is to say on 20th October, 1913 by the representatives of the four branches, who were also parties to the partition deed. Though the relationship among the four branches was denied by the defendants 1 to 4 in their answer, the recitals made in Exhibit A-1 establish the correctness of the relationship set out in the genealogical tree appended to the Plaint. In this deed, reference is made to the fact that a sum of Rs. 2,000 had been set apart by the original four brothers for the purpose of performing pooja and neivedyarr in the Sannidhis of Sri Ramar and Sri Hanumar in the Koodalagar temple and to the incomplete chatram built by the four brothers for the performance of Annadhanam charity, for the purpose of completing the gold plating of the Dwajasthambam and constructing a platform around the Dwajasthambam and for the purpose of the Annadhanam charity the executants of Exhibit A-l endowed under this document, besides the sum of Rs.2,000 already endowed by their fathers, a further sum of Rs. 10,500 and a chatram site worth Rs. 5,000. There is a provision in this deed, which says that the chatram to be built should be named “Thurvas” J. Muninagendra Iyer, Nagier, Krishna Iyer, Jayarama Iyer. Dharmam. This recital gives the life direct to the story of the defendants 1 to 4 that the other branches have nothing to do with the trust and that it is their ancestor in the first branch who exclusively founded the trust. There is also a recital in Exhibit A-1 to the effect that Lakshmana Iyer of the first branch was in custody of the cash and records belonging to the trust and that Nos. 1,2, 4, and 6 viz-, Lakshmana Iyer, Narasimha Iyer Seshadri Iyer and Subbier, should be the trustees representing the respective four branches. There is also a term in this deed which delineates the line of succession to the four trustees, and it is to the effect that after the death of each of the then existing trustees, the senior most member of his branch should succeed him. The terms of Exhibit A-1, therefore, make it clear that the suit endowment was made, not by the grandfather of the defendants 1 to 3 exclusively, but by the ancestors of the four branches jointly. We therefore, confirm the finding of the Court below in this behalf and answer this point against the defendants 1 to 4, who are the appellants in A. S. No. 343 of 1969.
Point No. 2 : – The defendants 1 to 4 who, in their original answer, affirmed the suit trust and said that it had been founded by their ancestor and that the trust was being scrupulously performed from 1913 up-to-date, performed a volte-face in, their additional written statement, probably after they came to know the terms of Exhibit A-1, which showed that the ancestors of the four branches had jointly Created the trust. In their anxiety to frustrate the plaintiffs, the defendants contended in their additional written statement that the trust itself was invalid, because it related to ancestral joint family property, and the manager of a Hindu joint family had absolutely no right to execute a gift in favour of the trust. This is a plea which is clearly inconsistent with the stand of the defendants 1 to 4 in their original written statement and is altogether untenable. The first defendant, who is the eldest of the sons of Ramakrishna Iyer, was 31 years old in 1967 when the suit was filed. He must have been born, therefore, in 1936. The trust had been executed even in 1913, several decades before the birth of the defendants 1 to 3. As we have already mentioned, the trust appears to have come into existence, not even in 1913, but much earlier, during the lifetime of Muninagendra Iyer, the great- grandfather of the defendants 1 to 3. Neither Venkatachalapathy Iyer, the grandfather of the defendants 1 to 3, nor Ramakrishna Iyer, the father of the defendants 1 to 3, impugned the validity of the gift deed. On the other hand, the properties were gifted to the trust in pursuance of an arrangement entered into at the time of partition among the four branches. It is, therefore, clearly binding upon the four branches. We have little hesitation in negativing the plea of the defendants 1 to 3 that the trust deed is void ab initio. This point is answered against them.
