PANDURANG Vs. GUNWANT RAO

JUDGEMENT

(1.) 1. This suit is under Section 92, Civil P.C., regarding a Trust called "Payoshni Mata Sansthan". situated at mauza Paradh in the Murtijapur taluq. The plaintiffs contend that the Trust is public charitable and religious, owning two fields, Survey No. 13 and Survey No. 16, pot hissa No. 1. The former field was gifted to the Trust by one Raoji Mali on 31st July 1912, and the latter purchased by the Trust in 1921. The plaintiffs charge the defendants with failing in the purpose of the Trust, with mismanagement and with wrongfully disposing of cattle belonging to the Trust. Defendant 1, Gunwant Rao, has been the principal manager and he is accused of misappropriating the funds during his management from 1905 to 1921. He has kept no accounts. He has purchased Survey No. 16, pot hissa No. 1, out of the rent of the other field received from 1915-16 to 1918-19, but has not accounted for the rest of the rent. It is also stated that he has to account for Rs. 600 received by him for the Trust from one Motisa on 25th May 1917. The plaintiff's case is that this defendant has received Rs. 6,500 and they ask him for an account of this and for his removal.

(2.) DEFENDANT 1 contends that he managed the Sansthan from 1912-13 to 1918-19 with others and then left the management owing to his going to live in another village. He leased Survey No. 13 for 1912-13 and 1913-14 for Rs. 200 a year and in 1914-15 leased it for five years to Motisa, who paid only the first year's rent. He admits getting Rs. 600 from Motisa on 25th May 1917, a sum paid to remove kundha from the field. Rs. 300 of this he spent in removing kundha and the balance on Suit No. 420 of 1921 he filed against Motisa for recovery of the rent. Out of the other income he spent Rs. 125 for defending Suit No. 463 of 1912 in the Court of the Junior Sub-Judge, Akola, brought by the donor of Survey No. 13. He also paid the Government assessment of the land every year and spent Rs. 500 for the feast of the Sansthan in Pus 1916. Thus he had spent all that he received. When he left, the management was taken over by one Baliram, since dead. Defendants 2 and 3 were proceeded against ex parte. Defendant 4 wanted to remain a trustee but had no objection to the removal of defendant 1 from the Trust. The plaintiffs denied that Rs. 500 had been spent on the Bhandara feast and said that defendant had recovered Rs. 250 a year as rent from one Gotya for 191920 and 1920-21. They denied the spending of Rs. 300 for the removal of the kundha and contended that there were 17 animals belonging to the Trust and that defendant 1 had sold 12 of these for Rs. 1,000 and had five worth some Rs. 350 with them. They denied that Baliram managed the estate. (After narrating the issues, the judgment proceeded.) The findings of the Court below may be summarized as follows : That defendant 1 did not recover the rents for 1919 20 and 1920-21 as alleged. He was not the manager after 1919. Defendant 1 had no cattle belonging to, the Trust and disposed of none. He spent Rs. 38 in O.S. No. 463 of 1912. He paid Rs. 39 per year as land revenue. In 1916 he spent Rs. 450 on the Bhandara, Rs. 300 on removing kundha, and Rs. 203-8-0 in Suit No. 42 of 1921. He was never asked to account and never refused to do so. He was not accountable for interest. The sanction to the suit is not defective. The Judge found that defendant 1 had received from the Trust Rs. 1,250 and he had spent : Rs. 38 on Suit No. 463 of 1912; Rs. 273 for land revenue; Rs. 450 on the bhandara; Rs. 300 for eradicating kundha; and Rs. 203-8-0 on Suit No. 42 of 1921, thus spending Rs. 1,264-8-0 and now owes nothing to the estate. The Judge then proceeded to draw up a scheme of management which has not been objected to in this appeal. The costs of the suit were directed to be paid from the estate, defendant 1 paying his own costs.

(3.) DEFENDANT 1 had kept no accounts and this raises a presumption against him. He admitted in the enquiry before the Tahsildar that he and Baliram leased out Section No. 13 to Gotya Mahar for these two years for Rs. 250 a year, but the lease money was taken by Baliram. The leasing out of this field was a distinct act of management on behalf of the Sansthan, and it is difficult to understand, if defendant 1 had abandoned his position as manager, why he should have admittedly taken part in the leasing of the field. It is significant that no written lease is forthcoming. Gotya (D.W. 4) is defendant 1's creature. He is a kamdar mahar at the village where defendant 1 was patel and where his son is patel now. He also speaks to the removal of the kundha for Rs. 300, a statement I will presently show is absolutely false. The witness has given evidence before for defendant 1. It clearly lay on defendant 1 to show when he relinquished his trusteeship. His story is he left in 1918, but we find him dealing with the Trust property the next two years, and he must have been instrumental in bringing about the compromise in the suit filed against Kamalbai, the heir of Motisa in 1921, a suit which obtained Section No. 16, pot hissa 1, for the Trust. That suit, as will be shown later, was partly false. He states that Baliram compromised the suit and he consented to it. Why was his consent necessary unless he was still one of the Trustees? It is admitted that though he states he handed over the management to Baliram he retained whatever Trust money he had with him.