Virasami Nayudu vs Subba Rau And Ors. on 21 August, 1882

Madras High Court
Virasami Nayudu vs Subba Rau And Ors. on 21 August, 1882
Equivalent citations: (1883) ILR 6 Mad 54
Bench: Innes, Tarrant


1. The respondents in this suit are the dharmakartas of the patlisuraswami temple of Tirupapuliyur, and the temple committee having the superintendence of such temple, and the suit was brought to recover from the appellant the temple and certain moveable and immoveable property appertaining thereto, together of the value of Rs. 11,611-12-7, of which the appellant was said to be in wrongful possession the appellant having in January 1877 been properly dismissed by the temple committee from the office of dharmakarta of the said temple, to which he was originally appointed by the Collector in 1849.

2. Appellant filed a written statement to the effect that the suit was not within the jurisdiction of the Court of the Subordinate Judge; that respondents had no locus standi to maintain the suit; that the respondents professing to represent the temple committee under Act XX of 1863 did not really do so; that the temple came under Section 4 and not Section 3 of Act XX of 1863; that appellant had a hereditary right to the dharmakartaship of the temple, and therefore the temple committee had no right of control over the same; that there was no good and sufficient cause for the dismissal of the appellant from the dharmakartaship of the temple; that, if any, the relief to which the respondents-were entitled was merely to have an account; and that the suit was barred by limitation. Besides the appellant, there are two other defendants to the suit, who were joined with him as being members of the temple committee who-were not willing to join the respondents in bringing the suit.

3. The issues wore substantially the pleas set up by the appellant in his written statement; and the Lower Court held that it had jurisdiction; that respondents had a right to bring the suit; that the temple came under Section 3, and not Section 4, of Act XX of 1863; that the dismissal of the appellant was just and propor; that the appellant. was bound to account to the respondents for the moneys asked for; and that the suit was not barred by limitation; and. the Court made a decree directing the appellant to make over to the respondents the temple and the immoveable property sued for, and also certain moveable property according to a list mentioned in the decree, together with the marly cash asked for in the plaint, interest, and costs, and it is against this decree that the appellant now appeals on the grounds–

(1) that the Subordinate Judge had no jurisdiction to entertain the suit ;

(2) that the respondonts are not property appointed members of the temple committee within the meaning of Act XX of 1863, nor qualified to be members of that committee ;

(3) that the Subordinate Judge was wrong in holding that the temple cornea under Section 3 and not Section 4 of Act XX of 1863 ;

(4) that certain exhibits were improperly held to be inadmissible in evidence;:

(5) that even if the respondents had power to dismiss the appellant, and if otherwise they exercised it lawfully, the dismissal was made without good and reasonable cause;

(6) the Subordinate Judge was wrong in fact and in law in finding that the appellant was bound to account to the respondents for the moneys asked for in their plaint;

(7) the respondents were at the most entitled only to have an account rendered to them by the appellant; and lastly

(8) that so far as the moveables were concerned, the suit was barred by limitation.

4. In support of his contention that the Subordinate Judge had no jurisdiction, the learned Counsel for the appellant urges that the suit was one of the nature contemplated by Act XX of 1863, and should, therefore, have been brought in the District Court. The case of Sabapathi v. Subraya I.L.R. 2, Mad. however appears to us to be an authority to the contrary, it having been held therein that the special sections of the Act as to suits deal only with persons for acts done by them while filling the office of trustee, manager, superintendent, or committee. This suit was instituted not for any of the purposes mentioned in Section 14 of Act XX of 1863, but for the recovery of temple property improperly withheld by the appellant after he had been properly removed from the office of dharmakarta, and it appears to us perfectly clear that the Lower Court had jurisdiction to entertain the suit.

5. With regard to the second objection, that the committee is not a proper committee, it has been argued that the original committee was not properly appointed, and that the death., vacancies which have from time to time happened herein have not been properly filled up. The only evidence on this point to which our attention has been directed is that of certain documents relating to the various proceedings connected with the appointment of the original committee, and we do not think that anything contained in any of those documents shows any such irregularity as would vitiate the appointment of the original committee, especially when we find, as is the case, that from their appointment in 1864 up to 1876, when differences arose between the appellant and the committee, the appellant in no way disputed the validity of such appointment, but, on the contrary, acknowledged and acquiesced in the same by rendering accounts to thorn, by taking their order as to the disposal of moneys awarded to the temple for compensation for temple lands taken up for railway purposes, and by submitting generally to their authority, interference, and supervision. No special objection to the appointment of any particular member, either original or substituted, is attempted to be shown.

