Sri Vedagiri Lakshmi Narasimha Swami
Temple Vs. Induru Pattabhirami Reddy [1966] INSC 157 (6 September 1966)
06/09/1966 RAO, K. SUBBA (CJ) RAO, K. SUBBA
(CJ) SHELAT, J.M.
CITATION: 1967 AIR 781 1967 SCR (1) 280
CITATOR INFO:
R 1989 SC2102 (7)
ACT:
Madras Hindu Religious and Charitable Endowments
Act (19 of 1951), Chapter VI] and s. 93-Ex-trustees' liability to account-Scope
of-Suit against ex-trustees for rendition of accounts-Maintainability.
HEADNOTE:
The trustees of a tempter filed a suit for rendition
of accounts 'against ,the ex-trustees, in respect of their management of the
temple. The trial court and the first appellate court, in their discretion and
having regard to the circumstances of the case, directed the defendants to
render accounts for about six years prior to the plaintiffs taking possession
of the temple. The High Court held that the defendants were not obliged to
render accounts in the absence of allegations of acts of negligence or willful
default, and that, s. 93 of the Madras Hindu Religious and Charitable
Endowments Act, 1951, was a bar to the maintainability of the suit.
In appeal to this Court,
HELD : (i) No trustee can get a discharge
unless he renders account of his management irrespective of any question of
negligence or wilful default. The defendants, therefore, were liable to render
accounts of their management to the plaintiffs. As regards the period for which
they should be made liable to render accounts, it would depend upon the facts
of each case, and there was no Justification for interfering with the
discretion of the lower courts in that regard. [284 D-E; 286 C] Case law
referred to.
(ii) Section 93 is not a bar to the
maintainability of the suit. [292 A] The section only imposes a restriction on
suits or other legal proceedings in respect of matters for which a provision
has been made in the Act. 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.
It does not bar suits under the general law
which do not fall within the scope of any of the sections of the Act.
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. [287 F; 289 C; 291 H; 292 A] Case law referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 605 of 1964.
Appeal by special leave from the judgment and
decree dated April 12, 1963 of the Andhra Pradesh High Ccurt in S.A. No. 124 of
1959.
281 P. Ram Reddy and A. V. V. Nair, for the
appellant.
H. R. Gokhale, S. P. R. Vital Rao, K.
Rajendra Chaudhari and K. R. Chaudhuri, for the respondent.
The Judgment of the Court was delivered by
Subba Rao, C.J. This appeal by special leave raises the question whether a suit
would lie at the instance of the present trustees of a temple for rendition of
accounts of the management of the temple by the ex-trustees.
The appellant is Sri Vedagiri Lakshmi
Narasimha Swami temple situated at Narasimhuly konda, Nellore taluk, in the
State of Andhra Pradesh, represented by its trustees. The respondent and two
others were non-hereditary trustees of the said temple and functioned as such
for a term of five years ending with January 1951. The respondent was the
managing trustee during that period. The new trustees were appointed by order
of the Hindu Religious Endowments Board dated January 21, 1951 ; but they were
able to obtain possession of the temple only on July 21, 1952. They,
representing the temple, filed O.S. No. 246 of 1953 in the Court of the
Subordinate Judge, Nellore against the respondent and others for the following
three reliefs : (1) to direct all or such of the defendants as may be found liable
to render a true and proper account of their management of the temple and its
properties since the date of their functioning as trustees and to pay over to
the new trustees such amounts as may be found due ; (2) to assess the amount
due to the temple as a result, of the various acts of malfeasance, misfeasance
and nonfeasance of the defendants 1 to 3 in respect of their management, and to
direct them to pay the same to the new trustees ; and (3) to direct the
defendants 1 to 3 to deliver to the new trustees all documents, accounts,
registers, s. 38 register, jewels and movable properties, after rendering a
true account thereof and failing such delivery, to pass a decree against the
defendants for their value, or pass such decree against them for such damages
as the temple had sustained. In the plaint, the new trustees alleged that the
defendants were guilty of acts of misfeasance, malfeasance and nonfeasance and
also of gross negligence. The defendants, inter alia, apart from denying the
said allegations made against them, pleaded that the suit was not maintainable
in a civil court in view of the provisions of s. 87 of the Madras Hindu
Religious and Charitable Endowments Act, 1951 (Act 19 of 1951), hereinafter
called the Act.
