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2003 DIGILAW 606 (KER)

Shanmugham v. Vishnu Bharatheeyan

2003-09-22

C.KURIAKOSE, K.S.RADHAKRISHNAN

body2003
Judgment :- Radhakrishnan, J. These appeals arise out of the judgment and decree in O.S. No. 3 of 1996 on the file of the District Court, Thrissur. First defendant is the appellant in A.S.No. 415 of 2000 and the second defendant is the appellant in A.S.No.419 of 2000. 2. Suit was instituted by respondents 1 to 3 in these appeals under Section 26 and Order VII Rule 1 of the Code of Civil Procedure and Section 49 of the Indian Trust Act seeking modification of some of the stipulations in Ext.A1 trust deed giving exclusive rights to the first defendant and to place fetters with regard to the rights of the first defendant to manage the affairs of the properties of the "Sakshal Chathan Seva Madom" and also for a direction to the effect that the first defendant shall function as trustee only along with the first plaintiff and also for other consequential reliefs. 3.We may deal with the facts in detail in the latter part of the judgment, after dealing with some of the legal questions raised for consideration. Admittedly the trust created under Ext.A1 document is a private religious trust. Interlocutory application, I.A.No. 1388 of 1996, was moved by the plaintiffs to appoint a receiver to manage the affairs of the trust pending suit. The court below allowed the said prayer by order dated 7.9.1998 and issued certain directions. Maintainability of the suit was also considered by the court at that time and found that the court has got jurisdiction to proceed with the matter. That order was challenged before this court in C.M.A. No 336 of 1998. Though Division Bench of this court approved the order directed the court below to consider the question of jurisdiction afresh at the final stage of the proceedings. The court below examined the said question and took the view that the suit is not maintainable under Section 49 of the Indian Trust Act. However, the court proceeded to resolve the dispute holding that since District Court is the principal civil court of original jurisdiction in the district it has got jurisdiction to entertain the suit when no prejudice is caused to the parties and disposed of the suit. The court below decreed the suit in part and a preliminary decree was passed by order dated 1.6.2000 with certain directions and those directions are under challenge in these appeals. The court below decreed the suit in part and a preliminary decree was passed by order dated 1.6.2000 with certain directions and those directions are under challenge in these appeals. 4.We may first examine whether suit is maintainable and if it is not maintainable, whether the court below is justified in disposing of the suit as a principal civil court of original jurisdiction? We have already indicated that it is the common case of the parties that the trust created under Ext.A1 is a private religious trust. Counsel appearing for defendants 1 and 2, Sri K.T.Sankaran, submitted that the suit is not maintainable under Section 49 of the Indian Trust Act since private religious trust is excluded from the purview of the said Act. Counsel further submitted that having found so by the court below, court was not justified in entertaining the suit rather than relegating the parties to approach the court of lowest jurisdiction as per Section 15 of the Code of Civil Procedure. Counsel appearing for respondents 1 to 3, plaintiffs in the suit, Sri K.M.C.Kurup, submitted that the suit is perfectly maintainable under Section 49 of the Indian Trust Act and what is excluded from the purview of the Act is private religious endowments and not private religious trust and consequently the suit is maintainable, the District Court being the principal civil court of original jurisdiction in the district can entertain the suit when no prejudice has been caused to the parties. 5.Indian Trust Act, 1882 was enacted to define and amend the law relating to private trusts and trustees. Legislature has introduced saving clause in Section 1 of the Act, which reads as follows: "But nothing herein contained affects the rules of Mohammedan Law as to wakf, or the mutuai relations of the members of an undivided family as determined by any customary or personal law, or applies to public or private religious, or charitable endowments, or to trusts to distribute prizes taken in war among the captors; and nothing in the second chapter of this Act applies to trusts created before the said day. Contention was raised before the court below that the trust covered under Ext.A1 is a private religious trust and that what is excluded from the provisions of the Act is only private religious endowments and not private religious trust and hence suit is maintainable under Section 49 of the Indian Trust Act. Learned District Judge concluded as follows: "A "endowment" is a wider concept than a trust. I have been taken through the commentaries. A mere dedication oral or written is sufficient to constitute and create a religious of charitable endowment. But to constitute a trust in the Strict sense it has to answer the definition under section 3. Endowments are the genus of which