6. The next objection taken was that the appellant being hereditary dharmakarta, the temple came under Section 4 and not Section 3 of Act XX of 1863, and therefore the committee had no right of interference in the management thereof. Taken at its highest value, all that the appellant has attempted to show by his evidence is that he represents one Kumarappa Nayakan who was appointed dharmakarta by Mr. Fallowfield, a former Collector; that his–Kumarappa Nayakan’s–son succeeded him; that in 1842 one Balakrishna Nayakan, said to be a descendant of Kumarappa Nayakan was appointed dharmakarta by the then Collector; and that upon his death in 1849 the appellant, a minor, as his adopted son, was appointed by the Collector of that time in his place, his uncle, one Seshachala Nayakan, being apointed as his representative until he attained his majority. No claim to hereditary dharmakartaship was ever set up by the appellant until after the committee, in November 1876, took steps to join with the appellant three other persons as co-dharmakartas, and his only explanation of his not having previously asserted his right to hereditary dharmakartaship, and of his having for such a lengthened period submitted to the authority of the committee is, that he was not aware of his right, and only became acquainted with the same through certain residents of the town informing him when the three co-dharmakartas were joined with him of his–appellant’s–Adinam (Government; property.–Wilsoji) right, and of the improper interference of the committee. We agree with the Lower Court that the appellant has failed to show that he is a hereditary dharmakarta, or that the temple falls under Section 4 of Act XX of 1863. As to the objection that two documents VI and VII were improperly refused admission as evidence by the Lower Court, it is sufficient to say that we have fully considered the bearing of those documents upon the appellant’s case before corning to a decision thereon.

7. The appellant next contends that the dismissal, if otherwise lawful, was without good and reasonable cause; and it is further contended that the dismissal should have been the act of the majority of the whole of the committee, and not the mere majority of a portion of such committee. We cannot agree with this latter contention. The dismissal was the act of a duly convened meeting of eleven members of the temple committee. The proceedings of the committee were published in the District Gazette, and we can find no evidence of any dissatisfaction over having been expressed as to the mode of convening the meeting, as to the proceedings thereat, or otherwise in connection therewith, beyond the general allegations and objections of the appellant; nor do we see anything unreasonable upon the part of a large committee like that connected with this case, consisting of thirty members, passing a rule, as it is in evidence has been done, for the purpose of transacting business, that eleven of their number shall form a quorum. The appellant was dismissed from his office of dharmakarta, 1st, for neglect of duty whereby his uncle and agent was enabled to embezzle the funds of the institution to the extent of about Rs. 1,000; 2nd, for general insubordination, in utterly refusing to join with him in conducting the temple affairs three persons whom the committee had joined with him as co-dharmakartas to assist him in his duties as dharmakarta, it being shown that his time was fully occupied with his public duties as a Government official; and, 3rdly, in setting up his title to the hereditary dharmakartaship for the purpose of obstructing the committee. As an additional reason showing the propriety of the appellant’s dismissal, although it was not given at the time as a reason for that dismissal, the Lower Court finds that the appellant concocted evidence in support of his claim to hereditary dharmakartaship. Upon the evidence, we think that the Lower Court was right in holding that the dismissal of the appellant was just and proper.

8. Appellant’s counsel further contends that all that can be claimed from the appellant in this suit is, that he shall render to the plaintiffs an account. We cannot, however, agree with him. The appellant has been properly dismissed, and he is shown to be in possession of certain specific items of property and moneys belonging to the temple, and that property and money, unless he can in some other way discharge himself from, he is bound to deliver over to the respondents as representing, with the other two defendants, the committee and the present dharmakartas of the temple. The appellant has endeavoured to discharge himself as to certain sums of money admitted to have come to his hands, but the Lower Court has found that he has failed to do so, and we agree with the Lower Court. Moreover the moneys, even according to appellant’s own showing, were paid away by him after his dismissal from his dharmakartaship.

9. This brings us to the last objection raised to the decree, viz., that the suit so far as it relates to the moveable property is barred by limitation. Appellant’s counsel argues that Article 89 of Schedule 2 of the Limitation Act is the section applicable to this part of the case. Respondent’s counsel contends that Section 10 of the Limitation Act is a complete answer to this objection, and appellant’s counsel replies that his view of the limitation point is supported by Story’s Equity Jurisprudence, para. 1520, by Rakhaldas Madak v. Madhusudan Madak 3 B.L.R. 409 and by Pavam Singh v. Lalji Mal I.L.R. 1 All. 403. We, however, do not consider that the authorities quoted by the counsel for the appellant support his contention. Where favourable to his argument, they all appear to us to proceed upon the assumption that at some period there has been a disavowal of the trust, and a setting up of an independent adverse title in the alleged trustee from which limitation runs. Here nothing of the kind has been done. Appellant undoubtedly held the property claimed as a trustee, and in such a case under Section 10 of the Limitation Act no length of time will bar a suit. In Pavam Singh v. Lalji Mal I.L.R. 1 All. 403 the appellant was not a trustee in the sense of the Limitation Act, for “Trustee” by Section 3 of that Act does not include a Benamidar. In Rakhaldas Madak v. Madhusudan Madak 3 B.L.R. 409 if the trust existed at all, it was a trust to hold the property, which was land, and restore it to the plaintiff on. demand after his return. There could, therefore, be no starting point for limitation until plaintiff’s return, and he brought the suit within twelve years after his return. The question of limitation did not therefore arise in that case.

10. We dismiss the appeal with costs.

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