The learned Subordinate Judge, by his
judgment dated August 12, 1953, held that the suit was maintainable. He also
found that defendants 1 to 3 were liable to render an account of their
management during the period of their trusteeship and to pay damages for the
loss suffered by the temple on account of their 282 acts of misfeasance,
malfeasance and nonfeasance. In the result, he passed a preliminary decree in
favour of the new trustees directing the respondent and defendants 2, 5 and 6
the legal representatives of defendant 3, to render a true and proper account
of their management of the temple and its properties for the period commencing
from the beginning of 1946 to the date when the plaintiffs took possession of
the temple in July 1952 and to pay such amounts as may be found due from them
on taking accounts. The 1st defendant, the ex-managing trustee of the temple,
preferred an appeal against the said decree to the court of the District Judge,
Nellore. To that appeal, the plaintiffs were made respondents. Pending the
appeal, the plaint was amended and the words "of pass such decree against
them for such damages as the temple has sustained thereby" were deleted
from prayer 3 of the plaint. The learned advocate for the plaintiffs made an
endorsement on the plaint and the appeal memo stated as follows :
"Plaintiffs have given up prayer in
respect of the damages as endorsed by the learned advocate on behalf of the
plaintiffs on the plaint on 20-8-1958." The learned District Judge also
recorded in his judgment that the appellant (respondent herein) did not press
his appeal in respect of the claim for damages given up by the plaintiffs.
Prima facie this amendment related only to the prayer to deliver to the new
trustees the documents and other movable properties and did not affect the other
prayers for rendition of accounts on the ground of malfeasance, misfeasance and
nonfeasance of the defendants.
The learned District Judge understood the
finding given by the learned Subordinate Judge as follows :
"Setting out all these things in detail
in paras 13 and 14 of his judgment, the learned Subordinate Judge came to the
conclusion that it was sufficient to say that there is liability to account in
respect of the management on the part of the ex-trustees, i.e., defendants 1
and 3, and that they are liable to pay to temple whatever damages it has
suffered on account of their acts of misfeasance, malfeasance and
nonfeasance." After considering the relevant evidence and the case law on
the subject, he came to the following conclusion :
" I have no hesitation to hold that the
plaintiffs have established liability for extrustees to render account of their
management to deliver possession of the other property yet to be delivered and
also the records mentioned in the plaint." The learned District Judge,
therefore, agreed with the learned Subordinate Judge that the defendants had to
render accounts 283 of their management of the temple and to pay to the temple
damages suffered by it on account of their acts of misfeasance, malfeasance and
nonfeasance. In the result the decree of the learned Subordinate Judge was
confirmed.
But, on Second Appeal, Jaganmohan Reddy, J.,
of the Andhra Pradesh High Court, held that the suit for accounts was not
maintainable. The reasoning of the learned Judge is found in the following
observations :
"It is true that a suit for back
accounting on the authority of the decisions cited above does not lie and
unfortunately in this case though the frame of the suit was for recovery of
damages for negligence of the trustees in not taking leases, in not filing rent
suits, in not collecting rents and generally for other acts of negligence, that
plea was given up by the respondents, probably because they were not in a
position to establish these facts. The learned advocate for the respondents
admits that this plea was given up by the clients and in the circumstances the
only relief that the respondents claim against the appellant now is one for
general accounting relating to the management or administration of the trust
property and applying the principle laid down by the two judgments of this
Court in Venkataratnam v. Narasimha Rao (1) and Sri Saraveswaraswami Vari
temple v. Veerabhadrayya (2), 1 cannot but hold that suit will not he and in
this view, the appeal is allowed and the judgments and the decrees of the
courts below are set aside." Though, prima facie, as we have said earlier,
we are inclined to hold that what was given up by the appellant was only a part
of the third relief, in view of the unambiguous admission made by the learned
advocate for the appellant and recorded in the judgment of the High Court, we
have no option but to hold that the appellant had given up the plea of wilful
default against the defendants and confined the relief only to a rendition of
accounts by them in respect of their management of the temple during their
tenure and to pay the amount that might be found due to the appellant.
