TMI Blog1966 (9) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 misfeas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Prade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, though the relief claimed 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 ( A.I.R. 1943 Madras 466) 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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( [1960] 2 Andh. W.R. 319, 323.) 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 deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ninstitu- tion 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 cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
