SHANMUGA MUDALI Vs. ARUNAGIRI MUDALI

JUDGEMENT

(1.) The plaintiff's case shortly is, the plaintiff and the four defendants are the five trustees of the suit temple appointed under a High Court scheme in A.S. No. 273 of 1918 Clause 4 of the scheme runs that: one of the trustees shall be the executive trustee by consent in writing of the others and he shall not continue as such for a period execeeding two years.

(2.) Defendant 2 had been the executive trustee under this clause for Fasli 1340. As his time of office had expired, a meeting of trustees was summoned by him for 7 July 1931. Plaintiff and defendants 2 and 4, although served with notice of the meeting, did not choose to attend. At the meeting (see Ex. 3) defendants 1 and 3 were present and defendant 2 sent a letter consenting to the appointment of defendant 1 as executive trustee. The meeting resolved that defendant, should be the executive trustee for Fasli 1341. The plaintiff claims that this appointment of defendant 1 is ultra vires of the scheme, that this is an interference with his right of management and therefore sues to have defendant 1's appointment declared void and that defendant be restrained by injunction from functioning as executive trustee. The trial Court dismissed the suit; the appellate Court decreed it; and defendant 1 appeals.

(3.) The main question is whether the plaintiff has any cause of action. It appears to me that he has none. The plaintiff, contends that Clause 4 of the scheme means that all the trustees must consent in writing to the appointment of the executive trustee. I do not so interpret the clause. Any body of trustees can by resolution in the ordinary way appoint any one of their number as the managing or executive trustee, and if the clause was designed not to express but to curtail this right, I shoult expect it to have been expressed in very different terms such as that no executive trustee shall be appointed except with the express consent in writing of all the trustees. Clause 4 seems to me to be designed merely to indicate to the body of trustees a method by which the executive trustee may be appointed, in particular that he should be appointed with the consent of the other trustees, that is of the body of trustees, and I can see in it no design to deprive that body of their right to appoint by resolution a managing trustee or to interfere with their right to pass such a resolution by a majority vote. The lower Court's citation of Ramalinga Mudaliar V/s. Sundra Sastrigal, A.I.R. 1929 Mad. 526, is irrelevant, since the discussion there was on a quite different point. Here as a matter of fact three out of the five trustees, that is, defendants 1, 2 and 3, were in favour of having an executive trustee and of appointing defendant 1 to that office. It is true that there were not three present at the meeting and that the consent in writing of defendant 1 himself docs not seem to have been obtained; but the purpose of Clause 4 has been substantially complied with that being as I read it that for the appointment of executive trustee a majority of the trustees should consent. I cannot follow the lower appellate Court when holding that defendant 1 cannot be considered as one of the trustees entitled to consent as much as any other. So whether defendant 4 was or was not then a trustee, a point upon which the lower appellate Court has spent much time is immaterial. Obviously no trivial deviation from formal compliance with the rules under the scheme will do any real injury to any party, and no injury is done if the rules have been substantially complied with. To hold otherwise would be to constitute the civil Court the actual manager of the temple, a practice which has often been condemned. The plaintiff's remedy if he wanted to defeat the election was to go to the meeting and vote against the proposal and persuade his colleagues to vote against it also. It does not appear to me that he has any cause of action even if there has been a technical breach of the rules.