NEELAKANTAN NAMBOODIRI Vs. NARAYANAN NAIR

JUDGEMENT

(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.) 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:

(3.) In Stephens v. Elwall (105 English Reports 830) Lord Ellenborough C. J., declared the law thus: