RAJA DAMARA KUMARA THIMMA NAYANI BAHADURGARU, ZEMINDAR OFKALAHASTI AND TRUSTEE OF THE KALAHASTI TEMPLE Vs. PRGANAPATHI IYER, SECRETARY, DHARMARAKSHANA SABHA

JUDGEMENT

(1.) The suit in which the appeal arises was instituted under Section 92 of the Code of Civil Procedure against the defendant, the Raja of Kalahasti, who is the hereditary trustee of the Kalahasti temple and its endowed property. By a preliminary decree the Subordinate Judge who tried the suit ordered accounts to be taken from Faslis 1315-1320 and objections have been taken before us, in the first place, to a number of items in the accounts as finally settled by the Court of first instance. Then there is the important question whether the order suspending the defendant from the office of trustee until he pays certain debts due to the temple is right. The contention of the appellant, the defendant in the suit, is that the order of suspension ought to be set aside altogether, while the plaintiffs contend that the defendant should be removed from his office

(2.) We shall first deal with the items of account to which objections have been taken on one side or the other. It is necessary to state that this temple was founded and endowed by the Raja of Kalahari, and the properties which formed the endowment are mainly the village of Kalahaati, and half of two other villages. There are also operation Rusums and Meraha which are payable to the temple by the tenants of the Kalahasti Zemindary. Incorporated with the temple properties are the funds called Ubhayam funds, which have been endowed by various persons with the object that certain festivals may be held in their honour in the temple with the income of those funds. There are also the collections made in the temple and the offerings. The entire income may be taken to be about Rs. 10,000 or so a year.

(3.) The Zamindary of Kalabasti as well as the trust property in the suit were under the management of the Court of Wards from 1899 till August 1905 on the ground of incapacity of the defendant. It was then handed over to him apparently because the Court of Wards found it a hopeless task to clear the Zamindary from, debts. Accounts have been taken from 1905 till 1910; when the Court of Wards made over the trust property to the Rajah, there was a sum of Rs. 37,000 due to the temple from the previous trustees, the predecessors of the defendant, and a sum. of about Rs. 8,000 in the hands of the Court of Wards on account of Ubhayam. This Rs. 8,000 was handed to the defendant, but it appears that he used the amount for his own personal purposes and executed a mortgage on some of the Zemindary properties for that sum plus Rs. 37,000 which was already due to the trust. The mortgage is Exhibit C and it was executed on the 22nd August 1905. It may be mentioned at once that the Subordinate Judge has acquitted the defendant of all charges of dishonest misappropriation of the trust funds, and in fact those charges at the time of trial were not pressed be-~ fore him. He has found, however, on taking accounts under various beads that altogether a sum of about Rs. 11,000 or thereabouts was due by the defendant to the temple. At the same time the Subordinate Judge found, that the defendant spent something like Rs. 17,800 in performance of ceremonies and festivals in connection with the temple over and above the income of the temple property. He says, however, that the Raja was not entitled to have credit for this amount as against what has been found due from him. In dealing with the accounts an important fact to be borne in mind is that the defendant never kept any separate account of the trust property and the ex-penditure in connection with the temple except as to the offerings and Hundi- collections. So far as the income of the landed property was concerned and especially of what was received by way of Rusums and Merabs, there was no separate account; what was receivable by the temple was mixed up with the Zemindar s private account. There is also the fact that the defendant did not produce all the books of account, such as they "were, which would have shown what was the amount under certain heads to which the temple was entitled as distinguished from what was received by the Zemindar on his own personal account from the Zemindary. The learned Vakil for the appellant has emphazized the fact that, if the defendant did not keep any separate account, he was only following the practice of his predecessors and of the Court of Wards which had the management of the property for several years. But that is no excuse in law for the defendant not keeping the moneys belonging to the temple entirely separate from his own moneys and if any difficulties in taking accounts have arisen owing to this fact, every presumption is to be made against the defendant and in favour of the trust. I shall take the items in the order of the argument before us.