MANJESHWAR SRIMAD ANANTHESHWAR TEMPLE BY ITS EXECUTIVE OFFICER, K PADMANABHA KAMATH Vs. MVAIKUNTA BHAKTA

JUDGEMENT

(1.) The suit out of which this appeal arises was one under the general law by the trustees in office against ex-trustees for an account of their trusteeship, with allegations of misfeasance, non-feasance, and malfeasance.

(2.) The principal question that falls for decision is whether Section 73 of the Madras Hindu Religious Endowments Act bars such, a suit. The learned Subordinate Judge gave a precis of each of the numerous cases cited before him and then proceeded to draw his general conclusions. They were that the suit could not be brought in its present form and that the remedy of the plaintiffs was to get the accounts audited and to sue for the amount shown to be due. The learned District Judge in appeal did not attempt to discuss the various decisions. He says: I have been taken through a long chain of decisions on both sides and the matter is exceedingly intricate and difficult to come to a conclusion upon as slight differences in the facts of each case appear really to have determined the conclusion in the particular case. But the final effect of my consideration of the matter leads me to the conclusion that the correct proposition to follow is that of Mr. Justice Varadachariar in Sundara Aiyar V/s. Varada Aiyar , that Section 73 contains, a general prohibition that no suit in respect of the management or administration shall be maintained except in accordance with the provisions of the Act. He found that Singam Aiyangar V/s. Kasturi Ranga Aiyangar was to the same effect. It is conceded here that neither of these decisions has any bearing on the matter now in issue.

(3.) The argument of the respondents is divided into two parts: the first is that the general scope of Section 73 of the Act is not the same as Section 92 of the Code; while the other is with regard to the meaning of the expression. No suit shall be instituted except as provided by this Act. On the first point there can be no doubt; because all the cases quoted below emphasise the fact that the application of Section 92 of the Civil P. C. was definitely excluded from the limited class of trusts with which the Hindu Religious Endowments Act was concerned because its provisions were embodied in Section 73 and other sections of the Act. That means that Section 73, as Section 92 of the Code of Civil, Procedure, applies to suits by persons interested in the trust against a person who purports to administer the trust. This was emphasised in Venku Chettiar V/s. Doraiswami Chettiar (1921) 14 L.W. 38 by Napier and Odgers, JJ., who held that Section 92 governs only suits for the vindication of the rights of the public in public charitable trusts and not to suits for vindicting the plaintiff's right of management and getting possession for the purpose of management of the trust properties. Mr. Rajah Aiyar concedes that a suit of the nature that we are now considering would not come within the scope of Section 92, which relates to suits against trustees by persons interested in the institution and not by trustees against other persons; and his contention that the scope of Section 73 is different from that of Section 92, Civil Procedure Code, does not find support in any judicial decisions. In Chanduk Chand V/s. Vedachala Chettiar (1931) 62 M.L.J. 180 : I.L.R. 55 Mad. 549 for example, Beasley, C.J., said that there was nothing in Section 92 Civil Procedure Code, which had not been taken out of that section and placed either in Section 73 or other sections of the Madras Hindu Religious Endowments Act and that if the suit was not within the scope of Section 92, Civil Procedure Code, then it would not be governed by the Hindu Religious Endowments Act. In Venkatacharyulu V/s. Harihara Prasad (1935) 42 L.W. 757. Varadachariar, J., expressed his opinion that Section 73 relates to suits against trustees.