trust is a specie. All trusts must necessarily be endowments as there must be an obligation annexed to ownership of property. But all endowments need not be a trust and they would become trust only if the other requirements of Section 3 are satisfied. Suffice to say that "endowment" is a larger concept and Trust in the strict sense falls within the sweep of the concept of "endowment". The Indian Trust Act is applicable only to Trusts. If that be so I am unable to understand why there should be a savings clause to exclude all charitable or religious "endowments" from the applicability of the statute. If the Act is applicable only the specie of trusts in the strict sense what is the meaning of excluding the genus of endowment itself under the savings clause? The court below further concluded as follows: "Considerable amount of time and efforts was devoted by this court and counsel to evolve the principles to identify and exclude the category "private or public religious endowments" from the category of "private trusts". Such efforts proved to be futile as it was found impossible to ascertain and formulate specific principles or rational criteria to identify such "private or public religious endowments" which can be culled out for exclusion from the category of private trusts. The safer and the most prudent course to be followed is to conclude that all religious and charitable trusts whether private or public would not fall within the sweep of the Indian Trusts Act as they would certainly be "religious or charitable endowments". The safer and the most prudent course to be followed is to conclude that all religious and charitable trusts whether private or public would not fall within the sweep of the Indian Trusts Act as they would certainly be "religious or charitable endowments". I agree with the view that the legislature by enacting such a savings clause was only giving expression to its enxiety to leave untouched all religious endowments - whether they be trusts strictly so called or not. I uphold this objection raised by the first defendant and hold that the suit is not maintainable under Sec. 49 of the Indian Trusts Act." The object of the Indian Trust Act is define and amend the law relating to trusts and trustees. Reason for exempting various types of trusts mentioned in the saving clause is the fundamental difference between juridical conceptions on which English law relating to trusts is based and those which formed the foundation of Hindu and Mohammedan system. Reference may be made to the Full Bench decision of the Madras High Court in Sankaranarayana Iyer v. Shri Poovananthaswami Temple Koilpatti (AIR 1949 Madras 721). Judicial Committee of the Privy Council in Vidya Varuthi Thirtha v. Balusami (AIR 1922 P.C. 123) and 32 Cal. 129 held that the trust in the sense in which it is mentioned is unknown to Hindu law. 6. The court below attempted to define the term "endowment" as a wider concept than a trust and took the view that endowment is the genus and trust is the specie. Further it was also pointed out that endowment is a larger concept and trust in the strict sense falls within the sweep of the concept of "endowment". We are of the view the reasoning is unsound. Trust and endowment are not unanimous concepts, they are different nomenclatures. Trust is not required for creating an endowment. All that is necessary is that the religious and charitable purpose is to be clearly spelt out and that the property intended for endowment is to beset apart. 7. The trust and endowment are different concepts altogether. Trust is an obligation annexed to ownership. The word "trust" is defined in Underhill's Law of Trust and Trustees to mean equitable obligation binding a person to deal with properly for which he has control for the benefit of persons for whom he may himself be one. 7. The trust and endowment are different concepts altogether. Trust is an obligation annexed to ownership. The word "trust" is defined in Underhill's Law of Trust and Trustees to mean equitable obligation binding a person to deal with properly for which he has control for the benefit of persons for whom he may himself be one. In order to understand the meaning of the expression "private religious" or "charitable endowment" used in the saving clause of Section 1 of the Indian Trust Act, we may examine the categories excluded from the provisions of Indian Trusts Act through the saving clause. First category is Mohammedan law as to wakf. The word "trust" as such is not used when legislature used the expression Mohammedan law as to wakf. "Wakf" means the permanent dedication by a person professing the Muslim faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable. Wakf is a trust for the purpose of Section 92 of the Code of Civil Procedure. Though the expression "Trust" as such is not used, while dealing with Mohammedan law as to wakf the concept of trust is inbuilt therein. Second category of cases excluded by the saving clause is "mutual relations of an undivided family as determined by customary or personal law. The word "Trust" is not employed by the legislature but the element of Trust is embedded in the relationship between the members of an undivided family. Joint and undivided