Point No. 3 :–It appears that though the four branches were jointly managing the trust from 1913 for some years, the members of the second, third and fourth branches fell on evil days after the First Great War and became impecunious, With the result that the representative of the first branch was requested to manage the trust, advance monies out of his own pocket for construction of buildings in the trust property and to reimburse himself from the income of the trust property. These facts can be gathered from a lawyer’s notice sent by Ramakrishna Iyer, the father of the defendants 1 to 3, on 10th April, 1952 (Exhibit A-4) in reply to Exhibit A-3 dated 19th March, 1952. a notice sent to him by: (1) Ramier, son of Jayarania Iyer, of the fourth branch (2) the second plaintiff, Nannier, son of Ramaswamy Iyer and grandson of Krishna Iyer, of the third branch, and (3) Nagier, son of Narasimha Iyer, of the second branch, in which, as co-trustees. of Ramakrishna Iyer, they called upon the latter no render accounts in respect of the income from the trust properties. In his reply, Exhibit A-4, Ramakrishna Iyer made the following statements:
Though the trust deed enjoined all the 4 groups to contribute equally for the construction of the common trust premises and building at No. 1, Nallathanneer Kinaru Street, South Masi Street, the other 3 groups, except my client, did not contribute anything. It may also be stated herein that due to heavy loss in business, due to speculative trade which the other 3 groups conducted in the last 1914-1918 Great War and even before that, all the 3 groups lost all their properties and most of them had reached the state of bankruptcy and some of them also were actually adjudged as insolvents In these circumstances, my client’s family was requested to spend for the constructions and also for carrying on the charities mentioned in the deed As a fact the other groups requested and agreed for my client’s spending and they also further agreed that what ever moneys my client spent, he should recoup from the income of the trust properties and whatever amounts advanced by the family shall carry interest at 12 per cent, per annum Accounts have been properly maintained for the trust both with reference to the income and also expenses and amounts to the tune of several thousands of rupees were spent for putting up substantial construction of a house in Nallathanneer Kinaru Street and by virtue of such construction the building is now yielding Rs. 250 per mensem.
Ramakrishna Iyer made the following statements also in his reply notice, which throw light upon the nature of his possession of the trust properties:
My client also has been appropriating the rents and profits received towards the amounts due to the family all these years and even this appropriation is being made only after meeting out the other expenses of the trust. Even now as per the accounts a sum of Rs. 2897-4-8 is still due to my client for the year ending with Punauni 30th of Vikruthi. The said appropriation has been made only for the principal amount and interest is outstanding all these years. The accounts of the trust as well as the family accounts of “T.M.V.L. Sons” would disclose this fact.
It is clear from this reply notice that because the members of the other branches became either impecunious or were adjudged insolvents, they requested the representative of the first branch to manage the trust on their behalf after authorising him to spend monies for the construction of the chatram out of his own pocket and to reimburse himself out of the income from the trust properties. It is also clear from Bamakrishna Iyer s reply, Exhibit A-4 that till 10th April, 1952, a sum of Rs. 2,897-4-8, remained due by the trust to his branch. If Ramakrishna Iyer’s branch was allowed to be in management of the trust properties, without let or hindrance from the other three branches, it was evidently because of the authority conferred on him by the other three branches to manage the trust on their behalf, to lend monies out of his own pocket to the trust and to reimburse himself out of the income from the trust properties, liamakrisbna Iyer’s possession of the trust properties Was thus found to be referable to the lawful arrangement entered into among the four branches. There is, therefore, no basis for the plea of the defendants 1 to 4 that Ramakrishna Iyer had ousted his three co-trustees and was in exclusive possession of the trust properties in hostility to them sc as to be able to prescribe title to the exclusive trusteeship for the suit trust. It is true that in Exhibit A-4 Ramakrishna Iyer also set up a plea that he had became the sole trustee by adverse possession, but then that plea was necessarily inconsistent with the arrangement set forth by him in Exhibit A-4, whereby, according to Ramakrishna Iyer himself he was requested by the other three branches to manage the trust, spend out of his pocket and reimburse himself out of the it come from the trust properties. If his sole management was due to the authority and permission granted by the other branches, and if, as he said, a sum of Rs. 2897-4-8 still remained due to him from the trust, he was entitled to continue in possession of the trust properties till his entire dues were discharged; and he could not during the relevant period be deemed to be in possession adversely to his co-trustees. It is not known on what date the amount due to him by the trust was fully discharged along with the interest which he claimed to be outstanding. Ramakrishna Iyer himself died on 21st May, 1962. On 10th July, 1965, the plaintiff, issued a registered notice to the defendants 1 to 3 calling upon them to hand over possession of the trust properties and to render accounts of the transactions of the deceased Ramakrishna Iyer. The defendants 2 and 3, who received the notice, sent no reply. The suit itself was filed on 17th January, 1966. The defendants 1 to 4 have, therefore, failed to establish their plea in their additional written statement that by enjoyment of the suit trust adversely to the other three branches, they have prescribed title to the sole trusteeship of the suit trust. Where, as per Exhibit A-1, the representatives of the four branches are entitled to jointly manage the trust, and where in the eye of the law, possession of the trust properties by one of many joint trustees will be deemed to be possession on behalf of all, and where it is further admitted that the exclusive possession by Ramakrishna Iyer was referable to the permission of his co-trustees, very strong and unequivocal evidence would be needed indeed to support the improbable story that Ramakrishna Iyer prescribed title to the office of his three co-trustees by adverse enjoyment as against them. It is true that 14 years had elapsed between Exhibit A-4, in which Ramakrishna Iyer claimed to be in adverse possession, and the date of plaint. But then, as we have already held, the claim of adverse possession by Ramakrishna Iyer in Exhibit A-4, was untenable as he admitted in the same breath that it was at the request of his co-trustees, the representative of his branch was in exclusive management of the trust properties and that in pursuance of that request, he had spent monies out of his pocket for constructing buildings on the trust site and that monies were still due by the trust to him to the tune of Rs. 2,000 odd along with interest for several years. The plea of adverse possession by Ramakrishna Iyer would again have meaning and substance only after he had exhausted the authority of his co-trustees to be in possession of the trust properties and to discharge the monies due to him by the trust. As there is no evidence as to when exactly the loans advanced by Ramakrishna Iyer to the trust were fully discharged and as there is no evidence that after the discharge of such loan, Ramakrishna Iyer or his sons asserted any title in hostility to the plaintiffs, we have little hesitation in holding that the defendants 1 to 4 have failed to substantiate their plea of adverse possession. We agree with the Court below and answer this point against the defendants.