Mr. P. Ram Reddy, learned counsel for the
appellant-temple, raised before us three points : (1) The suit was for damages for
gross negligence and the learned Judge did not appreciate the correct scope of
the concession made by the learned advocate appearing for the temple before
him. (2) Section 93 of the Act is not a bar to a suit by the present trustees
against the ex-trustees for rendition of accounts of their management of the
temple (1) [1960] 2 Andh. W.R. 319.
M15Sup.CI/66-5 (2) [1961] 1 Andh. W.R. 25J.
284 properties and recovery of the amounts
due from them. (3) The learned Judge went wrong in holding that a suit for
back-accounting would not lie.
On the first point we have already expressed
our opinion earlier that, in view of the unambiguous concession made by the
learned advocate for the appellant before the High Court, we must hold that the
suit, after the amendment of the plaint, was confined only to rendition of
accounts, not on account of wilful default or negligence, but only for
rendition of accounts by the ex-trustees of their management and to pay the
amounts due to the present trustees.
The question, therefore, is whether the
present trustees can demand a rendition of accounts from the ex-trustees in
respect of their management without alleging against them any acts of
negligence or wilful default and, if so, whether s. 93 of the Act was a bar to
the maintainability of a suit for the relief of rendition of accounts in a
civil court.
It is common place that no trustee can get a
discharge unless he renders accounts of his management. This liability is
irrespective of any question of negligence or wilful default. In the present
case, the ex-trustees admittedly did not give an account of their management
though they put the plaintiffs in possession of the properties in the year 1952
and that too after adopting a course of obstructive attitude. They are, therefore,
liable to render accounts of their management to the present trustees.
The decisions relied upon by the learned
Judge to not support the view that an ex-trustee need not render accounts in
the absence of allegations of negligence or wilful default.
In V. K. Kelu Achan v. C.S. Sivarama Pattar
(1) one of the questions raised was whether the 1st defendant therein, who was
a karnavan of a tarwad and also the manager of temple properties, should be
made to give a general rendition of accounts of his management from 1900. It
was found in that case that the 1st defendant was not personally responsible
for any loss to the temple, that no relief for rendition of accounts was asked
for against him and that he was not the person who was maintaining the accounts.
on those facts, the High Court refused to give a decree against the 1st
respondent for back-accounting. In the course of the judgment the following
observations were made :
"It is a general principle also that
back accounting will not be decreed except on proof of dishonesty and
malversation, and we have not found any such proof here against the present
trustee." These observations do not circumscribe the scope of the court's
discretion, but only lay down a guide for its exercise. They must (1) A.I.R. 1928
Madras 879, 887.
285 be read in the context of the facts found
in that case. Nor the decision in The Madura etc. Devasthanams v. Doraiswami
Nayudu(1) lays down any such wide proposition. There, the executive officer of
a temple sought to recover from its extrustee a certain amount by way of
damages on foot of gross negligence. It was found that the trustee was not
guilty of any wilful default and that he was justified in acting upon the
vouchers and accounts furnished by the law department of the Devasthanam and
also that it was not established that any items were really due to the temple.
