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PETITIONER: B.K.C. MURUGA KONAR (DEAD) BY LRS. & ORS.

       Vs.

RESPONDENT: V. SETHA KONE & ORS.

DATE OF JUDGMENT01/09/1989

BENCH: KANIA, M.H. BENCH: KANIA, M.H. THOMMEN, T.K. (J)

CITATION:  1989 AIR 2102            1989 SCR  Supl. (1)   1  1989 SCC  Supl.  (2) 612 JT 1989 (3)   671  1989 SCALE  (2)531

ACT:     Tamil  Nadu  Hindu Religious and  Charitable  Endowments Act,  1959---Sections 6(20) and 108--Suit for  rendition  of Accounts  in  respect  of  "Temple"--Private  Temple--Public religious endowment--What is--Suit whether maintainable.

HEADNOTE:     This is defendant’s appeal by Special Leave. Respondents 1  to  5 alongwith one other person filed  a  representative suit   on  behalf  of  themselves  and  other   members   of Thousand--Yadhava   Community  against  the  appellant   No. 1--Defendant  for  an  order directing him  to  render  true accounts  of the management of the properties of  the  Thou- sand--Yadhava  Community  including  the  Sri  Ramasami  Sri Navneetha Krishnasami Devasthanam Temples and their  proper- ties  and pay to them the amount ascertained as  payable  on such rendition of accounts. The appellant was the Trustee of the said temples. The case of the plaintiffs-respondents was that the said temples were private religious trusts and  the appellant  as trustee had committed several acts of  misman- agement in respect of the properties.     The  appellant  defendant denied those  allegations  and contended  that the suit as framed was not  maintainable  in view of the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.     The  Trial  Court dismissed the suit. It held  that  the said temples were not private temples belonging to the  said community,  and  that both the temples were covered  by  the provisions of section 6(20) of the Act, and as such the suit was  barred by the provisions of the Act and thus not  main- tainable. The plaintiffs preferred appeal to the High  Court against the order of the Trial Court. The High Court allowed the  plaintiffs  appeal  and  passed  a  preliminary  decree against  the  appellant  No. 1-defendant  for  rendition  of accounts  while dismissing the suit in other  respects.  The High  Court  took the view that a party  seeking  relief  of accounting  cannot approach the Deputy Commissioner  or  any other authority under the Act and hence the Civil Court  was not barred either expressly or by necessary implication from entertaining the suit so far 2

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as  it  was for accounting. However the High Court  did  not decide  the question as to whether the Temples were  private temples or could be regarded as public religious endowments. Defendant No. 1 filed the appeal, by special leave. Dismissing the appeal, this Court,     HELD:  There  is no doubt that in respect  of  a  public trust, beneficiaries as a class can file a suit against  the Trustee for rendition of accounts subject to the bar imposed by Section 92 of the Code of Civil Procedure 1908. [5H; 6A]     Chapter  VIII of the Act has no bearing on the  question of  the  liability of a trustee to render  accounts  to  the beneficiaries  as a group or class and it does  not  provide for  determining  or deciding a dispute in respect  of  such rendition of accounts and hence, Section 108 of the said Act does not bar a suit like the one filed by Respondent No.  1. [6H; 7A-B]     Sri  Vedagiri  Laxmi Narasimha Swami  Temple  v.  Induru Pattabhirami Reddy, [1967] 1 SCR 280, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1045  of 1972.     From the Judgment and Order dated 7.2.1972 of the Madras High Court in Appeal No. 549 of 1963. K. Ramkumar for the Appellants.     K. Raj Choudhary, B.R. Agarwal and Ms. Sushma  Manchanda for the Respondents. The Judgment of the Court was delivered by     KANIA,  J. This is an appeal by Special Leave against  a judgment of a Division Bench of the Madras High Court deliv- ered on February 7, 1972.     Respondents  Nos.  1 to 5 along with  one  other  person filed  a  representative suit on behalf  of  themselves  and other members of the Thousand-Yadhava Community residing  in Ramayanachavadi  Street  and the other  adjoining  lanes  in North  Masi  Street,  Madurai Town  and  adjoining  villages against original appellant No. 1 herein, for an order 3 directing  him  to render true and proper  accounts  of  the management of the properties of the Thousand-Yadhava  Commu- nity  including the Sri Ramasami Sri Navaneetha  Krishnasami Devasthanam  Temples and their properties and to pay to  the plaintiffs the amount ascertained as payable on such  rendi- tion  of accounts with interest and other reliefs.  Original appellant No. 1 herein was the trustee of the said  temples. He died during the pendency of the appeal before us and  his two  sons have been joined as appellants Nos. 1(i) to  1(ii) in this appeal.     We propose to refer to the parties by their descriptions in the suit for the sake of convenience.     Very  briefly stated, according to the  plaintiffs,  the said temples were private religious trusts and the defendant had  committed several acts of mismanagement in  respect  of the  properties  of the said trusts.  The  defendant  denied these  allegations. He, inter alia, contended that the  suit as framed was not maintainable in law, in view of the provi- sions  of  the  Tamil Nadu Hindu  Religious  and  Charitable Endowments  Act, 1959 (hereinafter referred to as "the  said Act.").  The  Trial Court dismissed the suit on  the  ground that  it was barred by the provisions of the said  Act.  The Trial  Court  held that the said temples  were  not  private temples belonging to the aforesaid community, namely,  Thou- sand-Yadhava  Community. The Trial Court took the view  that