Point No. 4 : – The plea of the defendants that the three branches of the plaintiffs abandoned their right to joint trusteeship is not substantiated either. Under Exhibit A-1, a formal registered deed, the representatives of the four branches have been solemnly constituted as joint trustees. If the abandonment pleaded were true, one would look for an equally formal registered deed evidencing it put no such deed has been produced by the defendants. Nor is there any evidence to show on what date under what circumstances the branches Nos.2, 3 and 4 abandoned their trusteeship interest and who are the representatives of those three branches who were parties to the abandonment. The issue of a notice Exhibit A-3, dated 19th March, 1952 by the plaintiffs shows no consciousness of the abandonment whatsoever. Evidently they waited for Ramakrishna Iyer to reimburse his dues out of the trust income before revising their right to joint management of the trust. In the absence of any affirmative evidence adduced by the defendants in this behalf, we feel constrained to answer this point against the defendants.
Point No. 5 : – Reference has already been made to the line of succession prescribed in Exhibit A-1, the deed of trust. Learned Counsel for the defendants would construe the relevant passage in Exhibit A-1 to mean that the line of succession was prescribed only for one generation after the death of the original trustees and that no provision has been made for the mode of devolution of the office of the trusteeship thereafter.
We are unable to agree. The terms of the deed show that the intention of the founders was to make a comprehensive and detailed provision for the administration of the trust for all time; for instance, the deed says that out of the surplus income from the trust properties, the trustees shall buy nanja lands, houses and shop buildings in their names for the benefit of the trust and lend the monies of the trust for interest. Another clause says that the trustees may, whenever necessary, delegate their functions to others, but the delegate shall not be entitled to any salary or remuneration. It appears that it was presumably in pursuance of the power to delegate, the three branches delegated, their functions to the representative of the first branch, because they were in straitened circumstances. Another clause in the deed says as follows:
This passage may be translated as follows:
The trustees who have been constituted now shall function as trustees and perform the charities without making any default and after them the eldest surviving member of each of the four branches shall become the trustees or the trust and conduct the charities.
There is nothing in the language of this clause to show that the line of devolution prescribed is limited to the immediate succession of the then co-trustees. A fair and reasonable reading of the recitals in the deed would show that the mode of devolution prescribed would apply every time a vacancy arose in the office of the trusteeship. If out of four trustees belonging to the four respective branches, one trustee died, the eldest member of the branch to which the deceased trustee belonged, should succeed. If this is the mode of devolution, it would follow that when Ramakrishna Iyer, who belonged to the first branch died, his office of joint trusteeship devolved, not on defendants 1 to 6 who are the sons of Ramakrishna Iyer, but on the fifth defendant, who is the son of Ramakrishna Iyer’s paternal uncle, and who was undoubtedly the eldest surviving member of the first branch at the time of Ramakrishna Iyer’s death. It is not disputed that the third plaintiff is the eldest surviving member of the second branch, that the second plaintiff is the eldest surviving member of the third is eldest surviving member of the third branch and the first plaintiff is the eldest surviving member of the fourth branch. We would therefore, hold that upon the death of Ramakrishna Iyer, the right to manage the trust jointly with the plaintiffs 1 to 3 devolved, not on defendants 1 to 3 out on the 5th defendant. This point is answered accordingly.