On those facts the suit was dismissed. Briefly stated, that was a suit for
rendition of account on the ground of wilful default in the course of
management of the temple affairs and, as no wilful default had been
established, the suit for accounts was dismissed., It is not an authority for
the position that unless wilful default is established an ex-trustee need not
account to the present trustee and to pay to him the amount due under the said
accounts. In the case of rendition of accounts by an ex-trustee to a present
trustee, it will necessarily relate to back accounting, for no question of
accounting in future arises in his case. The question that invariably arises in
such a context is as to what period he shall be made liable to render accounts.
That depends upon the facts of each case. Sir Thomas Flumer, M. R., said in
Attorney General v. Exetor Mayor (2) :
"It has, I think, been properly stated
on both sides, that there is no fixed limit of time in directing an account
against a trustee of a charity,........ It does not, however, follow that the
relief will be given after a great length of time, it being the constant course
of Courts of Equity to discourage stale demands ; even in cases of fraud, in
which, if recent, there would have been no doubt, lapse of time has induced the
Courts to refuse their interference. In cases of charities, this principle has
often been acted on. When there has been a long period, during which a party
has, under an innocent mistake, misapplied, a fund, from the leaches and
neglect of others, that is, from no one of the public setting him right, and
when the accounts have in consequence become entangled, the Court, under its
general discretion, considering the enormous expense of the enquiries, the
great hardships of calling upon representatives to refund what families have
spent, acting on the notion of its being their property, has been in the habit,
while giving the relief, of fixing a period to the account." These
observations were followed by a Division Bench of the Madras High Court in
Sanyasayya v. Murthamma (3). Where (1) [1943] 1 M.L.J. 144.
(2) [1822] 37 E.R. 918.
(3) A.I.R. 1919 Madras 943.
286 a suit was filed for an account for the
year 1884 and the 1st defendant was asked to account for the management of his
father and grand-father, the learned Judges of the Madras High Court fixed the
period of accounting at 12 years. The said observations were also followed by
the Andhra High Court in Hariharabrahmam v. Janakiramiah (1) and, having regard
to the circumstances in that case, the said High Court directed accounts to be
taken for a period of six years prior to 1938.
In the present case the learned subordinate
Judge and the learned District Judge, in exercise of their discretion, having
regard to the circumstances of the case, directed the respondent to render
accounts of his management from the beginning of the year 1946 to the date when
then plaintiffs took possession of the temple in July 1952. We do not see any
justification to interfere with the discretion of the courts in that regard.
The next question is whether s. 93 of the Act
is a bar to the maintainability of the suit. The said section reads :
"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." The learned counsel for the appellant
contended that in order to invoke this section the following conditions shall
be complied with: (1) The suit shall be in respect of the administration or
management of a religious institution ;
(2) it shall be in respect of any other
matter in dispute ;
and (3) for determining or deciding such a
suit or other legal proceeding there shall be a provision in the Act ; if there
is such a provision, such a suit or proceeding could not be instituted in any
court of law except under, and in conformity with, the provisions of the Act.
The further argument was that the administration or management referred to in
s. 93 related to s. 58 of the Act, and the other matters of dispute related to s.
57 thereof, and that, as the suit for rendition of accounts did not fall either
under s. 57 or under s. 58 of the Act, the present suit for such a relief was
outside the scope of s. 93 of the Act.
Mr. Gokhale, learned counsel for the
respondent, contended that Ch. VII of the Act provided for rendition of
accounts and a machinery for determining or deciding disputes in respect
thereof, and that, therefore, no suit or other legal proceeding could be taken
in any court except under and in conformity with the provisions of that
Chapter.
(1) A.I.R. 1955 Andhra 18.
287 Under s. 9 of the Code of Civil
Procedure, the courts shall have jurisdiction to try all suits of a civil
nature excepting suits of which their cognizance is either expressly or
impliedly barred. It is a well settled principle that a party seeking to oust
the jurisdiction of an ordinary civil court shall establish the right to do so.
