Madras High Court
Ranga Pai And Anr. vs Baba And Anr. on 6 August, 1897
JUDGMENT
1. In this case objection is taken by the respondents' vakil to the amount of the Court-fee stamp affixed by the appellants to their petition of appeal. In our opinion the objection taken at the hearing of the appeal cannot be entertained. The mode in which any question as to the amount of any fee payable in the High Court should be determined is prescribed in Chapter II of the Court Fees Act, The 5th Section provides that any such question arising between the officer whose duty it is to see that any fee is paid and any suitor or attorney shall be referred to the taxing officer whose decision shall be final, except in cases of a reference being made by him to the Chief Justice when the decision of the Chief Justice shall be final. In the present instance there was no reference to the Chief Justice. It is suggested that the provision as to the finality of the taxing officer's decision is intended to apply only as between the appellant and the officer mentioned in the Section and that it does not prevent a respondent from questioning the decision. If this were the right construction of the Section with reference to the taxing officer's decision, it must also hold good with regard to the decision of the Chief Justice. Neither decision can, in this view, be regarded as final except as regards the party who has filed the petition of appeal or other document. We can find nothing in the language of the Section to justify this conclusion. Had it been intended to give finality of such a restricted kind to either decision, the term 'suitor' would not have been used. We must hold, therefore, that the taxing officer's decision cannot be questioned by the respondents' vakil. The cases to which we were referred are not really in point, for the Act makes a distinction between the High Court and other Courts and in those cases it was not in the High Court that the appeal out of which the dispute regarding the stamp arose had to be filed.
2. The appeal is against so much of the decree of the District Judge as dismisses the plaintiffs' suit, and objection is taken by the respondents to the remaining part of the decree which is in favour of the plaintiffs.
3. It will be convenient to deal first with the point of limitation raised by the respondents in answer to the whole suit. The plaintiffs' claim is of a twofold character. There is first the charge of breach of trust against the respondents and a prayer for an account, and secondly the allegation "that the defendants behave independently of the plaintiffs in respect of temple affairs" and a prayer for an injunction restraining the defendants from conducting the temple affairs without the co-operation of the plaintiffs. With regard to this latter head of claim the plaint is unfortunately vague, and no date is assigned to the alleged exclusion of the plaintiffs. In their written statement the defendants allege that the plaintiffs "have been refused all interference in the temple affairs and its management" since 1876, and on this they found their plea of limitation.
4. We agree with the District Judge in his conclusion on this point. It is clear from the evidence that, although the plaintiffs did not take any active part in the management of the temple, there was no absolute denial by the defendants of their right to act as trustees. On the contrary they were on occasions, for instance in 1884 after the death of Subbaraya Pai, when an acquittance had to be given to his widow, and in 1887 when a suit was being brought, associated as trustees with the defendants. As the present suit was brought in August 1890, there can be no doubt that the suit is not barred by the law of limitation, so far as the second head of claim is concerned, and no other ground was urged by the respondents' vakil for impeaching the decree granting relief in respect of this claim. As regardsthe other claim laid against the defendants, it is contended on behalf of the plaintiffs that the suit is one for which they are entitled to claim the benefit of the 10th Section of the Limitation Act and that accordingly the defendants can be made liable in respect of breaches of trust occurring at any time since they were appointed trustees. To support this contention it is necessary for the plaintiffs to make out that they are suing as representatives of the temple in order to recover for its benefit the property which belongs to it, and it was argued by the plaintiffs' vakil that that was in fact the nature of the suit. In the view we take it is unnecessary to decide the somewhat doubtful question whether Section 10 of the Act applies to a suit like the present charging breaches of trust and claiming an account. See Saroda