Swaminatha Aiyar vs Srinivasa Aiyar and Others

The appeal has been argued before us on the basis that the 1st defendant at the thus when the promissory note in question was executed by him

was a trustee of the temple concerned in the suit. The 2nd defendant was appointed trustee about 2 years before the institution of the suit. The

plaintiff has obtained a personal decree against the 1st defendant. But he says that he is also entitled to a decree as against the temple property,

that is to say to a direction that the amount due to him may be obtained out of the trust property. But the lower Courts have held that inasmuch as

the 1st defendant did not sign the promissory note as manager all that the plaintiff was entitled to was a decree against him personally. The suit as

framed however appears to be not merely on the basis of the promissory note but also for debt and issues were framed raising the questions

whether the debt was contracted for the benefit of the temple, whether the note was supported by consideration and whether the plaintiff was

entitled to any relief against the trust property. If the plaintiff be entitled to any relief against the trust property, the mere fact that the 1st defendant

in executing the promissory note did not sign as manager or trustee of the temple would not make any difference, for as we have stated the suit was

not merely on the promissory note but also on the debt. This is a well recognised distinction and none of the cases which are cited in the judgment

of the District Munsif can be said to have held otherwise.

But the difficulty in the way of appellant is that he is not entitled to any but a personal decree against the 1st defendant. He did not obtain any

charge upon the temple property : all that he obtained was a promise on the part of the 1st defendant to pay the debt.. The fact that the money was

utilised and was intended to be utilised for the benefit of the temple cannot entitle the plaintiff to have a decree charging the amount due under the

promissory note against the temple property. The law is clearly laid down by Lord Salbourne in Strickland v. Symons (1884) 26 Ch. D. 245 and

Sir George Jessel, Master of the Rolls in In re Johnson, Shearman v. Robertson (1880) 15 Ch. D. 548. In the first case, it is stated by Lord

Selbourne ""that there is no principle or authority for saying that if a trustee mikes himself personally liable for goods, the creditor thereby obtains a

lien on the trust property. There is not the least authority for such an action as the present. It is an action for an equitable execution against the trust

estate in respect of a judgment against the trustee. There is no evidence of any contract for any security on any part of that estate. There was only

an ordinary contract for goods supplied to a person who happened to be a trustee."" Here the liability ""arose out of the money borrowed by the

trustee on a promissory note. That stands exactly on the same footing as if the debt was contracted for goods supplied for the benefit of the trust.

Sir George Jesse], Mister of the Rolls, also in the other case lays down the law practically in the same terms, In England however a distinction is

made in cases where a certain specific trust property is set apart or ear-marked for the carrying on a business by a trustee. If in such a case, a debt

is contracted by the trustee in the course of the business, it has been held tint the creditor will be entitled to stand in the shoes of the trustee and to

recover the money advanced, out of that particular fund. But even here there is a clear limitation to such a right expressed by a condition that a

trustee himself should have a right of indemnity against the trust fund. If there was nothing due to the trustee, then as pointed out by the Master of

the Rolls, the creditor can get nothing out of the trust fund. As regards the right of the creditor in an ordinary case where he lends money to the

trustee or sells goods to him, there is no authority so far as one can gather from the English cases foe the proposition that he is entitled to have his

debt realised out of the trust property. This seems to be guite reasonable for supposing that at the time the creditor advanced the money, it was

required for the benefit of the trust, still the trustee who borrowed might not be entitled to receive any money from the trust property, but on the

other hand might be indebted to the trust. It would then be clear injustice to pass a decree making the trust property liable for the debt, the creditor

having lent money on the personal security of the trustee. In India this view of the law was adopted in a Calcutta case In the Mailer of Shard ILR

(1901) C. 574 by Mr. Justice Sale who followed the ruling in Strickland v. Symons (1884) 26 Ch. D. 245 and In re Johnson, Shearman v.

Robertson (1880) 15 Ch. D. 548. There is however a decision of this Court Srimat Devasikamani Pandara v. Noor Mahomad Rowthan ILR

(1907) M. 47, where it was held that'' for debts contracted by the head of the mutt for purposes binding on the mutt, a decree in respect of such

debts may be passed against his successor charging the income of the mutt property, though such debts were not expressly charged on the income

of the mutt. This decision may perhaps be explained as suggested by the learned pleader for the respondents, on the ground that according to the

then prevalent view as to the legal right of the head of a mutt, the succeeding matathipathi might be regarded as being in the position of an heir to

the last head of the matt. That does not however, it must be admitted, appear to be the ratio of the decision in Srimat Devasikamani Pandara v.

Noor Mahomad Rowthan ILR (1907) M. 47. The learned Judges proceeded on a dictum of their Lordships of the Privy Council in (1876) L.R. 4

I.A. 52 (Privy Council) that a trustee of a temple occupies a position similar to that of a guardian towards an infant. But the case in the Indian

Appeals was one in which the validity of alienations was in question and the analogy which was drawn in that case between the trustee of a temple

and the guardian of an infant could not have been intended to convey that the right of a creditor who lent money to a trustee of a temple on

personal security stood on the same footing as the rights of a creditor lending money to the guardian of an infant. The question whether a debt

which is contracted by a trustee on his own personal security although for purposes of the trust can be made a lien on the trust estate does not

appear to have been fully argued before the learned Judges in 31 Madras and none of the oases to which we have been referred were brought to

their notice. The law as laid down in the two English cases referred to above as well as in 28 Cal. 574 is clear; and if a different view is taken in 31

Madras, we venture to think with all respect that it is not correct.

Mr. Ananthakrishna Aiyer suggested that we might order an enquiry as to whether the 1st defendant was entitled to receive any money from the

temple and if so a decree might be given making the temple property liable for the plaintiff''s debt to that extent. But there was no allegation

whatever in the plaint nor was any question raised by the issue that the temple was indebted to the 1st defendant. We do not think that it would ha

the right course in this suit to order any such enquiry as ha3 been suggested. It may be that Mr. Ananthakrishna Aiyer''s client has a remedy by a

suit properly framed against the trust property if as a matter of fact the trust property is liable to the 1st defendant on a proper account being taken.

The appeal fails and must be dismissed with costs.