family is normal condition of Indian society. Senior member of the joint undivided family is entitled to manage the family properties including even charitable properties and is presumed to be the Manager. Manager as the head of the joint family has control over the income and expenditure and the decision is that of a trustee. Though the word "trust" or "trustee" as such is not used in the saving clause when the expression "mutual relations of undivided family as determined by customary or personal law" is used the element of Trust is inbuilt in that category of cases. Next category of cases excluded from the Indian Trust Act is public or private religious or charitable endowments. When the legislature used the expression public or private religious charitable endowment, the word "trust" as such is not used. But the words "religious" or "charitable" are to be noted. Next category of cases excluded from the Indian Trust Act is public or private religious or charitable endowments. When the legislature used the expression public or private religious charitable endowment, the word "trust" as such is not used. But the words "religious" or "charitable" are to be noted. The expression "charity" has not been defined in the Indian Trusts Act. Charity in its legal sense comprises four principal divisions; trusts for relief or poverty; trusts for the advancement of education, trusts for the advancement of religion and trusts for other purposes beneficial to the community. The element of trust is embedded in the word "charity" and various enactments like the Charitable Endowment Act 1890, the Charitable and Religious Trust Act, 1920, the Religious Endowment Act 1863, Travancore Cochin Literary, Scientific and charitable Societies Registration Act etc. Besides the above legislations, Section 18 of the Transfer of property Act says that restrictions in Sections 14, 16 and 17 thereof shall not apply in the case of transfer of property for the benefit of public in the advancement of religion. We are of the view, the words "private religious endowment" used in the saving clause of the Indian Trusts Act have the imprint of a trust without which private religious endowment would not fall in the categories of cases excluded through the saving clause. 8. The word "endowment" defined in the Legal Thesaurus to mean aid, allotment, allowance, protection, assistance, award, benefit, bestowment, contribution, presentation etc. Endowment is also defined in Aiyar's Judicial Dictionary to mean any property kept or money invested with the intention of any particular service or particular charity connected therewith and includes temples and any offerings made to the idols therein. "Endowment" is defined is Black's Law Dictionary, seventh edition, to mean 'A gift of money or property to an institution (such as a University) for a specific purpose, esp. One in which the principal is kept intact indefinitely and only the interest income from that principal is used. It is only a dedication of properties to a public or private religious trust. The reasoning that "endowment" is the genus and "trust" is specie, as we have already said, is unsound. One in which the principal is kept intact indefinitely and only the interest income from that principal is used. It is only a dedication of properties to a public or private religious trust. The reasoning that "endowment" is the genus and "trust" is specie, as we have already said, is unsound. The apex court in Pratapsinhji N. Desai v. Deputy Charity Commissioner (AIR 1987 S.C. 2064) held that endowment is dedication of property for purpose of religion or charity having both the subject and object certain and capable of assessment. We therefore hold that the expression "private religious endowment" used in the saving clause has got the imprint of a Trust and hence a private religious trust and the properties endowed are dedicated to private Religious Trust. Since the Trust created by Ext. A1 is private religious trust it falls outside the purview of the Indian Trusts Act. 9. The court below had directed a copy of the judgment be given to the Advocate General for consideration whether the Trust constituted under Ext.A1 is a public religious Trust or endowment or whether the legislative powers of the State Ought to be invoked to control this or/and similar religious institutions and to explore the possibility of taking appropriate action under Section 92 of the C.P.C. we are of the view, the above mentioned directions are unnecessary and unwarranted. We have found that the Trust created under Ext. A1 is a private religious trust and therefore the application of Section 92 C.P.C. does not arise. The court below has indicated that it had not found any incidents of private religious trust in Ext.A1. In our view the said reasoning is faulty and would be clear on a reading of the recitals in Ext. A1. Counsel on either side are also in agreement that the Trust created under Ext.A1 is a private religious Trust. We may extract relevant portion of the trust deed. The religious purpose has been clearly spelt out in the document. The apex court in Radhakanta Deb v. The Commissioner of Hindu Religions Endowments (AIR 1981 S.C. 798) held that there can be religious trust