SRI SILAMBANI CHIDAMBARA VINAYAGAR DEVASTHANAM THROUGH ITS SPECIAL RECEIVER, S KRISHNA AYYAR Vs. VRLSTRMCHIDAMBARAM CHETTIAR

JUDGEMENT

(1.) The suit institution, Sri Silambani Chidambara Vinayagar Devasthanam, is managed by the descendants of one Thungan Chettiar. In 1932, one branch of his family brought a suit O.S. No. 78 of 1932 on the file of the Subordinate Judge of Devakottai, for a declaration that they, as well as the defendants, who are the members of another branch of the family, were entitled to manage the temple properties in accordance with an arrangement entered into in 1907 by an agreement which is marked as Ex. P in this suit. As the affairs of the temple were being neglected because of the quarrel between two branches of the family, a receiver, Mr. S. Krishna Ayyar, was appointed to recover sums of money collected by various members of the family while managing the affairs of the temple. He is the plaintiff in the suit out of which this appeal arises. He contended that the defendant in the suit owed a sum of Rs. 51,759-11-6 to the temple, consisting of Rs. 15,237-5-6 due in 1903 and acknowledged by the defendant's father, and the sum of Rs. 36,000 odd by way of interest. The acknowledgment took the form of a hundi, Ex. B. The defendant denied that his father had executed the suit hundi. He concluded his written statement by alleging that the suit was barred by reason of laches and lapse of time. Various questions of law and fact were raised in the issues and every point was decided in the plaintiff's favour with the exception of the question of limitation. The Subordinate Judge held that the suit was barred by time as it was brought on 10 April, 1935, nearly 32 years after the execution of the suit hundi, and as Section 10 of the Limitation Act, on which the plaintiff had relied to save limitation, did not apply to the facts of the case.

(2.) Before considering whether the plaintiff can avail himself of the provisions of Section 10 to save the suit from the bar of limitation, it is necessary to consider one or two small questions of fact. It is admitted here that the defendant's father, Ramanathan, did collect monies and that the amount shown in Ex. B was the amount then due by him to the plaint institution. It is however contended that the hundi is what it purports to be, a negotiable instrument, which is a contract between Ramanathan and the representatives of the temple, that therefore any fiduciary relationship between the defendant's father and the temple was brought to an end by Ex. B, and that the preesnt suit must be regarded as a suit by a creditor against the debtor on a negotiable instrument. In the first place, there is definite evidence by P.W. I which has not been rebutted, that Ex. B was intended to be only a voucher and acknowledgment by the defendant's father that he held the sum of Rs. 15,237-5-6 belonging to the suit temple. The hundi was drawn on a firm in Madras with which the defendant's father had no account. There were three other similar documents executed at the same time by other trustees. Those hundies, too, were never presented. P.W. 1, executed one of them and he discharged his obligation to the temple by selling some of his land. The evidence shows that in or about 1903 there was some dissatisfaction with the way in which Ramanathan, the father of the defendant, was managing the affairs of the temple, that a few members of the family examined the accounts of various persons who had been trustees, and as far as Ramanathan was concerned, the figure shown in this account as being due to the temple was accepted. But there is no reason to think that this Panchayat had any authority to bind the institution. It was merely a small body appointed, so that the other members of the family might satisfy themselves that the representations made by persons who had been trustees in the past as to the amounts due by them to the institution were correct. The four documents that were then drawn up were not executed in favour of any particular trustee, the heading merely indicating that it was a hundi executed in favour of the Silambani Devas-thanamj and the hundi commenced with the words "credit to the Silambani Chidambara Vinayagarswami temple and debit to V.R.L.S.T. Firm, Devakottai." The lower Court has given other reasons which we consider equally valid for its conclusion that Ex. B was nothing more than an admission of a.liability. The trustees who were appointed by the members of the family to represent them could have filed a suit to recover that sum of money; there is no reason to think that Ramanathan ceased to hold the money in trust for the institution as and from 23 April, 1903, the date on which the hundi was executed. He seems to have continued as a trustee for some time after that and he was also a Vicharanaidar even longer. It is a common practice among Nattukottai Chettis to invest in their firms money belonging to institutions with which they are connected as well as money belonging to the ladies of their families. Such an investment is not looked upon as a breach of trust; on the contrary, it is generally regarded as a sound way of preserving the funds of the institution. The present suit is not however one based on a deposit payable on demand. The suit was framed as one for a sum of money held by a trustee; and we have no reason to think that the fiduciary relationship between Ramanathan Chettiar and the temple came to an end with the execution of Ex.B.

(3.) It was argued by the learned advocate for the respondent that Ramanathan Chettiar had no authority to collect the money and was nothing more than a usurper, who might be a trustee de son tort but not a legal trustee to whom Section 10 of the Limitation Act could be applied. We have no reason to think that Ramanathan had usurped authority. It is true that the other branch of the family was dissatisfied because he was not consulting any of them; but he was clearly acting with the authority of his branch of the family, which had an undoubted right to appoint representatives for their branch.