Points Ms. 6 and 7 : – It would follow from the findings recorded above, that the attendants 1 to 4, upon the death of Ramkrishna Iyer, retained possession of the trust properties merely as interlopers or trustees de son tort. They are, therefore, clearly liable to render accounts to the Plaintiffs for the income and expenditure from the trust properties from 21st May 1962, the date of death of Ramakrishna Iyer upto the date of delivery of possession. The learned Subordinate Judge erred in refusing to direct the defendants 1 to 4 to render accounts for the above period As for the period during which Rama Krishna Iyer was in management of the trust properties, he would certainly be liable to render accounts to the plaintiffs goes without saying that he would be entitled to reimburse himself out of the trust monies in case it is found that he had advanced monies to the trust out of his own pocket. But since Ramakrishna Iyer is dead, the question arises what is the liability of the defendants 1 to 4 as legal representatives. It is clear that they are not accountable in the strict sense to the plaintiffs for the period of ‘ management of their father. But it is their duty to place before the Court a the accounts, vouchers and records in their possession with reference to the period of Ramakrishna Iyer’s management. It is open to the plaintiffs to surcharge and falsify the accounts of Ramakrishna Iyer, and to the defendants to lead evidence contra. But if upon, scrutiny of the accounts of Ramakrishna Iyer for the period of his management, any amount is found due by him to the trust, the Court will be justified in granting a decree for that amount against the assets of Ramakrishna Iyer in the hands of the defendants 1 to 4. The learned Subordinate Judge committed an error in holding that the suit for rendition of accounts against the defendants without any claim for any specific sum of money was unsustainable. Admittedly the accounts are in the hands of defendants 1 to 4. It is, therefore, impossible for the plaintiffs, especially in view of the counter claim made by Ramakrishna Iyer, to specify the exact sum of money due by Ramakrishna Iyer to the trust. The money due, if any, could be ascertained only upon a scrutiny of the accounts, after they are produced. If any sum of money were found due by Ramakrishna Iyer to the trust, it will be time enough then to direct the plaintiffs to pay the Court fee thereon as a condition precedent to their executing the decree for the said sum.
12. Reference may be made in this connection to a decision of Viswanatha Sastry J., reported in Peddakka v. Sri Agastheswara Swami 1956 An.W.R. 908 : (1956) An.W.R. 908 : (1956) An.L.T. 750 At page 753, the learned Judge has made the following observations, which have a bearing upon the liability of the defendants 1 to 4:
Merely because, the trustee, who is an accounting party, dies, the liability for accounting for his management is not at an end, nor do his books of account and vouchers gain an immunity from scrutiny or attacks which they would not have enjoyed if he had been alive. If the trustee is alive, he has to explain and vouch for every item of debit and credit in his books; but if he is dead it might be difficult for the legal representative of the deceased trustee to explain the entries in the accounts in respect of transactions of which he had no knowledge. The mere fact that the trustee is dead does not mean that the accounts and vouchers kept by him should be accepted at their face value and not subjected to scrutiny or criticism in a suit for accounts by the cestui que trust. If the legal representative of the trustee is a purdanashin lady or an ignorant or illiterate woman who is not acquainted with her husband’s affairs and had nothing to do with them, the Court will make due allowance and will not insist upon strict proof of the correctness of the accounts, or of the vouchers by the legal representative. All that I am pointing out is that it will be both possible for a legal representative to account for the management of a deceased trustee by producing the accounts kept by the deceased trustee to the extent to which the legal representative has personal knowledge or information. It follows, from what I have said, that a suit for the recovery of a specific sum of money is not the only remedy available to the cestui que trust against the legal representative of a deceased trustee and that a suit for accounts, which, in substance, is really a suit for the recovery of the amount that might be found due to the cestui que trust on taking the accounts of the trust estate would be maintainable. The only difference between a suit for accounts against a trustee and a suit for accounts against the legal representative of the deceased trustee is as regards the mode of accounting by such legal representative and as regards the onus of proving the truth and propriety of the several transactions to which the accounts and vouchers relate.
We respectfully adopt these observations of the learned Judge and answer these points against the defendants.
