Appeal No 605 of 1964
Appeal by special leave from the judgment and decree dated April 12 1963 of the Andhra Pradesh High Ccurt in SA No 124 of 1959
281 P Ram Reddy and A V V Nair for the appellant
H R Gokhale section P R Vital Rao K Rajendra Chaudhari and K R Chaudhuri for the respondent
The Judgment of the Court was delivered by Subba Rao CJ
This appeal by special leave raises the question whether a suit would lie at the instance of the present trustees of a temple for rendition of accounts of the management of the temple by the ex trustees
The appellant is Sri Vedagiri Lakshmi Narasimha Swami temple situated at Narasimhuly konda Nellore taluk in the State of Andhra Pradesh represented by its trustees
The respondent and two others were non hereditary trustees of the said temple and functioned as such for a term of five years ending with January 1951
The respondent was the managing trustee during that period
The new trustees were appointed by order of the Hindu Religious Endowments Board dated January 21 1951  but they were able to obtain possession of the temple only on July 21 1952
They representing the temple filed OS No 246 of 1953 in the Court of the Subordinate Judge Nellore against the respondent and others for the following three reliefs  1 to direct all or such of the defendants as may be found liable to render a true and proper account of their management of the temple and its properties since the date of their functioning as trustees and to pay over to the new trustees such amounts as may be found due  2 to assess the amount due to the temple as a result of the various acts of malfeasance misfeasance and nonfeasance of the defendants 1 to 3 in respect of their management and to direct them to pay the same to the new trustees  and 3 to direct the defendants 1 to 3 to deliver to the new trustees all documents accounts registers section 38 register jewels and movable properties after rendering a true account thereof and failing such delivery to pass a decree against the defendants for their value or pass such decree against them for such damages as the temple had sustained
In the plaint the new trustees alleged that the defendants were guilty of acts of misfeasance malfeasance and nonfeasance and also of gross negligence
The defendants inter alia apart from denying the said allegations made against them pleaded that the suit was not maintainable in a civil court in view of the provisions of section 87 of the Madras Hindu Religious and Charitable Endowments Act 1951 Act 19 of 1951 hereinafter called the Act
The learned Subordinate Judge by his judgment dated August 12 1953 held that the suit was maintainable
He also found that defendants 1 to 3 were liable to render an account of their management during the period of their trusteeship and to pay damages for the loss suffered by the temple on account of theinr 282 acts of misfeasance malfeasance and nonfeasance
In the result he passed a preliminary decree in favour of the new trustees directing the respondent and defendants 2 5 and 6 the legal representatives of defendant 3 to render a true and proper account of their management of the temple and its properties for the period commencing from the beginning of 1946 to the date when the plaintiffs took possession of the temple in July 1952 and to pay such amounts as may be found due from them on taking accounts
The 1st defendant the ex managing trustee of the temple preferred an appeal against the said decree to the court of the District Judge Nellore
To that appeal the plaintiffs were made respondents
Pending the appeal the plaint was amended and the words of pass such decree against them for such damages as the temple has sustained thereby were deleted from prayer 3 of the plaint
The learned advocate for the plaintiffs made an endorsement on the plaint and the appeal memo stated as follows  Plaintiffs have given up prayer in respect of the damages as endorsed by the learned advocate on behalf of the plaintiffs on the plaint on 20 8 1958
 The learned District Judge also recorded in his judgment that the appellant respondent herein did not press his appeal in respect of the claim for damages given up by the plaintiffs
Prima facie this amendment related only to the prayer to deliver to the new trustees the documents and other movable properties and did not affect the other prayers for rendition of accounts on the ground of malfeasance misfeasance and nonfeasance of the defendants
The learned District Judge understood the finding given by the learned Subordinate Judge as follows  Setting out all these things in detail in paras 13 and 14 of his judgment the learned Subordinate Judge came to the conclusion that it was sufficient to say that there is liability to account in respect of the management on the part of the ex trustees ie defendants 1 and 3 and that they are liable to pay to temple whatever damages it has suffered on account of their acts of misfeasance malfeasance and nonfeasance After considering the relevant evidence and the case law on the subject he came to the following conclusion   I have no hesitation to hold that the plaintiffs have established liability for ex trustees to render account of their management to deliver possession of the other property yet to be delivered and also the records men tioned in the plaint
