Neelakantan Namboodiri v. Narayanan Nair — 1965 DIGILAW 166 (KER)

JUDGMENT M. Madhavan Nair, J. 1. This appeal is by the plaintiffs in O. S. No. 28 of 1955 on the file of the Subordinate Judge, Ottapalam. They are the hereditary trustees of two temples, Pachayil Devaswom and Ayyampully Devaswom. Under the Madras Hindu Religious Endowments Act, II of 1927, a scheme was framed in respect of both the temples on April 14, 1948, and the 1st defendant was appointed the Executive Officer thereof. The appellants filed O. S. No. 2 of 1948 to set aside the scheme, which was allowed on September, 8, 1949. Subsequently, the Deputy Commissioner framed another scheme for the Pachayil Devaswom alone on May 5, 1950, and again appointed the 1st defendant the Executive Officer by an order dated August 12, 1950. The 1st defendant managed to get possession of the temple and its properties with police aid on January 1, 1952, as per an order of the Sub Divisional Magistrate, Malapuram. That order of the Sub Divisional Magistrate was quashed and the motion of the 1st defendant was directed to be heard afresh by order of the Madras High Court in Write Petition No. 108 of 1952. The Sub Divisional Magistrate on December 11, 1953, dismissed the motion and possession was restored to the appellants on December 9, 1953. The appellants had also instituted another suit, O. S. No. 17 of 1952, to set aside the second scheme and that was decreed with costs on October 22, 1956. Thus the 1st defendant had been in forcible possession and management of the Pachayil Temple and its properties in the period between January 1, 1952 and December 9, 1953. During that period he managed to sell 305 trees, fruit trees and timber trees, to his sister inlaw's husband to the detriment of the Devaswom estate. In this suit the appellants have claimed settlement of accounts of the 1st defendant's management of the Devaswom, estimating the loss caused to it by the sale of trees at Rs. 8000/-. The 1st defendant contended that the suit was barred by limitation under Art.36 of the Limitation Act, 1908, that he was only carrying out the orders of his superior, the Commissioner of the Hindu Religious Endowments and that he was not personally answerable to the claims in the suit. The Courts below concurred to dismiss the suit. Hence this second appeal. 2. The Courts below concurred to dismiss the suit. Hence this second appeal. 2. It is not disputed that in the period January 1, 1952, to December 9, 1953, the 1st defendant had been in possession and management of the public trust, the Pachayil Devaswom. The order of the Madras High Court in Writ Petition No. 108 of 1952 and the decree of the Subordinate Judge in O. S. No. 17 of 1952 show that the scheme under which the 1st defendant was appointed Executive Officer of the Devaswom, was void in law. The 1st defendant in the period of his possession and management of the Devaswom was in the position of a trustee de son tort. The 1st defendant claims to have advanced Rs. 2000 out of his pocket for expenses of the temple and to have reimbursed himself out of the proceeds of the sale of trees mentioned above. The books of account produced by him show that he was attending to the services of the temple and had been receiving rents from its tenants and spending the same for the temple. It is therefore clear that he was in management of the Devaswom and its estate during the period. In Soar v. Ashwell (1893 (2) QB 390) Lord Esher M. R. Said: "...... the cases seem to me to decide that where a person has assumed, either with or without consent, to act as trustee of money or other property, i. e., to act in a fiduciary relation with regard to it, and has in consequence been in possession of or has exercised command or control over such money or property, a Court of Equity will impose upon him all the liabilities of an express trustee. .......... The principal liability of such a trustee is that he must discharge himself by accounting to his cestui que trusts for all such money or property without regard to lapse of time." And this dictum has been cited with approval in Palaniandi Gramani Manickammal v. Murgugappa Gramani (157 IC 181) by a Bench of the Madras High Court within whose jurisdiction the Devaswom and its properties were at the relevant time. The 1st defendant was therefore bound to account for his management of the Devaswom and its properties as if he was an express trustee thereof. The 1st defendant was therefore bound to account for his management of the Devaswom and its properties as if he was an express trustee thereof. As the scheme, and the appointment of the 1st defendant as Executive Officer thereunder, have been held void by the Madras High Court in W. P. No. 108 of 1952 and also by the Subordinate Judge by the decree in O. S. No. 17 of 1952, his meddling with the trust has to be found wrongful and therefore the accounting has to be to the appellants who are the lawful trustees thereof. The Courts below have exempted him from liability on the ground that the person liable was the one who appointed him Executive Officer and put him in management of the Devaswom. When a person intermeddles with the properties of another he has to be held to do so at his risk; and the fact that he had been authorised to do so by another person who had no authority thereto would not exempt him from liability for his acts. 3. In Stephens v. Elwall (105 English Reports 830) Lord Ellenborough C. J., declared the law thus: ".......... a person is guilty of a conversion who intermeddles with my property and disposes of it, and it is no answer that he acted under authority from another, who had himself no authority to dispose of it. And the Court is governed by the principle