Section 93 of the Act does not impose a total
bar on the maintainability of a suit in a civil court. It states that a suit of
the nature mentioned therein can be instituted only in conformity with the
provisions of the Act; that is to say, a suit or other legal proceeding in
respect of matters not covered by the section can be instituted in the ordinary
way. It therefore imposes certain statutory restrictions on suits or other
legal proceedings relating to matters mentioned therein. Now, what are those
matters ? They are : (1) administration or management of religious institutions
; and (2) any other matter or dispute for determining or deciding which
provision, is made in the Act.
The clause "determining or deciding
which a provision is made in this Act", on a reasonable construction,
cannot be made to qualify "the administration or management" but must
be confined only to any other matter or dispute. Even so, the expression
"administration or management" cannot be construed widely so as to
take in any matter however remotely connected with the administration or
management.
The limitation on the said words is found in
the phrase "except under and in conformity with the provisions of this
Act." To state it differently, the said phrase does not impose a total bar
on a suit in a civil court but only imposes a restriction on suits or other
legal proceedings in respect of matters for which a provision is made in the
Act.
Any other construction would lead to an
incongruity, namely, there will be a vacuum in many areas not covered by the
Act and the general remedies would be displaced without replacing them by new
remedies.
The history of this provision also supports
the said interpretation. Sub-section (2) of s. 92 of the Code of Civil
Procedure says :
"Save as provided by the Religious
Endowments Act, 1863, no suit claiming any of the reliefs specified in
subsection (1) shall be instituted in respect of any such trust as is therein
referred to except in conformity with the provisions of that sub-section."
Suits for reliefs mentioned in sub-s.(1) of s. 92 of the Code of Civil
Procedure can only be instituted in special courts and in the manner mentioned
therein. Construing the said sub-section, a Full Bench of the Madras High Court
in Appanna v. Narasinga (1) held that a suit by a trustee of a public religious
trust against a co-trustee for accounts did not fall within the section, though
the relief claimed (1) (1922) I.L.R. 45 Madras 113.
288 was the one specified in sub-s. (1), cl.
(d). The reason given was that the relief was sought not in the larger interest
of the public but merely for the purpose of vindicating the private rights of
one ,of the trustees and of enabling him to discharge the duties and
liabilities which were imposed upon him by the trust. Another Full Bench of the
Madras High Court in Tirumalai Tirupati Devasthanam ,Committee v. Udiavar
Krishnayya Sahnbhaga (1) held that the ,said section did not apply where the
general trustees of a public temple sued the trustees of certain offerings
given to the deity, for accounts, on the ground that in that suit the right of
the public was not sought to be enforced but only the personal rights of the
trustees qua the trustees.
These decisions indicate that s. 92 of the
Code of Civil Procedure does not impose a general embargo on filing of a suit
in a civil court, but only directs that suits of the nature mentioned in
sub-s.(1) thereof shall not be instituted in a civil court except in conformity
with the provisions of the said 'sub-section. If a suit does not fall within
the ambit of s. 92(1) of the Code of Civil Procedure, it is not hit also by
sub-s.(2) thereof. When the Madras Hindu Religious Endowments Act (2 of 1927)
was passed, in respect of the endowments covered by that Act, s. 73 of that Act
replaced s. 92 of the Code of Civil Procedure. Sub-section (4) ,thereof, which
was added by Madras Act X of 1946 read :
"No suit or other legal proceeding
claiming any relief provided in this Act in respect of such administration or
management shall be instituted except under and in conformity with the
provisions of this Act." The expression "except under and in
conformity with the provisions of this Act" in the said sub-section is
also found in s. 93 of the Act. The scope of the said subsection came under
judicial scrutiny in Manjeshwar Srimad Anantheswar Temple v. Vaikunta Bhakta
(2) Therein Horwill, J., summarised the legal position reached in respect of
the construction of that section thus :
"It will be seen therefore that from 54
Mad.
