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Judgment
Govinda Pillai, J.—This appeal is by Defendants 1 to 3 against the decree in O.S. 2 of 1117 of the District Court, Nagercon. The suit was by the trustees of the Kottar Pattariya Samuaayam to set aside Ex. AB lease deed for the plaint properties executed by Defendants 9 and 14 to 19 in favour of the 3rd Defendant and for recovery of possession of the properties with arrears of pattom. The 3rd Defendant as Plaintiff had filed O.S. 86 of 1116 in the same Court for an injunction to restrain the Defendant in that case, among whom are the Plaintiffs in O.S. 2 of 1117, from committing any breach of the terms of the identical lease deed. Ex. AB executed in his favour and interfering with his possession and enjoyment of the proper-ties till the expiry of the term provided therein. These two suits were tried together and the evidence was let in in O.S. 2 of 1117. The leading judgment was written in O.S. 2 of 1117 which was decreed with certain modifications and subsequently O.S. 86 of 1116 was dismissed. The appeal by the Plaintiff against the decree in O.S. 86 of 1116 is A.S. 248 of 1124. Both these appeals were heard together.
The Plaintiffs in O.S. 2 of 1117 alleged that themselves and Defendants 4 to 23 are members of the Kottar Pattariya Samudayam, that a scheme had been formulated in O.S. 57 of 1103 of the District Court, Nagercoil, for the administration of the temple belonging to that community and the properties attached thereto, that the preliminary decree was passed on 21-3-1115 in that case, that the final decree was passed on 28-13-1115, that pursuant to the directions in the final decree, Plaintiffs 1 and 3 to 5 and one Kolappa Ariyar were elected trustees, that on the death of Kolappa Ariyar, the 2nd Plaintiff was elected in his place, that the plaint properties which belonged to the trust were leased out to Defendants 1 and 2 in 1101 under two lease deeds Exts. LXXXIX and XCII by one Velayudhan Subramanian and Defendants 4 to 7 for a term of 7 years, that as Velayudhan Subramanian and remaining trustees did several acts against the in terests of the trust, they were removed from office and new trustees elected in 1103, that after time the new trustees were not allowed to function by the trustees removed, that subsequently O.S. 57 of 1103 came to be instituted for the framing of the scheme in which the present Defendants 1 and 2 were impleaded as Defendants 80 and 81, that these Defendants had not settle their accounts with the trust, that after the termination of the term stipulated in the lease Defendants 8 to 13 and one Sivagurunathan(sic) Ariyar and Velayudhan Subramonian executed lease deed Ex. AA for the plaint properties in favour of the 3rd Defendant for a period of 7 years at an annual Pattom of 50 kottas of paddy that in Ex. AA it was stated that a Mar ay am of 7000 fanams had been paid, that this lease deed was brought into existence during the pendency of O.S. 57 of 1103 at the instigation of Velayudhan Subramonian for the benefit of defts. 1 and 2, that the 3rd Defendant who is the brother-in-law-of Defendants 1 and 2 was only a name lender for those Defendants, that Defendants 1 and 2 were really enjoying the properties though the lease deed stood in the name of the 3rd Defendant, that Defendants 1 and 2 had not effected any improvements, that no amount was due to them on that or any other account, that Defendants 1 and 3 had cut and removed a number of trees from the fields, that plaint item 2 had been converted into paddy land even before 1108, that there was no necessity to convert the plaint properties into paddy land, that the plaint properties would, fetch an annual pattom of 120 kottas of paddy, that the rent fixed in Ex. AA was very low, that Defendants 1 to 3 failed to pay the rent fixed, that on the 3rd Defendant''s filing O. S. 86 of 1118, it was known that Anr. lease deed by the Defendants 9 and 14 to 19 had been executed on 1-3-1115 in favour of the 3rd Defendant for the plaint properties reserving a pattom of 60 kottas of paddy a year, that Ex. AB is copy of that lease deed, that Defendants 9 and 14 to 19 had no right to execute the same, that the recitals therein were all false and that the two lease deeds Exts. AA and AB were not binding on the trust. The suit was to set aside these two lease deeds and to recover possession of the plaint properties with arrears of mesne profits from 1109.