of a private character under the Hindu Law which is not possible in English law. We may extract relevant portion of the trust deed. The religious purpose has been clearly spelt out in the document. The apex court in Radhakanta Deb v. The Commissioner of Hindu Religions Endowments (AIR 1981 S.C. 798) held that there can be religious trust of a private character under the Hindu Law which is not possible in English law. It is well settled that under the Hindu law it is not only permissible but also very common to have private endowments which though are meant for charitable purposes yet the dominant intention of the founder is to install a family deity in the temple and worship the same in order to effectuate the spiritual benefit to the family of the founder and his descendants and to perpetuate the memory of the founder. The apex court also held that the question as to whether religious endowment is of a private nature or of a public nature has to be decided with reference to the facts proved in each case and it is difficult to lay down any test or tests which may be of universal application. From the recitals of Ext. A1 it can be seen that the trust created by Ext. A1 is a private religious trust and the properties are that of the trust. Therefore the direction of the court below that appropriate action is necessary under section 92 C.P.C. is illegal, unwarranted and hereby set aside. 10. In the instant case, suit was filed under Section 49 of the Indian Trusts Act. Since we have held the private religious trust created by Ext. A1 falls outside the purview of the Indian Trusts Act, the question of application of Section 49 does not arise. We have already pointed out that the court below though found that section 49 is not applicable exercised its jurisdiction since that court is the principal civil court of original jurisdiction in the district. Contention was raised that the court below was not justified in entertaining the suit as principal court of original jurisdiction since Section 15 of the Code of Civil Procedure provides that every suit shall be instituted in the court of the lowest grade competent to try it. Contention was raised that the court below was not justified in entertaining the suit as principal court of original jurisdiction since Section 15 of the Code of Civil Procedure provides that every suit shall be instituted in the court of the lowest grade competent to try it. Normally the court below after having found that the suit cannot be entertained under Section 49 of the Indian Trusts Act since the trust being a private religious trust could have returned the plaint for proper presentation in appropriate court, but in case where no prejudice has been caused to either side in entertaining the suit the question is whether the court is justified in entertaining the suit. In a case where no prejudice is caused to either side if the court tries the suit instead of returning the plaint under Order VII Rule 10 a decree passed in such a case, in our view, is not a nullity but only na irregularity not affecting the merits of the case or the jurisdiction of the court within the meaning of Section 99 C.P.C. In Nidhi Lal v. Mahazar Husain and another (1885) 7 All.230) and Matra Mondal v. Hari Mohum Mullick (1918) 17 Cal.155) the courts held that Section 15 of C.P.C. is a rule of procedure, not of jurisdiction, and while it lays down that a suit shall be instituted in the court of the lowest grade, it does not oust the jurisdiction of any court of a higher grade. 11. In Comunidade of Ponchovadi v. Silvia Ribeiro (AIR 1971 Goa 34) dealing with Section 15, the court held that where the superior court has commenced the trial and recorded some evidence without returning the plaint to the Court of lower grade holding that question of jurisdiction depends upon the decision about the proper valuation of the suit and as no prejudice is caused to any party, thereby, the revision petition against such decision of the superior court is not maintainable. In this connection we may refer to the decision of the apex court in Baselius Mar Thoma Mathews I and others v. Paulose mar Athanasius and others (1980 K.L.T.1). We have perused the contentions on either side with reference to the records and are of the view that no prejudice has been caused to either of the parties in entertaining the suit by the principal court of original jurisdiction. We have perused the contentions on either side with reference to the records and are of the view that no prejudice has been caused to either of the parties in entertaining the suit by the principal court of original jurisdiction. We are of the view, interest of justice demands early disposal of the suit and therefore we find no illegality in the principal court of original jurisdiction in entertaining the suit. 12. Plaintiffs 1,3 and 4 and defendant No.1 are the children of one Kanadi Krishnan. Second plaintiff is his wife. Eleventh defendant is the wife of the first plaintiff and defendants 5 to 8 are their children. Twelfth defendant is the wife of the third plaintiff and defendants. Deceased Kanadi Krishnan had two other children. After the death of Kanandi Krishnan, his legal heirs, plaintiffs 1 to 4 and first defendant