Pershad Chattopadhya v. Brojo Nauth Bhutta charjee I.L.R. 5 Cal. 910 and Thackersey Dewraj v. Hurbhum Nursey I.L.R. 8 Bom. 432. For in our opinion the suit is really brought to vindicate the rights of the plaintiffs as co-trustees with the defendants and to protect their interest, and not, except indirectly, the interests of the temple. That this is the character of the suit appears from the very prayer for an injunction already mentioned. In respect of that prayer at least the plaintiffs cannot say that they represent the beneficiaries. We do not overlook the language of the plaint on which the plaintiffs' vakil relies. The allegation that there has been a loss to the temple and the prayer that the money due to the temple may be paid by the defendants are not inconsistent with a suit instituted by the plaintiffs on their own behalf, for it is to their own interest to rescue and preserve the property of the temple. The matter may be tested by asking whether the plaintiffs are entitled to charge against the temple the costs of this litigation. How could this possibly be allowed when it is seen that, but for the supineness of the plaintiffs, no breach of trust would have occurred and no litigation would have been necessary? It would be obviously unjust to allow the plaintiffs to figure in one character for one purpose and in another for another purpose. It might possibly be different if the defendants were not, as well as the plaintiffs, trustees of the temple but as against the plaintiffs their co-trustees the defendants have defences open to them which would not be available against third parties representing the temple. It has been urged in this case that a trustee is not at liberty to sue his fellow-trustee except under special circumstances. This is a defence which is open to the defendants as against the plaintiffs, but would of course not be open to them if they were called to account by strangers suing solely in the interest of the devasam. That one trustee may bring a suit against another charging him with breach of trust is not denied. There are precedents for such a suit, but what the plaintiffs' vakil has been unable to cite is a case in which a suit such as would ordinarily be brought by a cestui que trust has been maintained against a trustee by a fellow-trustee. We are of opinion that the present suit cannot be regarded as a suit brought by the cestui que trust. It is a suit arising out of differences between the four trustees which in an incidental way only can benefit the temple. Such a suit we do not think can be regarded as within the operation of Section 10. Applying then the ordinary law of limitation we have to see whether the plaintiffs' claim founded on alleged breaches of trust is barred in whole or in part.
5. Some of the charges relate to acts done and moneys expended before the death of Subbaraya Pai; others relate to matters occurring after that date and within six years of the time when the suit was brought. The suit is in our judgment barred so far as it relates to the former charges, for Subbaraya Pai died in July 1884 more than six years before the suit was brought. Independently of the bar of limitation, the defendants have another answer to the charges relating to the management of the temple affairs in Subbaraya's lifetime. As we have already said it is not in every case of breach of trust that one trustee is enabled to sue another, see Bahin v. Hughes I.L.R. 31 Ch. D. 390 and Section 27 of the Indian Trusts Act. When the breach of trust is equally imputable to two trustees, obviously no such suit can lie. and where there are three trustees and the management of the business has been left exclusively to one of them, it is clear that as between the other two, who are equally innocent, though they may be equally responsible to the cestui que trust, there can be no suit instituted. In both of these cases the parties are in pari delicto. In the present case it is part of the defendants' case and it is otherwise clear from the evidence, that Subbaraya Pai was until his death in exclusive management of the affairs. Against him or his representatives it may be that a suit could have been successfully brought by the other trustees. But the defendants have not been shown to be any more responsible for his acts than the plaintiffs themselves. Both plaintiffs and defendants have apparently neglected their duty. For these reasons we think the plaintiffs must fail so far as they seek to make the defendants responsible for breaches of trust which occurred in the lifetime of Subbaraya. If it were necessary to go into the question, we should be unable to agree with the Judge that the costs of litigation carried on by Subbaraya Pai could properly be charged against the temple fund.
6. It remains for us to deal with the other charges which form the subject of the fourteenth and following issues. The facts for the most part are admitted. Except in certain instances specially mentioned below, there is evidence to show that the defendants are responsible for the other acts and defaults of which the plaintiffs complain. On the other hand, there is no evidence to implicate the plaintiffs. The only question therefore is whether those acts constitute breaches of trust on the part of the defendants. The District Judge has considered that it is sufficient answer for the defendants to make to these charges to say that they acted with the consent of the community. He refers to this ground of defence in connection with almost all the charges laid against the defendants. In our opinion this defence cannot be allowed to prevail for two reasons. In the first place it is not proved satisfactorily that the community did sanction the several acts of the defendants, and secondly, if such sanction was given, it would not excuse the defendants, if otherwise they had been guilty of breach of trust. This must clearly be so, for the trustees of the temple were not appointed by the community. They were all appointed under the Act of 1863 by the committee, and to the committee they are responsible for their conduct. The fact that the community have approved the acts of the trustees may be evidence that such acts were not improper but we fail to see how in any other way their approbation or consent can qualify the character of the defendant's acts.
7. The first act charged against the defendants is the remission of Rs. 200 arrears of rent due by a relative of the two defendants. There is then a remission of Rs. 183-5-4 and further a remission of Rs. 539 on a document executed by one of the defendants, Raghunatha Kini. These acts of the defendants, especially when regard is had to the persons who were benefited by them, are so clearly detrimental to the interests of the temple that it would be difficult to justify them. No attempt, however, has been made to prove any special circumstances; there is the alleged approval of the community and that is considered by the District Judge sufficient justification. Apparently he was under the impression that actual fraud must be proved against the defendants to make them liable. Clearer evidence of breach of trust than is given with regard to the charges embraced in the fourteenth issue can hardly be conceived.
8. The charges embraced in the fifteenth issue are similar in kind and the observations just made apply to them. Here again one of the persons benefited by the remission is a relative of the defendants. These charges we must also hold to be established. The sixteenth issue relates to matters which happened in Subbaraya's time. The plaintiffs must therefore fail in respect of that issue. The seventeenth issue relates to debts due to the temple and not collected by the defendants. The findings on this issue are not very clear, but we cannot say that the Judge has erred with regard to it. As to many of the debts it is not shown that the defendants are to blame for the non-collection. The eighteenth issue embraces three matters. The first is a remission of Rs. 280 in favour of a cousin of one of the defendants. No justification is offered. This charge must be allowed. The second is a matter which occurred in Subbaraya's time. This charge must be disallowed. As to the third we must confess that we do not understand the charge. Nor do the observations of the Judge upon it give us any definite information. No particulars of these alleged breaches of trust were given by the plaintiffs, and it is only from the issue that we gather the nature of them. We are referred to the answers to the interrogatories but the interrogatories themselves are not before us. Failing any definite evidence we must disallow this charge.
9. In the result we must allow the appeal in respect of the items as to which we have found the defendants chargeable. There will be a decree for the sums named by the Judge and allowed by this judgment with interest at six per cent, from the date when the remission in each case was made. The appellants are entitled to costs in this and in the Court below proportionate to the sums which will be decreed to them. The memorandum of objections is dismissed with costs.
10. Before drawing up the decree we must ask the District Judge to find on evidence now on record with regard to the fifteenth issue, what is the amount lost to the temple by the breaches of trust mentioned in that issue? The finding must be submitted within six weeks from the date of the receipt of this order, and seven days will be allowed for filing objections after the finding has been posted up in this Court.
11. The District Judge having submitted his finding in compliance with the above order objections were taken by the parties and the Court called for a further finding making, inter alia, the following observation "with reference to the time as to which the loss has to be calculated, it is to be observed that prospective loss as well as past has to be provided for, for no second suit can be brought."
12. This appeal coming on for final hearing, the Court delivered the following judgment:
13. In addition to the amount mentioned in the original judgment the plaintiffs are entitled to the sum of Rs. 64 and also to the sum of Rs. 2,770-5-6 representing the loss of interest on the sum of Rs. 10,250 at 2 1/2 per cent, from 11th September 1886 to the 3rd July 1897. That disposes of the case.