T.S. Venkatabalagurumurthi Chettiar vs T.A. Balakrishna Odayar and Others

Horace Owen Compton Beasley, Kt., C.J.—This is an appeal which originated in a suit in the District Munsif''s Court of Kumbakonam

(O.S. No. 4 of 1920). In that suit the plaintiff who was carrying on a maligai business sued the Sri Sarangapaniswami temple and its two trustees

personally to recover a sum of Rs. 900 and odd which represented the balance of money owing to him by the temple for the supply of groceries to

the temple, those groceries having been supplied for the purpose of the puja. There was also a claim for interest. It is worthy of note that the

dealings between the plaintiff and the defendants were from the 1st January, 1912 to the 14th March, 1919 and we are here 11 years afterwards,

finally I hope, adjudicating upon the plaintiff''s claim. In the District Munsif''s Court the hearing of this quite a small claim took 16 days, it took one

day when it was taken up on appeal by the Receiver in this case to the Subordinate Judge''s Court--and there the decree of the District Munsif in

favour of the plaintiff was set aside--and the appeal before Odgers, J., lasted two days--and there the decision of the learned Subordinate Judge

was upheld--so that before the case reached us nineteen days of judicial time had been occupied in determining the rights of the parties in this very

simple case and I feel bound to say that the action of the Receiver in taking the case up on appeal from the District Munsif has resulted in a gross

waste of time and money.

It is admitted that the goods supplied by the plaintiff to the temple were ordered and utilised for the puja performed in the temple; and it is also

admitted that the orders were placed by persons whose duty it was to place those orders, namely, the trustees of the temple; so that the goods

were supplied for the proper and necessary purposes of the temple and were ordered by persons who were doing so in the discharge of their

duties as trustees of the temple.

The District Munsif gave a decree in favour of the plaintiff but the Subordinate Judge reversed that decree because he held himself bound by a

decision in Lakshmindra Thirthaswamiar v. Vibhudapriya Thirthaswamiar (1922) 44 M.L.J. 187, which was a decision with regard to the

borrowing of money by the Swami of a Mutt. That case went up to the Privy Council and had not been decided at the time when the Subordinate

Judge gave his judgment nor had it been decided when the case came before Odgers, J., and no mention appears to have been made of the case

before him.

What we have got to consider now is whether that decision of the Privy Council, (1927) L.R. 54 I.A. 228 (Privy Council) , concludes this

matter. As I have already stated, the facts of that case were that the head of a mutt had borrowed money for the purpose of discharging the duties

for which he was responsible as the head of the mutt and the money had been legitimately applied for that purpose and it was held that it could be

recovered from the succeeding head of the mutt, so that the decision of the High Court in Lakshmindra Thirthaswamiar v. Vibhudapriya

Thirthaswamiar (1922) 44 M.L.J. 187 was reversed on appeal by their Lordships of the Privy Council. I desire to refer to only one passage in the

judgment of their Lordships, (1927) L.R. 54 I.A. 228 (Privy Council) where they state the essentials in such a case. It is as follows:

What their Lordships have to see in this case is, firstly, whether the debts were contracted by the deceased Swami for his own purposes or for

purposes of the temple and in discharge of the duties under which he lay in the performance of the worship and the feeding of pilgrims; and,

secondly, whether the moneys so borrowed were legitimately applied for those purposes.

Applying that test to the facts in this case it is quite clear; that the credit was obtained not for the private purposes of fee trustees but for the

purposes of the temple and the goods were bought in the discharge of the duties under which the trustees lay in the performance of the worship

and the feeding of the worshippers and it is not contested that the goods so bought were legitimately applied for those purposes. The facts in this

case when tested by the Privy Council decision clearly make this claim sustainable by the plaintiff. But Mr. Srinivasavaradachariar argues on behalf

of the Receiver that this decision of the Privy Council in (1927) L.R. 54 I.A. 228 (Privy Council) is inapplicable to this case because that is a

decision with regard to a mutt, that temple stands on an entirely different footing and that the trustees of temples are more restricted in their rights

than persons who have charge of mutts. But he has been quite unable to satisfy us that there is any such real distinction. Obviously there is a great

distinction between a mutt and temple but it does not follow that there is a distinction between the borrowing powers of the Swami of a mutt and

the borrowing powers of the trustee of a temple and a good deal of confusion seems to have crept into the argument on behalf of the respondent

with regard to what really trustees are. Mr. Srinivasavaradachari argued the case on the footing that trustees are as restricted as trustees in

England. One case which he relies on is Swaminatha Aiyar v. Srinivasa Aiyar (1916) 32 M.L.J. 259, but Mr. T.R. Ramachandra Aiyar points out

that that case has been explained and distinguished in Sundaresan Chetty alias Sundaram Chettiar Vs. Visvanatha Pandarasannadhi Avergal and

Another, . That is a ease which clearly shows that the essential is that the borrowing should be for temple necessity and not necessarily for financial

necessity. Personally I cannot see very much distinction between ""temple necessity"" and ""financial necessity"". They both seem to me to be equally

important. The argument put forward on behalf of the respondent, namely, that at the time when credit was taken by the trustees of the temple they

had cash on hand with which to pay for the goods does not seem to me to have very much force., The argument of course is that there was no

financial necessity for the credit being opened or taken by the trustees since they had cash on hand and we are asked to say that there has been a

finding of fact upon this point which we cannot interfere with. It is quite true that the Subordinate, Judge says in his judgment that there is evidence

that during this time large sums of money came into the hands of the trustees, that there was money put out with Chetties; and from this he draws

the inference that there was no legal necessity for having these goods on credit. But it seems to me that that inference is an inference really of law to

be drawn upon those facts. It does not follow that because cash was coming into the hands of the trustees, they were able to pay for the goods

when they got them, unless it is known what their other liabilities were at the time. It cannot be said with any certainty that there was sufficient cash

on hand to pay for the goods. And, moreover, we know this that the trustees of the temple were quarrelling and one of them was withholding the

money of the temple and at any rate no payment Was made and the trustees were very glad to take the very long credit which was given to them

by the plaintiff.