The 3rd Defendant alone contested the suit. He stated that O.S. 57 of 1103, the judgment in which is Ex. C, was a collusive and fraudulent suit, that it did not bind him, that Sy. No. 868 in Vadiveeswaram Pakuthy included in the lease deed in his favour was a Sirkar Poramboke land that the trust could not get possession of the same, that the trustees who executed the lease deeds in 1101 were managing the trust affairs properly, that the rent due as per the lease deeds of 1101 had been deposited in Court, that there were no arrears, that even if there were any arrears, the right to collect the same had become barred by limitation, that he had no knowledge of the pendency of O.S. 57 of 1103, that Ex. AA was taken in good faith and for consideration and binding necessity of the trust, that the recitals were all true, that Defendants 1 and 2 had effected improvements in the properties as stipulated Exts. LXXXIX and XCII, that ail rents under Ex. AA had been paid, that Ex. AB lease deed of 1115 was brought into existence with the knowledge and consent of the villagers and that it had n executed by competent persons, that the Plaintiffs had no right to question the competency of the executants of the same, that the recitals therein were all true and binding on the trust, that the rent till the Kanni crop of 1116 had been paid, that the Plaintiff''s claim for interest was not allowable, that the Plaintiffs were not entitled to call upon Defendants 1 to 3 to account for the Pattom due, that the Defendants had incurred damage to the extent of 1553 1/8 fanams by the appointment of a commissioner at the instance of the Plaintiffs to take the harvest of the Kanni crop of 1117, that owing to drought there was failure of crops in Kanni 1110, 1111 and 1113, and 1114 and Kumbhom 1113, that no Pattom could be claimed for these crops, that sub-lessees had been put in possession of some of the properties, that they were also necessary parties to the suit and that the Plaintiffs were not entitled to any of the reliefs claimed in the plaint.
The Plaintiffs filed a replication denying all the allegations inconsistent with the plaint averment.
The lower Court found that the decree in. O.S. 57 of 1103 was binding on the 3rd Defendant, that Survey No. 868 of the Vadiveeswaram Pakuthy was not a Poramboke land, that the same had been included in the lease deed executed by the trustees, that the 3rd Defendant was incompetent to contend against the rights of the lessors, that the Sirkar was not a necessary party to the suit as pleaded by the 3rd Defendant, that Defendants 1 and 2 had not settled the accounts as regards the lease amount due from them under the lease deeds of 1101, that none of the recitals in Ex. AA was true and binding on the trust, that it was not therefore supported by consideration and good faith, that the lease deeds taken in the name of the 3rd Defendant were really for the benefit of Defendants l and 2 that the 3rd Defendant was therefore a benamidar for Defendants 1 and 2, that the lease deeds Exts. AA and AB were executed by incompetent persons, that they were not binding on the trust, that certain amounts towards rent had been deposited in Court, that the Plaintiffs were to give credit for the same, that the Plaintiffs could claim only mesne profits for three years prior to the date of: the suit, that mesne profits would be 120 Kottas of paddy per annum and that the Plaintiffs were entitled to recover possession of the plaint properties from Defendants 1 to 3. A decree was therefore passed allowing the Plaintiffs to recover possession of the plaint schedule properties from Defendants 1 to 3 with costs of the suit. Defendants 1 to 3 were made liable to pay mesne profits at the rate of 120 Kottas of paddy per annum from three years preceding the suit. They were however allowed credit for certain amounts deposited in Court. Interest on mesne profits was allowed at 6 per cent.
In O.S. 86 of 1116, the Plaintiff there who was the 3rd Defendant in O.S. 2 of 1117 had prayed for a declaration that the lease deed Ex. AB was executed by proper persons and was binding on the trust. He wanted an injunction restraining the villagers including the Plaintiffs in O.S. 2 of 1117 from interfering with his possession. The contention there was on the lines mentioned in O.S. 2 of 1117. They stated that Ex. AB was-an invalid document consistent with the averments made in O.S. 2 of 1117. It was held that the Plaintiff was not entitled to any relief and so the suit was dismissed. The parties were- directed to bear their costs.
The main question for consideration in both the appeals is whether Exts. AA and AB lease- deeds were valid. Ex. I dated 11-6-1084 was an. Udampady entered into between the villagers as regards the management of the plaint trust. Eleven persons were to be elected as trustees of whom one was to be the Muthalpidi of the trusteeship. Documents for the trust properties were to be executed by all the trustees. The Muthalpidi was allowed only to collect the pattom from the properties and credit the same in the account. In 1103 it would appear that the trustees elected that year functioned for some time and thereafter they were not allowed to do so by the trustees whom they displaced. This necessarily resulted in the suit Ex. C for a scheme for the management of the trust. There was thus dissension between the villagers in regard to the management of the trust and the documents Exts. AA and AB came into existence during that period. Admittedly in 1103, Defendants 1 and 3 were in possession of the properties as lessees. They had also been impleaded in Ex. C case as Defendants 80 and 81. They know very well the disputes between the villagers regarding the management of the trust. They therefore thought it proper not to get a renewal of the lease in 1108 in their names. They got it in the name of their brother-in-law the 3rd Defendant who, as the lower Court observed was under impecunious circumstances. The lease deed itself was executed by persons who were not shown to have been duly elected to represent the trust. They were intermeddlers with the trust and as such, even if they were in possession of the trust properties, it could only be as trustees de son tort. No doubt if they did this which benefited the trust, the same would be binding on the trust and not otherwise. Ex AA was executed on 24-6-1108 when the suit O.S. 57 of 1103 was pending. The executants were, aware of the suit and the lessee, the 3rd Defendant, who took the lease was also expected to know of the dissension in the village. He had made reference to this in his account book Ex. XXXVII. Though it is a self-serving piece of evidence, yet from the reference made in it regarding the conflicting interest of the several villagers who claimed pattom from him it is clear that he too was aware of the pendency of the suit. Therefore he could not be deemed to have acted bona fide. The Full Bench decision in-Sankaranarayanan v. S.P. Temple Koilpatti AIR 1949 Mad 721 (FB) (A) will make the legal position of such executants clear. It was mentioned that while considering the plea of persons styling themselves de facto trustees the Courts must be astute to safeguard the interests of the institution, for it is only in such interest that the right of suit is at all conceded to such persons. The de facto trustee can act only in the absence of the de jure trustee and cannot keep the lawful trustee or manager out of possession. It was also pointed out that the expressions "de facto trustee" or "trustee de son tort" cannot include persons who purport to act as trustees in fraud of the rights of the existing lawful trustees. A person who asserts his own title to the property of a religious endowment, who does not sue as trustee or manager of the endowment and who claims to recover the property for himself and not for the trust, can never be allowed to sue as a de facto trustee. If a man forcibly, violently and dishonestly takes, possession of trust properties under a false claim to be a trustee or if there is a scramble for possession between rival contestants, the claim of de facto trusteeship is untenable. It was further stressed that a fugitive or isolated act of a person with regard to the property of religious endowment would not make him a de facto trustee.