of law, and not by the hardship of any particular case." The liability to account cannot be escaped by the 1st defendant 'on the ground that he was appointed to manage the temple and its properties by the Commissioner, and therefore the liability has to be fastened on the Commissioner only. 4. Counsel contended that even if liability be found, the suit is barred by limitation under Art.36 of the Limitation Act, 1908. That contention seems to have prevailed with the Courts below. Art.36 deals with actions on tort, misfeasance, malfeasance and nonfeasance. The 1st defendant's liability to account does not arise in tort but in breach of trust. A breach of trust is no tort. See Rustomji on Limitation, pages 401 and 403 and the cases cited there. Art.36 Limitation Act, is therefore inapplicable to the instant case. 5. Art.36 deals with actions on tort, misfeasance, malfeasance and nonfeasance. The 1st defendant's liability to account does not arise in tort but in breach of trust. A breach of trust is no tort. See Rustomji on Limitation, pages 401 and 403 and the cases cited there. Art.36 Limitation Act, is therefore inapplicable to the instant case. 5. Further, S.10 of the Indian Limitation Act 1908, after its amendment in 1929, reads: "Notwithstanding anything hereinbefore contained, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time. For the purposes of this section any property comprised in a Hindu, Muhammadan or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose, and the manager of any such property shall be deemed to be the trustee thereof." The 'manager' in the latter paragraph of the section is not the trustee, but one to be "deemed to be a trustee". Anyone who menages a Hindu Religious endowment would be a trustee for purposes of S.10 of the Limitation Act. It then follows that there can be no period of limitation to call a person in management of a Devaswom and its properties, as the 1st defendant was, to account. 6. Counsel for the respondent 1st defendant pointed out that on the sum claimed as damages for waste committed on the Devaswom properties by the 1st defendant court fee has been paid in the Courts below, but no such court fee is paid on that sum in this second appeal, and urged that therefore no inquiry may be directed regarding the sale of trees in further stages of this suit. I do not think the non payment of court fee in this Court on the particular item of account claimed will exempt the 1st defendant from his liability to account. The settlement of accounts would involve all acts done by the 1st defendant in the course of management of the Devaswom and its properties. I do not think the non payment of court fee in this Court on the particular item of account claimed will exempt the 1st defendant from his liability to account. The settlement of accounts would involve all acts done by the 1st defendant in the course of management of the Devaswom and its properties. His sale of trees that stood on the Devaswom properties was admittedly an act done by him in the course of his management of the Devaswom and must therefore be an item for accounting. In what sum he has to account for it is a matter that has to be settled hereafter. If he is able to show that his act was fully justified by legal necessities of the Devaswom and his act was what a prudent man would have done in regard to his own estate and that all the amount he had received by the sale had been expended properly for purposes of the Devaswom, no liability will be found on him. On the other hand, if it is proved that the act was a sharp practice or one of misfeasence on the part of the trustee de son tort he may be liable to account to the extent of loss suffered by the estate on account of his wanton act. B. K. Mukherjea in his treatise. The Hindu Law of Religious and Charitable Trust, 2nd edn., p. 227, dealing with the duties of a shebait observes that he is "bound to use such diligence and care in the management of the Debutter estate as a man of ordinary prudence and vigilance would use in the management of his own affairs. If, however, by reason of his negligence or default in proceeding against the debtor in proper time a loss occurs to the Debutter estate, he will be found to make good the loss (Thackersay v. Hurbhum-8 Bom. 432 at 465)". A fortiori it follows that if the manager or trustee de son tort commits wilful waste in the Devaswom estate he has to answer for the loss caused thereby to the estate. The question has not been gone into by the Court below as it found the 1st defendant not liable to account at all. 432 at 465)". A fortiori it follows that if the manager or trustee de son tort commits wilful waste in the Devaswom estate he has to answer for the loss caused thereby to the estate. The question has not been gone into by the Court below as it found the 1st defendant not liable to account at all. In the circumstances, the decree of the Courts below has to be reversed and the 1st defendant has to be directed to account to the plaintiffs for all the acts he has done during the period of his management of the Pachayil Devaswom. Both parties will be given an opportunity to adduce additional evidence, if any, they desire to adduce, subject to the condition that the suit will have to be closed within six months of the receipt of the records in the Subordinate Judge's Court. The Subordinate Judge will post the case for day to day trial, if found necessary, after three months of the receipt of the records in his Court, and will see that the case is closed within the prescribed time. The costs of this second appeal as also of the first appeal will be costs in the cause and will abide the result of the suit in the revised disposal by the Subordinate Judge.