SANKARANARAYANAN IYER Vs. SRI POOVANANATHASWAMI TEMPLE, THROUGH EXECUTIVE OFFICER AND ORS.

JUDGEMENT

(1.) THIS case was referred to a Full Bench because Mack, J., before whom it originally came for disposal, considered it desirable that the conflict of decisions as regards maintainability of suits by de facto trustees should be resolved by reference to a Full Bench for the guidance of all courts in the Presidency. The appeal arose out of a suit filed for the recovery of possession of certain property alleged to belong to Sri Swarnamalai Kadiresan Swami Temple and alienated by one Amavasai Paradesi as its trustee to the first defendant on 13th May, 1940, under a sale deed and under an othi deed. The plaintiff was described as Sri Puvananda Swami, through its Executive Officer, C.S. Pillai. The plaintiff's right was in the main based upon the terms of a consent decree passed in O.S. No. 64 of 1937 on the file of the court of the District Munsif of Koilpatti, which was a suit filed by the plaintiff Devasthanam against Amavasai Paradesi and others for possession of the site of Swarnamalai temple and other temples attached to it. It is not necessary to advert in detail to the terms of this razinama decree and the validity of the decree, because the learned Subordinate Judge did not go into the merits of the plaintiff's case. Though it was not specifically pleaded, the plaintiff urged before the trial Court an alternative basis for its claim, namely, that even though the compromise decree did not confer any title on it, the plaintiff Devasthanam was entitled to file the suit as a de facto trustee. The learned District Munsif, following the ruling in Atmaram Rao's Charity v. Packiri Mohammed Rowther, (1944) 1 M.L.J. 35 held that a de facto trustee was in no better position than a trespasser and therefore was not entitled to sue for possession of the alienated property. But on appeal, the learned Subordinate Judge held that in the absence of a de jure trustee, a de facto trustee could maintain a suit for possession on behalf of the trust, and he expressed his conclusion in the following manner:

(2.) ENOUGH has been said to indicate that the scope of the reference to the Full Bench is very restricted, We are not asked to define who can be described as a de facto trustee. Apparently, the learned Subordinate Judge wanted the trial Court to go into the question if the plaintiff in this case can be treated as a de facto trustee. It will be seen from an examination of some of the decided cases that the right of a person other than a de jure trustee to maintain a suit for possession of trust properties cannot be decided in the abstract and depends upon the facts of each case.

(3.) AT the outset, it must be made clear that the question which falls for decision in this case is concerned with charitable and religious trusts or endowments, which are explicitly excluded from the class of trusts to which the Trusts Act of 1882 has application. This fact must be borne in mind, because what little there is of conflict is, in my opinion, almost entirely due to an attempt to apply rules governing private trusts to public charitable and religious endowments.