SUNDARESAN CHETTIAR Vs. VISWANADA PANDARA SANNADHI

JUDGEMENT

(1.) This Second Appeal arises from a suit brought) by the plaintiff against the late Pandara Sannadbi of Vedaranniyam Devastanam for money due on a bond executed by him to plaintiff's deceased grand-uncle. Plaintiff claimed a decree against the defendant personally and against the trust funds, as he alleged that the money was borrowed for devastanam purposes. The defendant raised several pleas which are not material now but did not set up any plea that the debt-was not binding on the devastanam properties.

(2.) The Subordinate Judge decreed the suit as brought in plaintiff's favour and gave him a decree for payment by the defendant personally and out of the temple funds. The Pandara Sannadhi appealed and, besides raising objections to the findings of the trial Court, pleaded that he was not in any event personally liable. He did not specifically object to the liability cast on the temple properties. Pending this Appeal the Pandara Sannadhi was removed from office in another suit and the contesting second respondent before us was appointed Receiver of the temple properties. He was added as party appellant on his own motion, and he asked leave of the Court to his a new ground of appeal, viz., that the temple funds were in any event not liable for the bond amount. Leave was given on condition that the point was to be argued as a pure question of law, whether in the absence of an express charge on the temple property for the bond amount such property could be made liable. No question of fact was to be raised and it was to be conceded that the borrowing was for temple necessity and within the powers of the trustee, and that by the contract of borrowing itself it was arranged that the debt was to be paid from the trust funds. These conditions were accepted and the new ground was allowed to be raised. There is no question now before us whether these conditions should have been insisted on; having accepted them, it is not open to the Receiver now to go back upon what he did, and ask for a trial on facts on the point. For the purpose of this Second Appeal, we must take the point sot out above as the basis of our decision, even though it is not very clear from the terms of the bond that the repayment of the whole debt was to be made from the temple funds.

(3.) The learned District Judge has held that whatever the nature of the debt and of the contract regarding it might be, no decree could be given against the trust property because no express charge had been created on that property by the trustee, and he relies on Swaminatha Aiyar V/s. Srinivasa Aiyar as the authority for his view. It is urged by the appellant plaintiff that this view is not right.