Another argument pressed upon us is that there was no contract, as it is argued there must be, by the trustees to make the temple funds liable for

these debts. But that argument cannot prevail in the face of the very strong facts. Ex. L series show that written orders were given to the plaintiff for

the supply of these articles, that those orders were written on paper headed the Sri Sarangapaniswami Devasthanam and were signed at the end by

one or other of the trustees as trustee. That, in itself, to my mind, is a clear indication that the articles ordered were ordered for the purpose of the

temple by a person entitled in the ordinary course of his duties to order them and that the temple funds were to be liable for the payment of those

articles. Any other construction of these documents, I think, would be absurd. Therefore, it seems to me perfectly clear that the trustees contracted

that the goods would be paid for out of temple funds. The learned District Munsif himself points out in paragraph 10 how it was that these goods

were ordered and he refers to one important matter, namely, that in the books of the temple themselves the money for these goods was entered as

a debit against the temple funds. I cannot see how the Privy Council decision in (1927) L.R. 54 I.A. 228 (Privy Council) is inapplicable to this

case. I think that no real distinction, so far as the necessity for borrowing is concerned, can be drawn between the Swami of a mutt and the trustee

of a temple. Under these circumstances, I feel myself bound by that decision and this appeal must, therefore, be allowed with costs throughout.

The Subordinate Judge did not decide two other matters raised in the appeal before him, namely, the question of limitation and the right of the

plaintiff to get interest. With regard to the former, Mr. Srinivasavaradachari says that he is not in a position to press the point and with regard to the

latter he has made a suggestion that the rate of interest should be reduced to 6 per cent, and to this Mr. T. R. Ramachandra Aiyar agrees.

Therefore, the decree of the District Munsif will be restored except with regard to the rate of interest which is reduced to 6 per cent.

Pakenham Walsh, J.

I entirely agree with the judgment my Lord the Chief Justice has just delivered and I would only like to add the following points. In the case in

Lakshmindra Thirthaswamiar v. Vibhudapriya Thirthaswamiar (1922) 44 M.L.J. 187, which was reversed on appeal by the Privy Council in

(1927) L.R. 54 I.A. 228 (Privy Council) . Krishnan, J., laid it down that mutt properties in the hands of a matathipathi will not be liable for the

debts of his predecessor either on the ground that the borrowing was for a purpose which was not justifiable at all or on the ground that though the

purpose was a legitimate one the predecessor had enough funds of the mutt in his hands at the time and, therefore, had no necessity to borrow at

all to meet the expenses. As regards the facts found in that case on that point, it may be said to have been found that the mutt would have had Rs.

1,00,000 in hand but they incurred a debt of Rs. 1,30,000. The Court found it unnecessary to pursue the question further under this head as they

held that the expenses were for illegitimate purposes. Therefore, when their Lordships of the Privy Council held that these expenses were legitimate

they must by implication be held to have negatived the proposition that the mere fact that the mutt may have had cash in its hands made the

borrowing of money for legitimate expenses a charge which could not be recovered from the temple, because it is clear that had they shared the

view of Krishnan, J''., on this point, they must have found that as regards the Rs. 1,30,000 borrowed, the temple was not chargeable to the extent

of Rs. 1,00,000 which the mutt had as money in hand. As I agree with my Lord that there is no distinction in this matter between the matathipathi

of a mutt and the trustee of a temple, it follows that this test propounded by Krishnan, J., has not to be satisfied. As to this decision applying to a

temple, we find their Lordships themselves refer to the case of (1917) L.R. 44 I.A. 147 (Privy Council) . That no doubt is the case of a

matathipathi of a mutt but he was in that particular transaction acting as the trustee of a temple. This is an indication that they did not intend to draw

any distinction in principle which they enunciated between a mutt and a temple. I may also refer to the remarks of their Lordships in AIR 1926 112

(Privy Council) . They say as follows:

The learned Judges of the High Court appear to their Lordships to be rather of opinion that the procurement of a loan of money on easy terms for

the purpose of paying off antecedent loans obtained on very oppressive terms, can never,. in a case of this character, be held to be a necessary

proceeding unless the obtaining of the oppressive loan was, at the time it was obtained, a matter of necessity also. If these learned Judges held that

view, their Lordships cannot agree with them.

From that it would seem to follow that the mere fact that a templet trustee may have money in his hands would not per se render the raising of a

loan a charge which cannot be attached to the temple. It would appear for example from this that the temple might under necessity have raised a

loan of Rs. 1,000 at 50 per cent, and been able the next day to raise a loan of a similar amount at 25 per cent, and that though they had this Rs.

1,000 in hand they could raise a second loan to pay off the first, Therefore, the principle that no loan raised would attach liability to the temple

merely from the fact that there may have been ready money in hand equal to the amount of the loan to be raised seems to be too wide. The only

other fact that I would like to notice in this case is that the Receiver had already paid under orders of Court a sum of Rs. 3,000 to this very plaintiff

as part of the bill and under those circumstances the temple has certainly been put to considerable loss by contesting the decision of the District

Munsif as to this small portion.