Garuda Sanyasayya vs Nerella Murthenna and Others

This is a suit for the removal of the 1st defendant from the trusteeship of a certain charity and for settling a scheme - of'' management. The

District Judge directed his removal and framed a scheme. In the appeal to this Court a large number of questions were argued. We agree in the

main with the conclusions on facts come to by the learned District Judge. We hold that there was a dedication of the choultry to charity under Ex.

E. We see no vagueness in the trust-deed and we further agree with the District Judge that the whole of the choultry, not simply a portion of it, was

dedicated to the charity.

Mr. Narayanamurthi argued two questions of law, on which it is necessary to say a few words. We do not agree with him that the plaintiffs are

not entitled to institute the suit u/s 92 of the Civil Procedure Code, They are residents of the locality in which the choultry is situated and are

members of the community for whose benefit the charity was founded. In our opinion, these facts give them sufficient interest to institute the suit.

The second question relates to the liability of the 1st defendant for the application of the funds of the charity by his grandfather and father. It was

strenuously argued before us that the 1st defendant is not liable because his father and grandfather must be deemed to have criminally,

misappropriated the funds. The facts are, the grandfather fcr sometime conducted the charity. Later in his life, he neglected it and appropriated the

income to his own use. The father who was under the deed of trust entitled to the office of the trustee never applied the inbome for purposes of

charity. In our opinion the exceptions contained in the text of Usanas quoted by Vignaneswara do not cover the present case.

After enumerating in the same language as the other Eishis the categories of father''s debts for which the sons are not liable, Usanas and Vyasa

add a supplementary category of debts which are Avyavaharika and Vignyaneswara follows him in this. There has been much difference of opinion

as to the meaning to be given to this word. Literally it means not usual or businesslike but having regard to the context and to the fact that this

category was introduced by these two Eishis alone as supplementary to the categories given by the majority of the Eishis most of which relate to

debts of an objectionable character, we agree with Mooker-jee, J., in Chhakauri Mahton v. Ganga Prasad ILR (1911) C. 862 in preferring

Colebrooke''s translation "" not opposed to good morals."", The decision in Durbar Khachar v. Khachar Harsur ILR (1908) B. 348 strongly relied

upon by the learned Vakil for the appellant seems to have been doubted in Ramakrishna Trimback v. Narayan ILR (1915) B. 126 and has not

been accepted as good law in Chhakauri Mahton v. Ganga Prasad ILR (1911) C. 862, and in Sumer Singh v. Liladhar ILR (1911) A. 472 and

Venugopala Naidu v. Ramanadhan Chetty ILR (1912) M. 458. We prefer to follow these latter decisions. At the same time we are not prepared

to say with Sadasiva Aiyar, J., in the latter case that every obligation ""which is supportable as valid by legal arguments and on which a right could

be established in the creditor''s favour in a court of justice,"" will be binding on the son. It was the duty of the trustees to collect the income and their

subsequent misappropriation of it does not affect the liability to account which they incurred by reason of the collection. The fact that the

misappropriation amounted to a criminal offence appears to be irrelevant.

In our opinion the son is accountable for the misappropriation of the trust funds by his father and grandfather. The subtle distinction drawn

between accountability and debt by Mr. Narayanamurthy does not commend itself to us.

The further question is whether the 1st defendant should be held liable for all the collections not accounted for by his predecessors. He

succeeded to the office of trustee two years before the suit. His father succeeded to the trusteeship in 1884 and was the manager of the family and

of the charity until 1914. In our opinion the 1st defendant should be made liable only for collections during the last twelve years. It is riot denied

that courts have a discretion in fixing the period for which accounts should be rendered. In The Attorney-General v. Mayor, etc., of Exeter (1826)

Jacob p. 443 : 37 E.R. 918, Sir Thomas Plumer, Master of the Bolls, said :--"" It has, I think, been properly stated on both sides, that there is no

fixed limit of time in directing an account against a trustee of a charity. Notwithstanding the case which has been cited from a very inaccurate book,

the statute of limitations is not the rule.* * * It does not, however, follow that relief will be given after a great length of time, it being the constant

course of Courts of Equity to discourage stale demands; even in cases of fraud, in which, if recent, there would have been no doubs lapse of time

has induced the Courts to refuse their interference. In cases of charities this principle has often been acted on. When there has been a long period,

during which a party has, under an innocent mistake, misapplied a fund from the laches and neglect of others, that is, from no one of the public

setting him right, and when the accounts have in consequence become entangled, the Court, under its general discretion, considering the enormous

expense of the enquiries, the great hardship of calling upon representatives to refund what families have spent, acting on the notion of its being their

property, has been in the habit, while giving the relief, of fixing a period to the account."" In the present case the 1st defendant''s grandfather and

father have been left in the sole enjoyment of the charity properties without being called upon to account for their administration. The 1st defendant

himself has not been shown to have been benefited by their conduct.

In these circumstances we have decided to fix twelve years as the limit of time for which accounts should be rendered by the 1st defendant.

Subject to this modification the appeal will be dismissed with costs of the plaintiffs to come out of the charity. We may mention that irnthe framing

of the scheme 1st defendant may be nominated, if otherwise not disqualified to, be one of the trustees of the charity.