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the Thousand-Yadhava Community must be regarded as a section of  the  Hindu Community and in that case both  the  temples would  be covered by the provisions of section 6(20) of  the said Act. Sub-section (20) of section 6 defines the  meaning of  the word ’temple’ for the purpose of the said  Act  and, very briefly stated, lays down that it is a place used as  a place  of public religious worship and dedicated to  or  for the  benefit of the Hindu Community or any section  thereof, as a place of public religious worship. The Trial Court took the  view  that,  although this question  could  be  decided primarily only by the Endowment Board and Civil Court has no jurisdiction  to go into it, it could go into that  question incidentally  as  was done by the Trial Court. As  a  conse- quence  of  this conclusion, the Trial Court held  that  the suit  was barred by the provisions of the said Act  and  was not maintainable at law. The plaintiffs preferred an  appeal against  this decision to the Madras High Court. A  Division Bench  of the Madras High Court after examining  the  provi- sions  of  the said Act held that the Trial  Court  was  not right in dismissing the suit in toto even with regard to the relief of accounting. The High Court held that defendant No. 1 (original appellant before us) admitted that he was elect- ed  in 1949 as the trustee of the said temples at a  meeting of the members of the community. The 4 said  Act  does not contain any provision for  rendition  of accounts.  A party seeking relief of accounting  cannot  ap- proach the Deputy Commissioner or any other authority  under the said Act and hence, the Civil Court is not barred either expressly  or by necessary implication from  entertaining  a suit  in  so  far as it was for the  relief  of  accounting. Following upon this reasoning, the court allowed the  appeal and passed a preliminary decree against defendant No. 1  for rendition of accounts while dismissing the suit in all other respects.     The  High  Court did not decide as to whether  the  said temples were private temples or could be regarded as  public religious  endowments falling within the definition  of  the term ’temple’ as defined in sub-section (20) of section 6 of the said Act. Defendant No. 1 along with some others filed a petition for Special Leave before this Court and by an order dated  April  24, 1972. Special Leave was  granted  by  this Court but was confined to the question whether it was within the power of the Civil Court to direct accounts to be  taken without deciding the question whether the temple is a public temple or a private temple.     At  the hearing of the appeal before us, Mr. Ram  Kumar, learned Counsel for the appellants conceded that if the said temples were private temples as contended by the  plaintiffs in the said suit, the defendant as the trustee was liable to render accounts of his management of the said trust to  them as beneficiaries. It was, however, submitted by him that  in case  the  said temples were not private  temples  but  were temples  as defined in sub-section (20) of section 6 of  the said Act to which we have already referred earlier, the suit for  rendition of accounts was not maintainable in  view  of the provisions of the said Act and hence, it was not open to the  High  Court to have passed a decree  for  rendition  of accounts  without  deciding whether the  said  temples  were public temples or private temples. He drew our attention  to sub-section (20) of section 6 of the said Act which  defines the  term ’temple’ for the purpose of the said Act. We  have already  referred to that definition of the said term  ’tem- ple’  earlier.  Suffice  it to state here  that  under  that definition only public temples of the nature stated  earlier

