ACHAYI Vs. CHITTANJOORKAVU DEVASWOM

JUDGEMENT

(1.) This civil miscellaneous appeal arises out of a suit brought on behalf of a Devaswom, the Chittanjoorkavu Devaswom, for cancellation of an alienation of some of its properties and recovery of possession of the alienated properties with past and future mesne profits. The alienation sought to be cancelled is Ext, I dated 30-7-1117 (M.E.). This document was executed by one Neelakantan Nambudiri of Kodakkat Illom, his wife and two of his children. Neelakantan Nambudiri had other children also, but all his children except the two who had joined in the execution of Ext. I were minors on the date of that document, & Neelakantan Nambudiri had executed the document both in his own right and in his capacity as guardian of those minor children. The Chittanjoorkavu Devaswom was described in Ext. I as belonging to the Illom of the executants thereof, and the properties dealt with therein were described as belonging to the said Devaswom. Some time after the execution of Ext. I, the Cochin Devaswom Board assumed management of the Chittanjoorkavu Davaswom and appointed the plaintiff as the trustee thereof under the provisions of the Hindu Religious Institutions Act, XV of 1950. The suit was brought on behalf of the Devaswom by the plaintiff as its trustee appointed by the Cochin Devaswom Board on the allegation that the alienation was not supported by consideration and necessity binding on the Devaswom.

(2.) The alienee, defendant 1, contended that the Chittanjoorkavu Devaswom was not a public Devaswom but a private Devaswom and the Devaswom Board had, therefore, no right to appoint a trustee for it, that the suit brought by the trustee appointed by the Devaswom Board was not maintainable in as-much as he was not de-jure trustee of the Devaswom, and that as Ext. I was executed for necessity and consideration binding on the Devaswom as well as the Illom of the alienors it was not liable to be set aside. The Trial Court dismissed the suit upholding all these contentions of the alienee. Without deciding whether the Chittanjoorkavu Devaswom was a public Devaswom or private Devaswom and whether the appointment of the trustee by the Devaswom Board was valid in law or not, the lower appellate court held that even if the Devaswom was a private Devaswom and the plaintiff had not been validly appointed trustee, he was entitled to maintain the suit inasmuch as he was a de facto trustee and that Ext. I was supported by consideration and necessity binding on the Devaswom only to the extent of Rs. 275 and was not supported by consideration and necessity so far as the balance sale price mentioned in it was concerned. Consequently, that court set aside Ext. I and passed a preliminary decree allowing the plaintiff to recover possession of the alienated properties on behalf of the Devaswom after payment of Rs. 275 to the alienee and value of the improvements and remanded the case to the Trial Court for passing a final decree after settling and deciding the issues regarding value of the improvements and mesne profits. Against this order of remand the legal representatives of the alienee, defendants 3 to 7, have brought this civil miscellaneous appeal.

(3.) It was vehemently contended before us by the appellants counsel that the Devaswom in question is only a private Devaswom and not a public Devaswom & so the appointment of the plaintiff as trustee by the Cochin Devaswom Board was invalid, & equally vehemently it was contended by the respondents counsel that the Devaswom is a public Devaswom and the appointment of the trustee by the Board is valid. It is true that the lower appellate court has not decided this question, but so far as the present suit is concerned nothing material turns on its decision. The question was raised by the defendant only for the purpose of denying the plaintiffs right to maintain the suit on behalf of the Devaswom. His contention was that the plaintiff had no right to sue on behalf of the Devaswom as he was not its dejure trustee. As the plaintiff relied upon his appointment as trustee by the Cochin Devaswom Board in support of his right to maintain the suit on behalf of the Devaswom the defendant contended that the Devaswom was a private Devaswom and so the Devaswom Board had no right to assume its management and appoint a trustee for it and that consequently the plaintiff was not the dejure trustee and had no right to maintain the suit on its behalf. In our opinion, the plaintiffs right to maintain the present suit on behalf of the Devaswom is indisputable even if it is assumed that the assumption of the management of the Devaswom by the Devaswom Board and the appointment of the plaintiff as trustee by the Board are invalid and plaintiff is not therefore the dejure trustee. Both sides admit that consequent on his appointment as trustee by the Devaswom Board plaintiff is now in possession and management of the Devaswom and its properties and that he is also looking after the Devaswom affairs. The members of the Illom which, according to the appellants, is the real owner of the Devaswom and its properties, do not dispute the validity of its assumption by the Devaswom Board and the appointment of the plaintiff as trustee. In these circumstances there can be no doubt that the plaintiff is at least the de facto trustee of the Devaswom if not the dejure trustee. Regarding the right of a de facto trustee to maintain a suit on behalf of the trust, Mukherjea says at pages 271 and 272 of his book on the Law of Hindu Religious and Charitable Trust, 1952 Edition: