GARUDA SANYASAYYA Vs. NERELLA MURTHENNA

JUDGEMENT

(1.) This is a suit for the removal of the 1st defendant from the trusteeship of a certain charity and for settling a scheme - of management. The District Judge directed his removal and framed a scheme. In the appeal to this Court a large number of questions were argued. We agree in the main with the conclusions on facts come to by the learned District Judge. We hold that there was a dedication of the choultry to charity under Ex. E. We see no vagueness in the trust-deed and we further agree with the District Judge that the whole of the choultry, not simply a portion of it, was dedicated to the charity.

(2.) Mr. Narayanamurthi argued two questions of law, on which it is necessary to say a few words. We do not agree with him that the plaintiffs are not entitled to institute the suit under Section 92 of the Civil Procedure Code, They are residents of the locality in which the choultry is situated and are members of the community for whose benefit the charity was founded. In our opinion, these facts give them sufficient interest to institute the suit. The second question relates to the liability of the 1st defendant for the application of the funds of the charity by his grandfather and father. It was strenuously argued before us that the 1st defendant is not liable because his father and grandfather must be deemed to have criminally, misappropriated the funds. The facts are, the grandfather fcr sometime conducted the charity. Later in his life, he neglected it and appropriated the income to his own use. The father who was under the deed of trust entitled to the office of the trustee never applied the inbome for purposes of charity. In our opinion the exceptions contained in the text of Usanas quoted by Vignaneswara do not cover the present case.

(3.) After enumerating in the same language as the other Eishis the categories of father s debts for which the sons are not liable, Usanas and Vyasa add a supplementary category of debts which are Avyavaharika and Vignyaneswara follows him in this. There has been much difference of opinion as to the meaning to be given to this word. Literally it means not usual or businesslike but having regard to the context and to the fact that this category was introduced by these two Eishis alone as supplementary to the categories given by the majority of the Eishis most of which relate to debts of an objectionable character, we agree with Mooker-jee, J., in Chhakauri Mahton v. Ganga Prasad (1911) I.L.R. 39 C. 862, 869, in preferring Colebrooke s translation " not opposed to good morals.", The decision in Durbar Khachar v. Khachar Harsur (1908) I.L.R. 32 B. 348, strongly relied upon by the learned Vakil for the appellant seems to have been doubted in Ramakrishna Trimback v. Narayan (1915) I.L.R. 40 B. 126, and has not been accepted as good law in Chhakauri Mahton v. Ganga Prasad (1911) I.L.R. 39 C. 862, 869, and in Sumer Singh v. Liladhar (1911) I.L.R. 33 A. 472, and Venugopala Naidu v. Ramanadhan Chetty (1912) I.L.R. 37 M. 458. We prefer to follow these latter decisions. At the same time we are not prepared to say with Sadasiva Aiyar, J., in the latter case that every obligation "which is supportable as valid by legal arguments and on which a right could be established in the creditor s favour in a court of justice," will be binding on the son. It was the duty of the trustees to collect the income and their subsequent misappropriation of it does not affect the liability to account which they incurred by reason of the collection. The fact that the misappropriation amounted to a criminal offence appears to be irrelevant.