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could be regarded as temples. Sub-section (17) of section  6 defines the term ’religious endowment’ or ’endowment’ and it is sufficient for the purpose of this appeal to note that it means  property  belonging to or given or  endowed  for  the support of maths or temples for the purposes set out  there- in. Section 108 of the said Act runs as follows. 5               "108.  Bar of suits in respect of  administra-               tion  or management of religious  institutions               etc.                        No suit or other legal proceeding  in               respect of the administration or management of               a religious institution or any other matter or               dispute  for  determining  or  deciding  which               provision is made in this Act shall be  insti-               tuted in any. Court of law, except under,  and               in  confirmity  with, the provisions  of  this               Act." Section  63  of  the said Act deals with the  power  of  the Deputy  Commissioner to hold inquiries into and  decide  the disputes and matters set out therein. It inter alia  confers on  him the power to hold inquiries in connection  with  the property and funds of the temples within the meaning of  the said  Act. Against the order of the Deputy Commissioner,  an appeal is provided under section 69 to the Commissioner  and section  70  lays down that a person aggrieved by  an  order passed  by the Commissioner under the provisions set out  in clauses  (i) and (ii) of sub-section (1) thereof can file  a suit  in a Civil Court. Sub-section (2) of section  70  pro- vides that an appeal shall lie to the High Court against the decree  of the Civil Court under sub-section (1) of  section 70.  Chapter  VIII of the said Act deals with the  topic  of Budgets,  Accounts  and Audit. Section 87 of  the  said  Act provides  that  the trustee of every  religious  institution shall  keep regular accounts of all receipts  and  disburse- ments and provides that these accounts have to be audited by the  auditors  appointed in a prescribed manner.  After  the audit is completed, the auditor is required under section 88 to  send a report to the Commissioner or the Deputy  Commis- sioner  or the Assistant Commissioner as  provided  therein. Section 90 deals with the rectification of defects disclosed in the audit and order of surcharge against trustee etc.  It is.interesting  to note that sub-section (6) of  section  90 provides  that  an  order of surcharge  under  this  section against a trustee shall not bar a suit for accounts  against him  except in respect of the matters finally dealt with  by such order.     In  the appeal before us a perusal of the  plaint  shows that  the  suit was filed not on behalf  of  any  particular beneficiary  or  group  of beneficiaries but  by  a  certain persons  claiming  to belong to the  beneficiary  community, namely,  the Thousand-Yadhava Community, and the suit was  a representative  suit instituted on behalf of themselves  and other  members of the community. There is no doubt  that  in respect of a public trust, beneficiaries as a class can file a  suit against the trustee for rendition of accounts,  sub- ject to the bar imposed by. 6 section 92 of the Code of Civil Procedure, 1908. It was with a  view  to  prevent’ reckless  and  harassing  suits  being brought  against the trustees of public trusts that  section 92  was  enacted requiring that two or more  persons  having interest  in the suit could institute such a suit only  with the consent in writing of the Advocate General. However,  we find that in view of the provisions of section 5 of the said

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Act, sections 92 and 93 of tile Code of Civil Procedure have ceased to apply to the Hindu Religious and Charitable Endow- ments  in  the  concerned State. Hence  the’  bar,  if  any, to .the institution of a suit like this has to be found only in the provisions of the Act. We have already set out earli- er  the provisions of section 108 of the said Act  which  is analogous  to section 93 of the Madras Hindu  Religious  and Charitable Endowments Act, 1951 (hereinafter referred to  as "the said Act of 1951") which was repealed by the said  Act. Many of the powers of the Deputy Commissioner under the said Act to which we have already referred earlier are similar to the powers conferred by section 57 of the said Act of  1951. Sections  63  and  64 of the said Act which  deal  with  the powers  of the Deputy Commissioner are in pari materia  with the  provisions  of sections 57 and 58 of the  said  Act  of 1951.  Section 90(6) of the said Act provides that an  order of  surcharge  under this section made against  the  trustee shall not bar a suit for accounts against him and we find  a similar  provision in sub-section (7) of section 74  of  the said  Act of 1951. The schemes of the two Acts  are  largely similar.  In  Sri Vedagiri Laxmi Narasimha Swami  Temple  v. Induru Pattabhirami Reddy, [1967] 1 SCR 280 a question arose before this Court as to whether a suit by the present  trus- tee  against the previous trustee of a temple was barred  by reason  of  the provisions of the said Act of 1951.  It  was argued  in  that case that the Act in  question  provides  a complete  machinery for deciding disputes in regard  to  ac- counts  and,  therefore, no suit for accounting  against  an ex-trustee  can  be  filed at all in a  Civil  Court.  After analysing the scheme of the said Act of 1951, and the provi- sions  of the relevant sections of that Act, which  we  have referred to earlier that argument was rejected by a Division Bench of this Court. It was pointed out by Subba Rao,  C.J., who  delivered the judgment of this Court that the scope  of the auditor’s investigation is limited. It is only an effec- tive substitute for the trustee himself furnishing an audit- ed account. It was held that Chapter VII of the said Act  of 1951 only provides for a strict supervision of the financial side of the administration. Chapter VII does not provide for determining a dispute in respect of rendition of account and does  not bar a suit for that relief. Section 74(7)  of  the said  Act  of 1951 was not a bar to the  maintainability  of such  a suit. The same reasoning applies to the case  before us.  In  our opinion, Chapter VIII of the said  Act  has  no bearing on the ques- 7 tion of the liability of a trustee to render accounts to the beneficiaries  as a group or class and it does  not  provide for  determining  or deciding a dispute in respect  of  such rendition of accounts and hence, section 108 of the said Act does  not bar a suit like the one filed by respondent No.  1 before  us. We are of the view that the High Court  did  not commit  any error in passing a decree for rendition  of  ac- counts without deciding the question whether a temple was  a public or private trust.     In  the result, the appeal fails and is  dismissed  with costs  fixed at Rs.2,000 to be divided between the  respond- ents equally. Y.  Lal                                         Appeal  dis- missed. 8