executed Ext. A1 trust deed on 13.12.1971 and registered it on 16.12.1971 followed by Ext. A2 partition deed executed on 14.12.1971 and registered on 16.12.1971. By virtue of Ext.A1 executants had constituted a trust by name "Sakshai Chathan Seva Madom Trust". The main object of the formation of the trust is for the management of Chathan temple situated in the property. Those properties belonging to the executants were transferred in favour of the Trust. There was a stipulation in the deed that till the death of the first defendant, he shall function as the sole trustee. Stipulations are also made as to who should be the trustees after the lifetime of first defendant. Trustees have no power of alienation. A schedule properties belong to the Trust. Plaintiff complained that first defendant is mismanaging the Trust properties and also diverting the amount received by way of offerings from the devotees for his personal advantage. First defendant has acquired properties in his name and in the name of his wife and children. Further plaintiff also stated that first defendant executed Ext. A3 deed and constituted a society by name "Kanadi Madom". Idea was to ciphon off the funds of the Trust. Further it is also stated in the name of "Kanadi Madom" first defendant used to make advertisements whereby receiving amounts from the devotees. They also raised various instances of mismanagement of the Trust and improper performance of religious rites. A3 deed and constituted a society by name "Kanadi Madom". Idea was to ciphon off the funds of the Trust. Further it is also stated in the name of "Kanadi Madom" first defendant used to make advertisements whereby receiving amounts from the devotees. They also raised various instances of mismanagement of the Trust and improper performance of religious rites. They pointed out B schedule properties were acquired in the name of defendants 1 to 4 using amounts which legitimately belong to the Trust. It was contended that unless and until absolute powers conferred on the first defendant are curtailed he would mismanage the affairs of the Trust for personal benefits and it would cause loss to the trustees and to the Trust. Plaintiffs therefore prayed that the stipulations in Ext. A1 trust deed empowering first defendant alone to manage the properties be modified and power be conferred on the first defendant also. Plaintiffs wanted first plaintiff and first defendant to be joint trustees for managing the affairs of the temple and trust properties. They also sought declaration that B schedule properties be declared as trust properties. 13. Defendants 1 to 4 entered appearance. Other defendants supported the plaintiffs. Execution of Ext. A1 trust deed is admitted. The allegation that first defendant is guilty of mismanagement and breach of trust was denied. All religious rites are being performed and the offerings received are being utilized for managing the affairs of the Trust and temple properties. They also stated that stipulations made in the trust deed are not liable to be altered since all the trustees had agreed to the stipulations contained whereby first defendant could manage the properties during his lifetime and sufficient safeguards have bee made for managing the properties after his death. Further it was stated the plaintiffs' attempt is only to take away money of the Trust and that the plaintiff has also established a rival temple and therefore there is conflict of interest. He has been canvassing and soliciting devotees to his temple. He cannot function as joint trustee due to his conflict of interest which would be against the terms of Ext.A1 trust deed. 14. We have examined the terms and conditions of Ext. A1 trust deed. Entire trustees had reposed their confidence on the first defendant. He has been canvassing and soliciting devotees to his temple. He cannot function as joint trustee due to his conflict of interest which would be against the terms of Ext.A1 trust deed. 14. We have examined the terms and conditions of Ext. A1 trust deed. Entire trustees had reposed their confidence on the first defendant. Contention was raised by the first defendant that having executed Ext.A1 trust deed first defendant could continue as trustee till his lifetime unless and until the terms of the deed are changed on consent of all of the trustees. Facts would indicate except first defendant, all of them agreed for a change and suggested that first defendant alone shall not be entrusted with the management of the trust and its properties but only along with another trustee as joint trustee. Under the Indian Trusts Act, trust deed can be revoked only when all the beneficiaries jointly consent. Contention was raised unless and until first defendant also agrees to change of the terms of the conditions of the trust deed, no change can be effected since Ext.A1 trust deed is a registered trust deed agreed to by all the parties. We find it difficult to accept this contention. In a given case if it is established that a person in management of the trust acts against the terms of the deed or otherwise acts against the interest of the trust and commits mismanagement of the affairs of the trust and commits defalcation etc. it is always open to other beneficiaries to lay down sufficient safeguards in the interest of the Trust. Trustee is a watch dog on behalf of those persons for whom Trust is created. When there is a Trust for the benefit of several persons and one of them is in possession of the trust properties by terms of the trust deed or otherwise, it is for the trustees to see that he does not act contrary to the interest of the trustees and interest of the Trust. Trustee under the trust deed owes a duty to beneficiaries to keep correct account relating to the Trust properties. Beneficiaries who are interested in the trust property have a corresponding right to call for the accounts and inspect the same. Trustee being in a fiduciary capacity is bound to keep his private properties away from the Trust property and also account for the trust money. Beneficiaries who are interested in the trust property have a corresponding right to call for the accounts and inspect the same. Trustee being in a fiduciary capacity is bound to keep his private properties away from the Trust property and also account for the trust money. He cannot mix up his private properties with trust properties. In a given case if the beneficiaries could establish that the person case if the beneficiaries could establish that the person in management of the Trust is not property accounting and mismanaging the trust properties and commits breach of trust, it is always open to them to make sufficient safeguards and in a given case even remove the trustees from the trusteeship. In the instant case, except first defendant all of them joined together and wanted another trustee also to function along with the first defendant. In other words, they wanted to change stipulation in the trust deed that the first defendant should continue as trustee for managing the trust properties during his life time. 15. In the instant case, it has come out in evidence that first defendant is not maintaining the accounts with respect to the Trust. He has not disclosed the accounts to show the income and expenditure with regard to the Trust. Facts would indicate that first defendant has not been maintaining accounts of the Trust. First defendant tried to explain away the said fact by stating that the accounts have been taken away by the plaintiffs. It has also come out in evidence that no bank account has been maintained in the name of the Trust. Instead he has formed a Society by Ext.A3 deed styled as "Kanadi Madom". First defendant after constituting the said Society by Ext. A3 was making advertisements in the name of Kanadi Madom canvassing the devotees of the temple. The court below passed an order on I.A. No. 1388 of 1996 and approved the quarterly statement of income and expenditure. Accounts were not properly maintained or produced. D.W.1 also admitted that he had spent about Rs.40 lakhs for the improvement of the Trust for which also no account is maintained. In his deposition he stated that he had spent those amounts from out of the funds of the Trust as well as his own income. It is well known that the trustee cannot mix up the income of the Trust and his personal income. In his deposition he stated that he had spent those amounts from out of the funds of the Trust as well as his own income. It is well known that the trustee cannot mix up the income of the Trust and his personal income. Evidence would indicate that he has been collecting large amounts from devotees and the public at large without giving printed receipts. Exts. A42 and A43 would show that amounts have been received without any proper account by the first defendant as trustee. Facts would indicate that this gross mismanagement and breach of trust in the affairs of the Trust is done by the first defendant. It is well settled that the trustee is bound to maintain clear and accurate accounts of the trust property at all reasonable times and at the request of a beneficiary give him full and accurate information as to the amount and state of the trust property. Trustee being in fiduciary capacity is duty bound to keep away his private property and accounts away from the property and accounts of the trust. If the trustee mixes up his private property with the property of the Trust, he is liable for breach of trust. In this case since first defendant has not maintained correct accounts with regard to the Trust property inference could be drawn against him. There is satisfactory evidence in this case to show the first defendant is not maintaining accounts and is mismanaging the affairs of the trust properties. Therefore, claim of the plaintiffs that appropriate restrictions have to be made in the management of the properties and affairs of the trust is to be upheld. 