 The learned District Judge therefore agreed with the learned Subordinate Judge that the defendants had to render accounts 283 of their management of the temple and to pay to the temple damages suffered by it on account of their acts of misfeasance malfeasance and nonfeasance
In the result the decree of the learned Subordinate Judge was confirmed
But on Second Appeal Jaganmohan Reddy J of the Andhra Pradesh High Court held that the suit for accounts was not maintainable
The reasoning of the learned Judge is found in the following observations  It is true that a suit for back accounting on the authority of the decisions cited above does not lie and unfortunately in this case though the frame of the suit was for recovery of damages for negligence of the trustees in not taking leases in not filing rent suits in not collecting rents and generally for other acts of negligence that plea was given up by the respondents probably because they were not in a position to establish these facts
The learned advocate for the respondents admits that this plea was given up by the clients and in the circumstances the only relief that the respondents claim against the appellant now is one for general accounting relating to the management or administration of the trust property and applying the principle laid down by the two judgments of this Court in Venkataratnam vs Narasimha Rao 1 and Sri Saraveswaraswami Vari temple vs Veerabhadrayya 2 1 cannot but hold that suit will not he and in this view the appeal is allowed and the judgments and the decrees of the courts below are set aside Though prima facie as we have said earlier we are inclined to hold that what was given up by the appellant was only a part of the third relief in view of the unambiguous admission made by the learned advocate for the appellant and recorded in the judgment of the High Court we have no option but to hold that the appellant had given up the plea of wilful default against the defendants and confined the relief only to a rendition of accounts by them in respect of their management of the temple during their tenure and to pay the amount that might be found due to the appellant
Mr P Ram Reddy learned counsel for the appellant temple raised before us three points  1 The suit was for damages for gross negligence and the learned Judge did not appreciate the correct scope of the concession made by the learned advocate appearing for the temple before him
2 Section 93 of the Act is not a bar to a suit by the present trustees against the ex trustees for rendition of accounts of their management of the temple 1 M15Sup
CI66 5 2 284 properties and recovery of the amounts due from them
3 The learned Judge went wrong in holding that a suit for back accounting would not lie
On the first point we have already expressed our opinion earlier that in view of the unambiguous concession made by the learned advocate for the appellant before the High Court we must hold that the suit after the amendment of the plaint was confined only to rendition of accounts not on account of wilful default or negligence but only for rendition of accounts by the ex trustees of their management and to pay the amounts due to the present trustees
The question therefore is whether the present trustees can demand a rendition of accounts from the ex trustees in respect of their management without alleging against them any acts of negligence or wilful default and if so whether section 93 of the Act was a bar to the maintainability of a suit for the relief of rendition of accounts in a civil court
It is common place that no trustee can get a discharge unless he renders accounts of his management
This liability is irrespective of any question of negligence or wilful default
In the present case the ex trustees admittedly did not give an account of their management though they put the plaintiffs in possession of the properties in the year 1952 and that too after adopting a course of obstructive attitude
They are therefore liable to render accounts of their management to the present trustees
The decisions relied upon by the learned Judge to not sup port the view that an ex trustee need not render accounts in the absence of allegations of negligence or wilful default
In V K Kelu Achan vs CS Sivarama Pattar 1 one of the questions raised was whether the 1st defendant therein who was a karnavan of a tarwad and also the manager of temple properties should be made to give a general rendition of accounts of his management from 1900
It was found in that case that the 1st defendant was not personally responsible for any loss to the temple that no relief for rendition of accounts was asked for against him and that he was not the person who was maintaining the accounts
on those facts the High Court refused to give a decree against the 1st respondent for back accounting
In the course of the judgment the following observations were made  It is a general principle also that back accounting will not be decreed except on proof of dishonesty and malversation and we have not found any such proof here against the present trustee
 These observations do not circumscribe the scope of the court s discretion but only lay down a guide for its exercise
They must 1 AIR 1928 Madras 879 887
285 be read in the context of the facts found in that case
Nor the decision in The Madura etc
Devasthanams vs Doraiswami Nayudu1 lays down any such wide proposition
There the executive officer of a temple sought to recover from its ex trustee a certain amount by way of damages on foot of gross negligence