1011 (Vythilinga Pandarasannadhi v. Temple
Committee, Tinnevelly) onwards there was a considerable body of opinion that
the general scope of s. 73, Hindu Religious Endowments Act, is the same as s.
92, Civil P.C., that the last paragraph of s-. 73 of the Act is meant to refer
only to the classes of cases referred to in s. 73(1) and other sections of the
Act, and that suits which do not fall within the scope of these sections can be
tried under the general law. I have not come across any case in which these
opinions were dissented from or contrary opinions expressed," (1) A.I.R.
1943 Madras 466.
(2) A.I.R. 1943 Madras 228, 230.
289 Sub-section (4), which corresponds to s.
93 of the Act, was held not to impose a total bar on a civil suit but only
confined to suits relating to the classes of cases referred to in s. 73(1) and
other sections of the Act. Section 93 of the Act enlarges the scope of s. 73(4)
thereof It bars not only suits or legal proceedings in respect of
administration or management of religious institutions but also in respect of
any other matter or dispute for determining or deciding which provision is made
in the Act. By repeating the phrase "except under and in conformity with
the provisions of the Act" which had received authoritative judicial
interpretation when it remained in s. 73(4) of the earlier Act, the Legislature
must be held to have accepted the interpretation put upon the phrase by the
courts. It follows that s. 93 will apply only to matters for which provision
has been made in the Act. It does not bar suits under the general law which do
not fall within the scope of any section of the Act.
Even so, the learned counsel for the
respondent contended that Ch. VII of the Act provided a complete machinery for
deciding disputes in regard to accounts and, therefore, no suit for accounting
against an ex-trustee could be filed in a civil court. This interpretation was
accepted by two decisions of the Andhra Pradesh High Court. The decision in
Venkataratnam v. Narasimha Rao(1) dealt with a case of a suit filed with the
permission of the Advocate General for removing the trustee, for framing a scheme
for the management of the trust property, for appointing a new trustee and for
accounts and other incidental reliefs. The contesting defendant pleaded inter
alia that because of the provisions of the Madras Act 19 of 1951, the suit
could not be entertained by the civil court, and that s. 93 was a bar to such a
suit. The Andhra Pradesh High Court held that s.
93 of the Act clearly interdicted the
determination of the subject matter of the suit by a civil court. The reasoning
of the decision is summarized thus :
"Now the suit is entirely based on
allegations of breach of trust and every one of the reliefs prayed for in the
plaint can flow from appropriate action that officers named in the Act may
take. The first relief sought in the present plaint can result from action
taken under section 45 of the Act ; the second and third reliefs from action
under section 58;
the fourth from action under section 60 ; the
6th relief from action under section 57 and the relief numbered and lettered as
6(a) from action under section 87." The High Court also observed "In
our opinion, all these are 'matters or disputes for determining or deciding
which provision is made' in the Act." (1) [1960] 2 Andh. W.R. 319, 323.
290 On that basis it held that s. 93 of the
Act was a bar to the maintainability of the suit.
It may be mentioned that the observation that
the fourth relief could result from action under s. 60 appears to be a mistake,
for s. 60 applies only to a defunct religious institution.
In Sri Sarveswaraswami Vari Temple v. Rudrapaka
Veerabhadrayya(1) Seshachelapati, J., speaking for the court, said thus
"It will be seen, as correctly observed by the learned Subordinate Judge,
that the section has two limbs. The first limb interdicts suits or other legal
proceedings with respect to the administration or management of the religious
institution. The second limb enacts an embargo on suits and legal proceedings
on any other matter in dispute for the determination of which a provision had
been made in this Act." There, the suit was by the present trustees for
the recovery of the temple properties from the hereditary archakas. The High
Court held that such a suit was not one in respect of the administration or
management of the temple and, therefore, it did not attract the embargo entered
in the first limb of the section. This decision, therefore, held that unless
the suit fell within the classes of suits mentioned in s. 93 of the Act, the
provisions of the section were not attracted.
