ZAKKA PATTABHIRAMA REDDI Vs. MENAKUR BALARAMI REDDI

JUDGEMENT

(1.) In Vedakannu Nadar V/s. Nanguneri Taluk Singikulam Annadana Chatram ( 38) 25 A.I.R. 1938 Mad. 982 a Bench of this Court held that a de facto trustee is in no better position than a trustee de son tort and cannot maintain an action on behalf of the trust, even should it be for the benefit of the trust. This opinion is said to be in conflict with the judgment of this Court in Kasim Saiba V/s. Shudindra Thirthaswami ( 95) 18 Mad. 359 and of the Calcutta High Court in Sheo Shankar Gir Vs. Ram Shewak ( 97) 24 Cal. 77. The appeal has been placed before a Full Bench as Chandrasekhara Aiyar J. before whom it came in the first instance, was of opinion that it involved consideration of these decisions. When the facts of the case are fully appreciated, it is apparent that the appeal does not call for such a discussion. The shrotriem village of Jonnavada in the Nellore district belongs to two dieties, Sri Mallikarjunaswami and Sri Kamakshi Thayi, At the inam settlement the ownership of the village by these dieties was recognized. In Original suit No. 52 of 1917 of the Court of the Subordinate Judge, Nellore, a scheme was settled for the management of the temple (which is a non-excepted temple) and of its endowments. Five trustees were appointed for a period of five years and the scheme provided that the Court should appoint new trustees every five years. The period of office of the trustees first appointed expired on 1 May 1929. On 3rd January 1929, one of the three trustees who were then functioning induced the Subordinate Judge to pass this order: Under Section 75 of Act 2 of 1927 the scheme in force now is to be deemed as one settled under the Act and as it does not provide for appointment of trustees by the Temple Committee, Section 51(2) has no application. If the scheme requires modification so as to bring it into conformity with the provisions of the Act, the course to be adopted is that provided for Under Section 57 (4). Pending such modification the three trustees will have to carry on the management of the temple.

(2.) The Court had no power to give this direction, but even if it had, the powers purported to be conferred upon the three trustees expired on 13 May 1930, when the District Temple Committee appointed new trustees under the authority conferred by Section 51, Madras Hindu Religious Endowments Act (Act 2 of 1927). The trustees who were appointed under the scheme had certainly no right to continue in management of the trust after the appointments which were made by the District Temple Committee on 13 May 1930, but they refused to hand over possession to the lawfully appointed trustees and continued to hold themselves out as the trustees of the temple. On 8 August 1935, the Madras Hindu Religious Endowments Board as it had the power to do appointed a new board of trustees. The members consisted of the two plaintiffs and defendant 2 in the suit which has given rise to this appeal. Even then the trustees appointed under the scheme refused to give possession of the trust properties to the trustees appointed by the board, who were compelled to apply to the District Court Under Section 78 of the Act for an order for possession. The order asked for was granted and enforced.

(3.) On 17 July 1933, the trustees appointed under the scheme purported to grant to defendant 1 a lease of the village of Jonnavada for a period of five years. At that time they were in unlawful possession of the property, as the District Temple Committee had exercised its powers Under Section 51 of the Act. When the plaintiffs were appointed trustees by the board and had taken action Under Section 78 they sought possession of the property from defendant 1. He claimed that, as he was in possession of the property on 30 June 1934, he had obtained a permanent right of occupancy by reason of Section 6, Madras Estates Land Act, 1908, as amended by the Madras Estates Land Third (Amendment) Act, 1936. The result was that the plaintiffs were compelled to file the present suit in the Court of the Subordinate Judge, Nellore. The lands covered by the lease comprised 17.66 acres of wet lands, 61.63 acres of dry lands and 321.17 acres of pasture lands. The Subordinate Judge held that defendant 1 had acquired a permanent right of occupancy in the wet and dry lands, but not in the pasture lands in respect of which he granted the plaintiffs a decree. The plaintiffs appealed to the District Judge, who held that the Subordinate Judge had erred in refusing them a decree in respect of the dry and wet lands. This appeal is from the decree passed in the appeal to the District Judge.