PARASURAMA UDAYAN Vs. AVEDAJI BASKAR THIRUMAL ROW

JUDGEMENT

(1.) These are two connected Second Appeals from the same judgment pronounced by the Subordinate Judge, Vellore as the Lower Appellate Court. In one of these second appeals, the appellant is the fifth defendant, and in the other, the appellants are the defendants Nos. 1 and 2. The facts of the case shortly stated are these. The plaintiff is the hereditary trustee of a temple called the Kasivis-vanatha Swami Temple situated in a village included in his Ami Jaghir. The 4 defendant is the hereditary archaka (temple priest) in the said temple and along with the hereditary office has inherited the right of enjoying the emoluments of certain manyam lands attached to the archaka service. In the year 1894 the elder brother of the 4th defendant who is the father of the 5 defendant and who was then the hereditary archaka granted a permanent lease of the plaint lands in favour of the father of defendants Nos. 1 to 3. The plaintiff executed a power of attorney, Exhibit D, in January 1915 in favour of one K.V. Lakshmana Rao, appointing him as (what the document describes as the) Commissioner and Agent to do several acts, functions and duties and to exercise several powers. One of such duties and powers which are granted under this deed Exhibit D is described in paragraph 9 as follows: " He", (i. e. the said Commissioner) " is authorised to appoint, dismiss, suspend or fine all Devastanam servants of my Jaghire and hold enquiries with regard to Devastanam and Service Inams of my Jaghire and take necessary steps for the proper management of the said Devastanam". Purporting to act under this clause, Mr, Lakshmana Rao enquired into the conduct of the defendants Nos. 4 and 5 (the fifth defendant was a minor at that time) and dismissed them from their office, of archakas on the 30 July 1915. This suit is brought (basing that dismissal as the cause of action) for the recovery of the lands from all the defendants, and also for a declaration tha? the lands belong to the suit temple. Defendants Nos. 1 to 3 (whose father obtained the permanent cowle) went so far as to deny that the lands were temple lands and raised several other defences which it is unnecessary to set out in detail. Defendants Nos. 4 and 5 pleaded that it was only the melwaram of the lands that belonged to the suit temple and was granted as service manyam and that their dismissal by Mr. Lakshmana Rao was invalid, they being hereditary archakas who were not guilty of any such misconduct as could justify their dismissal. They seem also to have raised at the time of the framing of the issues the contention that the proceedings of Mr. Lakshmana Rao dismissing them were not legally valid because the delegation of the right of enquiry into the misconduct of hereditary archakas by the plaintiff to Mr. Lakshmana Rao was legally not justifiable. (Several other pleas were also raised which, again, it is unnecessary to set out).

(2.) The first issue raised in the case was whether the plaintiff can sue on behalf of the plaint mentioned temple. The District Munsif subdivided this issue into three, viz., (1) whether there was sufficient ground for the dismissal (that is of the defendants Nos. 4 and 5): (2) whether the defendants Nos. 4 and 5 could be legally dismissed and (3) whether the Commissioner was competent to dismiss in the place of the Jaghirdar. 1 think the question No. 3 should be answered in favour of the contention of the defendants Nos. 4 and 5 because, a trustee Cannot appoint an Agent to do acts in which judicial discretion was intended to be exercised by himself (the trustee). The? power of appointing an Agent exists in a trustee only as regards matters in which expert knowledge is required or in which it is usual (according to the course of the business) to employ Agents in respect of particular acts or where it is a matter of necessity (using the word " necessity in a business sense) to do so (and similar exceptional circumstances). The power of appointment and dismissal of hereditary temple servants who cannot be dismissed (without sufficient cause such as grave misconduct being established) is not one of the powers of a trustee which are capable of being delegated to an Agent. This principle of law is recognised in Krishnamachar V/s. Rangacharlu (1892) I.L.R. 16 Mad 73 and I do not think it necessary to quote in support of the above principle the observations in cases (English and Indian) in which this matter has been considered. Defendaijts Nos. 4 and 5 were thus not validly dismissed and it follows that the plaintiff's claim to recover possession of Ihe plaint lands must be negatived. Having regard, however, to the facts that the defendants Nos. 1 to 3 even denied that the lands belonged to the temple, and that the defendants Nos. 4 and 5 alleged that only the melwaram belonged to the temple and also to the contention put forward by all the defendants that the permanent lease in favour of defendants Nos. 1 to 3 is binding on the temple, 1 would grant in favour of the temple the following declaratory reliefs: (1) that it be declared that the plaint lands belong to the temple and are held by the defendants Nos. 4 and 5 as archakas of the temple and (2) that the permanent lease granted in favour of the father of the defendants Nos. 1 to 3 is not binding on the temple. The parties will bear their respective costs throughout. Napier, J

(3.) I agree.