It leads us to the consideration of the scope
of Chapter VII of the Act. If Chapter VII of the Act provides for determining
or deciding a dispute in respect of rendition of accounts, s. 93 of the Act
would be attracted. The heading of the said Chapter is "Budgets, Accounts
and Audit".
Section 70 provides for the presentation of
budgets and the particulars to be mentioned therein. Section 71 enjoins upon a
trustee of every institution to keep regular accounts of receipts and
disbursements. Section 71(4) prescribes for an audit of the accounts every
year. Section 72 directs the auditor to send a report of the results of the
audit to the prescribed authorities. Section 73 enumerates the matters in
respect of which the auditor has to send his report.
Section 74 directs the prescribed authorities
to send the said report to the trustees for remedying the defects pointed out
therein. The Area Committee, one of the prescribed authorities under s. 74(2)
of the Act, has to forward to the Commissioner the report of the auditor along
with the report of the trustees, if any, and with his remarks. If the
Commissioner thinks that the trustee or any other person is guilty of
misappropriation or wilful waste of funds of the institution (1) [1961] 1 Andh.
W.R. 250, 251.
291 or of gross neglect resulting in a loss
to the institution, after making the requisite inquiry, certify the amount so
lost and direct the trustee or such person to pay within a specified time such
amount personally and not from the funds of the religious institution. On the
receipt of such an order, the trustee can apply to a court to modify or set
aside the same. Instead of filing an application to the Court, he has an
alternative remedy to file an appeal to the Government which shall pass such
order as it thinks fit.
Under sub-s. (7) of s. 74, an order of
surcharge under the section against a trustee shall not bar a suit for accounts
against him except in respect of the matter finally dealt with by such order.
Sub-section (8) thereof provides a machinery for collecting the said amounts from
the trustee or other person by way of surcharge.
Relying upon the scheme of this Chapter, it
is contended that it provides an exhaustive and self-contained machinery for
scrutinizing the accounts, for orders of surcharge and to recover the amount
surcharged from the trustee or other persons and for a suit to set aside such
orders or alternatively for an appeal to the Government and that, therefore, no
suit for rendition of accounts would lie dehors the provisions of the Act.
We find it difficult to accept this argument.
Chapter VII only provides for a strict supervision of the financial side of the
administration of an institution. The scope of the auditor's investigation is
limited. It is only an effective substitute for the trustee himself furnishing
an audited account. It is concerned only with the current management of a
trustee. It does not even exonerate a trustee of his liability to render
accounts except to a limited extent mentioned in sub-s. (7) of s. 74 ; it only
facilitates the rendition of accounts. Under sub-s. (7) of s. 74, an order of
surcharge under that section against a trustee shall not bar a suit against him
except in matters finally dealt with in such order. This shows by necessary
implication that a suit can be filed for accounts against a trustee in other
respects. In any view, it has nothing to do with the management of a temple by
a previous trustee. It is contended that under sub-s. (5) of s. 74 the trustee
or any other person aggrieved by such order may file a suit in the civil court
or prefer an appeal to the Government questioning the order of the Commissioner
and, therefore, it is open to any member of the public to file a suit under the
Act. "Any person" there only refers to a person mentioned in sub-s.
(3) of s. 74, i.e., a person who is guilty of misappropriation or wilful waste
of the funds of the institution etc. It obviously refers to a trustee or some
other person in management of the institution who is guilty of
misappropriation. We, therefore, hold that Chapter VII of the Act has no
bearing on the question of liability of an ex-trustee to render account to the
present trustee of his management. Chapter VII does not provide for 292
determining or deciding a dispute in respect of such rendition of accounts. If
so, it follows that s. 93 of the Act is not a bar to the maintainability of
such a suit.
In the result, we set aside the decree of the
High Court and restore that of the learned Subordinate Judge. The respondent
will pay the costs of the appellant throughout.
V.P.S.
Appeal allowed.
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