Judgement

Appeal (No. 24 of 1919) from a judgment and decree of the High Court (March 6, 1917) varying a decree of the District Judge of Chingleput.

The suit was instituted by the appellant and another under s. 92 of the Code of Civil Procedure against the respondent, who was hereditary dharmakarta of a Hindu temple at Madavilagam in the neighbourhood of the City of Madras. The plaintiffs prayed for accounts, and for the defendants removal from his office, on the grounds that he and his ancestors had converted to their own use certain lands forming part of the endowment, that he had failed to keep proper accounts, and that he had mala fide altered the ceremonies of the temple. The respondent, by his written statement, claimed part of the lands referred to, and denied the other allegations.

The facts are fully stated in the judgment of their Lordships.

The District Judge, who tried the case, found that the title of the temple to the lands in question was not established, the records filed raising only a suspicion that the lands had originally belonged to the temple. But he found that the respondent had fabricated accounts for the purpose of the suit, and that his conduct as to alteration of the temple ceremonies was not bona fide, but was probably due to spite against the appellant and his friends. For these reasons he ordered that the respondent should be removed from being trustee, and that a scheme should be submitted.

An appeal to the High Court, and cross-objections, were heard by Sir John Walli’s C.J. and Seshagiri Ayyar J. who made a declaration that four of the properties belonged to the temple ; they agreed with the finding of the District Judge that the accounts put forward at the trial had been concocted by the defendant for the purpose of the suit. The learned judges were of opinion that the evidence merely raised a suspicion that the properties, other than the four above referred to, had belonged to the temple, and was insufficient to throw the onus upon the defendant except as to those four. The part of the decree removing the defendant from being trustee was set aside. The learned judges thought that in claiming the properties the defendant was merely asserting rights which his ancestors had asserted, and that, though his conduct in concocting the accounts and supporting them by his evidence was very reprehensible, he had spent more than he had received from the temple properties. They decreed the costs of the suit against the defendant.

1922. March 2, 3, 6, 7, 9. Sir George Lowndes K.C. and Kenworthy Brown for the appellant.

De Gruyther K.C., E. B. Raikes, and Palat for the respondent.

The arguments proceeded mainly upon the evidence. Reference was made to the following authorities as to removal of the trustee of a religious endowment, Peary Mohan Mukerji v. Monohar Mukerji (( 1921) L. R. 48 I. A. 258.), Tudors Charitable Trusts (ed. 1889), p. 194; as to the duty of a trustee to be ready with his account, cases cited in Lewin on Trusts, 12th ed., p. 887; as to the presumption against a trustee who mixes the trust fund with his own money, Lupton v. White ((1808) 15 Ves. 431, 436.); as to the position of a dharmakarta, as distinct from that of the head of a math or a shebait, to Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Swami (( 1904) I L. R. 27 M. 435.) ; generally as to the relation of " trustees " of Hindu religious institutions to the endowed property, to Prosunno Kumari Debya v. Golab Chand (( 1875) L. R. 2 I. A. 145, 152.), Vidya Varuthi

v. Balusami Ayyar (( 1921) L. R. 481. A. 302, 311.) and Maynes Hindu Law, para. 437 ; as to mirasi tenure, to the Chingleput District Manual ( 1879), pp. 222, 258, 288, 300, 301, to the Fifth Report, vol. iii., p. 159 (Places report), and the Mirasi Papers ( 1862), passim, more particularly to pp. 261, 365.

April 6. The judgment of their Lordships was delivered by

LORD SHAW OF DUNFERMLINE. This is an appeal against the judgment and decree of the High Court of Judicature a