16. Plaintiffs' prayer is to appoint first defendant and first plaintiff as joint trustee to manage the properties covered by Ext. A1 trust deed. Facts would indicate that first plaintiff is also managing another temple which is not quite far away from the temple run by the Trust. Allegations are also there that first plaintiff is attempting to divert the devotees of the temple covered by Ext. A1. The court below therefore appointed an Official Receiver attached to the court as Managing Trustee and allowed first plaintiff and first defendant to function as joint trustees. The Official Receiver took charge and is functioning as receiver. Allegations are also there that first plaintiff is attempting to divert the devotees of the temple covered by Ext. A1. The court below therefore appointed an Official Receiver attached to the court as Managing Trustee and allowed first plaintiff and first defendant to function as joint trustees. The Official Receiver took charge and is functioning as receiver. The advocate later ceased to be the official receiver and prayed for direction to relieve him from the receivership and to discharge him. Counsel appearing for the plaintiffs opposed the said request and submitted that the shall not be discharged and that he may be declared as functus officio. Counsel submitted that the question of discharge could be considered by the court below and appropriate direction may be given to that effect. 17. Counsel for the plaintiff explained the circumstances under which the first plaintiff had established the temple and he has also denied the allegation that the first plaintiff is diverting the devotees to the temple covered by Ext. A1. We have examined the circumstances under which the other temple has been established. From the facts and circumstances of the case we find it appropriate that first plaintiff should keep away from the management of the temple and the properties covered by Ext. A1 trust deed. We are not examining the correctness or otherwise of the allegations raised against him and do not propose to pronounce upon the merits of those allegations since we are inclined to direct third plaintiff to be the joint trustee along with first defendant. We are convinced that it is not in the best interest of the temple that its properties be under an Advocate Receiver. First defendant and third plaintiff shall therefore function as joint trustees and manage the properties of the trust as per Ext. A1 trust deed. The court below would also examine the request of the receiver to discharge of his duties in accordance with law. However, he is rendered functus officio from the date of this judgment. 18. Before the court below counter claim was raised by the first defendant. No discussion has been made on the counter claim by the court below. Since we have already examined the rival contentions and also the oral and documentary evidence no further directions are necessary and no further relief is to be granted on the counter claim. 18. Before the court below counter claim was raised by the first defendant. No discussion has been made on the counter claim by the court below. Since we have already examined the rival contentions and also the oral and documentary evidence no further directions are necessary and no further relief is to be granted on the counter claim. Consequently preliminary decree is passed on the following terms. (a) A scheme be framed for proper management and administration of the trust under Ext.A1 trust deed. Third plaintiff and first defendant would function as joint trustees who would manage the affairs of the trust till a scheme is framed. They would submit a draft scheme before the court below for approval within two months from today. (b) The court below can make appropriate provisions in the Scheme for the joint trusteeship for the temple and the properties covered by Ext. A1. To that extent the terms in Ext. A1 that first defendant alone would function as a trustee would stand modified. (c) Trustees will furnish monthly reports on the first of every month before the court below. They will open a current account in a nationalized Bank and will account for all the receipts. Proper statement of accounts would also be maintained by them with regard to the receipts/ and expenditure. (d) The statement of accounts submitted by the joint trustees would be examined by the court and ascertain whether the trust funds have been diverted by the first defendant for his personal gains and whether he had acquired any property with the trust funds and appropriate orders would be passed. (e) Until a scheme is framed by the court below, trustees shall not part with any property. So also first defendant shall not part with the properties covered by Exts. A5 to A12, A15 and A22. (f) The receiver is declared functus officio from today and his request for discharge would be considered by the court below on his furnishing the statement of accounts. Counsel appearing for the receiver submitted that he has not claimed any remuneration and does not propose to claim any remuneration. Considering the entire facts and circumstances of the case, we feel it would be appropriate that a consolidated amount of Rs.20,000/- be granted for the services rendered by the receiver. The amount would be paid by the joint trustee from the account of the Trust. Considering the entire facts and circumstances of the case, we feel it would be appropriate that a consolidated amount of Rs.20,000/- be granted for the services rendered by the receiver. The amount would be paid by the joint trustee from the account of the Trust. The court below would pass final decree within six months from the date of receipt of a copy of this judgment. The appeals and cross objection are disposed of accordingly.