Point No. 8. – One objection to the maintainability of the suit is that this is a suit for directing accounts in respect of a trust created for public purposes of a charitable or a religious nature, and the suit, is, therefore, barred under Section 92 of the Code of Civil Procedure, for want of the written consent of the Advocate-General. A Full Bench of this High Court in Appanna Poricha v. Narasinga Poricha (1922) I.L.R. 45 Mad. 113 : A.I.R. 1922 Mad. 17 : 41 M.L.J. 608 has held that a suit by a trustee of a public charitable or religious trust against a co-trustee for accounts does not fall within Section 92 of the Code of Civil Procedure and may be brought without the consent of the Advocate-General. As explained in that ruling, the words “directing accounts and enquiries” in Clause (1)(4) of Section 92 of the Code of Civil Procedure, should be confined to suits by the Advocate-General or by two or more persons with his consent against all the trustees for an account of their management, and not to suits filed by one or more trustees against the others, as each trustee has a right to call upon the other to account to him for trust funds he has received, even though the other trustee commits no breach of trust. Further, in this case, the suit is filed not even against the co-trustees, but is filed by the plaintiffs, who are the trustees of the suit trust, for recovery of possession of the trust properties from defendant 1 to 4, who, we have already held, are merely in the position of trustees de son tort. The suit is, therefore, clearly outside the mischief of Section 92 of the Code of Civil Procedure.
13. It is next contended that the suit is not maintainable in a civil Court in view of the provisions of Section 93 of the Madras Hindu Religious and Charitable Endowments Act, 1951, corresponding to Section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, which runs as follows:
No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted, in any Court of law, except under, and in conformity with, the provisions of this Act.
There is nothing in the provisions of this Act, which places an embargo upon the trustees of a public trust filing a suit against a trespasser for recovery of possession of the trust properties. In Vedagiri Temple v. I.P. Reddy , the trustee of a temple filed a suit for rendition of accounts against the ex-trustees, in respect of their management of the temple. Their Lordships of the Supreme Court held that Section 93 of Act, 1951, (which corresponds to Section 108 of the present Act) only imposes a restriction on suits or other legal proceedings in respect of matters for which a provision has been made in the Act and that the legislative history of the section shows that even in regard to suits or other legal proceedings relating to administration or management of religious institutions, restriction is imposed only in respect of matters for which a provision is made in the Act; but the Act does not bar suits under the general law which do not fall within the scope of any of the sections of the Act. Their Lard-ships further held that Chapter VII of the Act, on which reliance was placed by the defendants as providing a complete machinery for deciding disputes in regard to accounts, has no bearing on the question of the liability of an ex-trustee to render account of his management to the present trustee and does not provide for determining or deciding a dispute in respect of such rendition of accounts. In this case, the suit is filed not even against the former trustees, but by the present trustees against the legal representatives of the former trustee, who unlawfully continued in possession of the trust properties. We have, therefore, little difficulty in holding that the suit is not banned under the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. This point is answered against the defendants.
Point No. 9 : – On his own showing, the sixth defendant obtained a lease of item 1 of the plaint schedule only from first defendant, who, at the time of the lease, was a trustee de son tort or an interloper. He is not, therefore, in possession in pursuance of any lawful lease. Consequently, he is liable to be evicted. This point is answered against the sixth defendant.
Point No. 10 : – It follows from the finding recorded above, that the sixth defendant is liable to pay damages for wrongful possession to the plaintiffs. There is no satisfactory evidence to show that item 1 would fetch more than the amount of Rs. 250, which, according to the sixth defendant, he has agreed to pay by way of rent. If he has paid any rent to the defendants 1 to 4, the latter will be liable to account to the plaintiffs for the same. For the period for which the sixth defendant has not paid any rent, he is liable to pay the same at the rate of Rs. 250 per mensem upto the date of delivery of possession.
14. In the result, A.S. No. 343 of 1969 will stand dismissed with costs. A.S. No. 311 of 1970 will stand allowed with costs, and the plaintiffs in addition to the reliefs granted by the lower Court, and in substitution of the direction of the lower Court for ascertainment of mesne profits will be granted a decree against defendants 1 to 4 to render account of the income and expenditure from the trust property for the period from the date of death of Ramakrishna Iyer upto the date of delivery of possession. The decree will further declare that the defendants 1 to 4 as the legal representatives of Ramakrishna Iyer will be liable to pay out of the joint family assets in their hands such amount as may be found due to the trust by Ramakrishna Iyer on a scrutiny of the accounts to be produced by defendants 1 to 4 for the period of management of the trust properties by Ramakrishna Iyer. The Court-fee payable on the plaint will be collected from the defendants 1 to 4. As for the sixth defendant, he will be liable to pay damages at the rate of Rs. 250 per mensem upto the date he vacates item 1 of the plaint schedule. In respect of the payment already made by the sixth defendant to the defendants 1 to 4, the defendants 1 to 4 will be liable to render accounts to the plaintiffs.