PUTHIA MADATHIL SUBRAMANIAM PATTER OF EANGADIYUR AMSOM AND DESAM (DIED) Vs. EANGANDIYUR DEVASWOM URALAM AUTOLI NANI AMMA?S SON KARNAVAN VELU NAIR

JUDGEMENT

(1.) This is a suit on a promissory note executed by the defendants, who are uralars of a devaswom. In the promissory-note, it is recited that the two defendants promise "in our capacity as (sic) of the devoswom to pay" and again we have the recital "the amount that has been taken in cash is due to you from the devaswom." Notwithstanding this specific recital of the liability of the devaswom for the suit debt, the lower Appellate Court has held relying on Swaminatha Aiyar V/s. Srinivasa Aiyar 38 Ind. Cas. 172 : 32 M.L.J. 259 : 21 M.L.T. 91 : 5 L.W. 323 : (1917) M.W.N. 278, that the plaintiff is entitled only to a personal decree against the uralars. Since the District Judge delivered his judgment, another case of this Court has been reported, namely, Sundaresam Chettiar V/s. Viswanatha Pandarasannadhi 72 Ind. Cas. 103 : 45 M. 703 : 31 M.L.T 66 : 16 L.W. 83 : 43 M.L.J. 147 : (1922) M.W.N. 444 : (1922) A.I.R. (M.) 402 in which the facts are identical with the present case, namely, there was a distinct undertaking in the promise made by the uralars that the money was to be re-paid out of devaswom funds, that is to say, not only did they pledge their personal credit, but they entered into a contract with the plaintiff that the devaswom funds should be liable for the re-payment of the debt. These facts distinguish the present case from that reported in Swaminatha Aiyar V/s. Srinivasa Aiyar 38 Ind. Cas. 172 : 32 M.L.J. 259 : 21 M.L.T. 91 : 5 L.W. 323 : (1917) M.W.N. 278 and also that in Ammalu Ammal V/s. Namagiri Ammal 43 Ind. Cas. 760 : 33 M.L.J. 631 : 22 M.L.T. 391 : 6 L.W. 722 : (1918) M.W.N. 110. In this latter case, the learned Judges refused to consider the question of liability of trustees of religious institutions and based their judgment on the liability of secular trustees and adopting the same argument as that adopted is the earlier case held that there was only a personal liability. This conclusion is based on the principles of English Law relating to trustees, but it is doubtful whether they are applicable in their entirety to persons like heads of mutts or managers of religious institutions who are not in the strict sense of the word trustees.

(2.) It is suggested for the respondents that because the earliest decision in Srimath Daivasikamani Pandarasannidhi V/s. Noor Mahomed Routhan 31 M. 47 : 17 M.L.J. 553 : 3 M.L.T. 95 is doubted in Swaminatha Aiyar V/s. Srinivasa Aiyar 38 Ind. Cas. 172 : 32 M.L.J. 259 : 21 M.L.T. 91 : 5 L.W. 323 : (1917) M.W.N. 278, whereas it is to a limited extent approved in Sundaresam Chettiar V/s. Viswanatha Pandarasannadhi 72 Ind. Cas. 103 : 45 M. 703 : 31 M.L.T 66 : 16 L.W. 83 : 43 M.L.J. 147 : (1922) M.W.N. 444 : (1922) A.I.R. (M.) 402 that there is a divergence of opinion between the two Benches. But Krishnan, J., in Sundaresam Chettiar v. Viswanatha Pandarasannadhi 72 Ind. Cas. 103 : 45 M. 703 : 31 M.L.T 66 : 16 L.W. 83 : 43 M.L.J. 147 : (1922) M.W.N. 444 : (1922) A.I.R. (M.) 402 merely says that he is inclined to follow Srimath Daivasikamani Pandarasannidhi V/s. Noor Mahomed Routhan 31 M. 47 : 17 M.L.J. 553 : 3 M.L.T. 95, " where the debt is not incurred purely on the personal liability of the debtors." This limitation of liabilities is the cardinal distinction between the present case and that in Swaminatha Aiyar v. Srinivasa Aiyar 38 Ind. Cas. 172 : 32 M.L.J. 259 : 21 M.L.T. 91 : 5 L.W. 323 : (1917) M.W.N. 278, where the authority of the prior decision was questioned. I am bound by the decision in Sundaresam Chettiar V/s. Viswanatha Pandarasannadhi 72 Ind. Cas. 103 : 45 M. 703 : 31 M.L.T 66 : 16 L.W. 83 : 43 M.L.J. 147 : (1922) M.W.N. 444 : (1922) A.I.R. (M.) 402 which is exactly in points and I may add that I see no reason to doubt its correctness.

(3.) I may here observe that in dealing with the facts of this case, 1 have taken one fact as assumed by both the lower Courts, namely, that there was necessity to borrow on behalf of the devaswom. That point has not been decided by either Court. It will, therefore, be necessary to remit the case to the District Munsif for decision of this issue and for final disposal in the light of the above remarks. The stamp on the appeal memo will be refunded and the costs of this appeal will abide the result.