A de facto trustee or a trustee de son tort is a person who without title, chooses to take upon himself the characteristics of a trustee. The de facto trustee in order to exercise any act of management as regards the trust properties must be one who is in actual possession of the properties. This aspect has been stressed by Mukherjee, J., as he then was, in- (Sree Sree Banku Behary Thakur and Shalgram Shila Thakur by their Paricharak and Shebait) Panchkari Roy Vs. Amode Lal Barman and Others, . That was the view taken by the Madras High Court also in- Subramania Gurukkal Vs. Abhinava Poornapriya A. Srinivasa Rao Sahib, . Thus in order to clothe the exe cutants of Exts. AA and AB with the characteristics of the de facto trustees they must have been in actual possession of the properties regarding which these documents were executed. These properties were outstanding on leases, Exts. LXXXIX and XCII executed in. 1101 by persons who were admittedly trustees then. There was scramble for possession in 1103 when even the possession of Defendants 1 and 2 of these properties was threatened. They therefore filed O.S. 18 of 1103 for an injunction to restrain the villagers who threatened their possession from meddling with the properties. Exhibit XXXVIII, the judgment of the trial Court and Ex. E, that of the High Court would show that they obtained the relief they had claimed. Thus Defendants 1 and 2 were really in possession when Ex. AA was executed and it had been shown that the 3rd Defendant who took Ex. AA was a benamidar for Defendants 1 and 2. That is the case with Ex. AB also. Thus the persons who were said to have renewed Exts. LXXXIX and XCII by Exts. AA and AB were not the persons in actual possession of the properties, but were those who were able to execute the documents in collusion with Defendants 1 to 3 when these documents were not in any way beneficial to the interests of the trust. The receiver appointed had leased out the properties for an annual Pattom of 120 to 130 Kottas of paddy. This figure might have been arrived at because of the intensive cultivation due to shortage of paddy. But at any rate the rents could not have been such small amounts as 50 or 60 Kottas of paddy as mentioned in Exts. AA and AB. We are therefore satisfied that Exts. AA and AB were not executed so as to secure any benefit for the trust and they were also not executed by persons who were shown to be competent to do so. The scramble for possession and the dissension in the village are further evident from the suits filed by other villagers to protect the interest of the trust while scheme suit was pending. Exhibit F is the judgment in one of those suits. It was a suit money due from Defendants 1 and 2 on a hypothecation bond. The competency of the Plaintiffs to institute that suit had been questioned. The Court however passed a decree allowing the Plaintiffs to realise the money under the hypothecation bond and bring it into Court so that trustees who were to be appointed in Ex. C case were to draw the same. Another similar suit is evident by Ex. R. Exhibit U is copy of the plaint in O.S. 6 of 1105 instituted by two villagers on behalf of the trust to set aside various alienations by the trustees of 1101. Exhibit LXXVIII is copy of the decree of the District Court in that case and Ex. XCI is copy of judgment of the High Court in the same. All these show that there were no properly elected trustees in the village after Ex. C suit was filed. Matters were in such an unsatisfactory factory state of affairs as regards the plaint trust when Exts. AA and AB came to be executed in favour of the 3rd Defendant. We are therefore clearly of the view that Exts. AA and AB invalid documents not binding on the trust, this respect we confirm the finding of the lower Court.
(8-12) (The judgment then discussed the amounts said to be due to the Defendants 1 and 3 the rate of mesne profits to be allowed and concluded as follows:) In the result, we modify the decree of the lower Court by allowing Defendants 1 to 3 to get credit for 1750 (one thousand seven hundred and fifty) fanams on account of the consideration for Exts. AA and AB. We also reduce the rate of mesne profits from 120 to 110 Kottas of paddy a year. The Plaintiffs are allowed set off the above amount against the arrears mesne profits due. As directed by the Tower Court credit will be given for the amount deposited the 3rd Defendant in Court towards the mesne profits. Subject to the modification mentioned above, the appeal is dismissed with costs.