It was found that the trustee was not guilty of any wilful default and that he was justified in acting upon the vouchers and accounts furnished by the law department of the Devasthanam and also that it was not established that any items were really due to the temple
On those facts the suit was dismissed
Briefly stated that was a suit for rendition of account on the ground of wilful default in the course of management of the temple affairs and as no wilful default had been established the suit for accounts was dismissed
 It is not an authority for the position that unless wilful default is established an ex trustee need not account to the present trustee and to pay to him the amount due under the said accounts
In the case of rendition of accounts by an ex trustee to a present trustee it will necessarily relate to back accounting for no question of accounting in future arises in his case
The question that invariably arises in such a context is as to what period he shall be made liable to render accounts
That depends upon the facts of each case
Sir Thomas Flumer M R said in Attorney General vs Exetor Mayor 2  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 
It does not however follow that the 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 doubt 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 leaches 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 hardships 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
 These observations were followed by a Division Bench of the Madras High Court in Sanyasayya vs Murthamma 3
Where 1 2  3 AIR 1919 Madras 943 286 a suit was filed for an account for the year 1884 and the 1st defendant was asked to account for the management of his father and grand father the learned Judges of the Madras High Court fixed the period of accounting at 12 years
The said observations were also followed by the Andhra High Court in Hariharabrahmam vs Janakiramiah 1 and having regard to the circumstances in that case the said High Court directed accounts to be taken for a period of six years prior to 1938
In the present case the learned subordinate Judge and the learned District Judge in exercise of their discretion having regard to the circumstances of the case directed the respondent to render accounts of his management from the beginning of the year 1946 to the date when then plaintiffs took possession of the temple in July 1952
We do not see any justification to interfere with the discretion of the courts in that regard
The next question is whether section 93 of the Act is a bar to the maintainability of the suit
The said section reads  No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of law except under and in conformity with the provisions of this Act The learned counsel for the appellant contended that in order to invoke this section the following conditions shall be complied with 1 The suit shall be in respect of the administration or management of a religious institution  2 it shall be in respect of any other matter in dispute  and 3 for determining or deciding such a suit or other legal proceeding there shall be a provision in the Act  if there is such a provision such a suit or proceeding could not be instituted in any court of law except under and in conformity with the provisions of the Act
The further argument was that the administration or management referred to in section 93 related to section 58 of the Act and the other matters of dispute related to section 57 thereof and that as the suit for rendition of accounts did not fall either under section 57 or under section 58 of the Act the present suit for such a relief was outside the scope of section 93 of the Act
Mr Gokhale learned counsel for the respondent contended that Ch
VII of the Act provided for rendition of accounts and a machinery for determining or deciding disputes in respect thereof and that therefore no suit or other legal proceeding could be taken in any court except under and in conformity with the provisions of that Chapter
1 AIR 1955 Andhra 18
287 Under section 9 of the Code of Civil Procedure the courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred
It is a well settled principle that a party seeking to oust the jurisdiction of an ordinary civil court shall establish the right to do so
Section 93 of the Act does not impose a total bar on the maintainability of a suit in a civil court
It states that a suit of the nature mentioned therein can be instituted only in conformity with the provisions of the Act that is to say a suit or other legal proceeding in respect of matters not covered by the section can be instituted in the ordinary way
It therefore imposes certain statutory res trictions on suits or other legal proceedings relating to matters mentioned therein
Now what are those matters  They are  1 administration or management of religious institutions  and 2 any other matter or dispute for determining or deciding which provision is made in the Act
The clause determining or deciding which a provision is made in this Act on a reasonable construction cannot be made to qualify the administration or management but must be confined only to any other matter or dispute
Even so the expression administration or management cannot be construed widely so as to take in any matter however remotely connected with the administration or management
The limitation on the said words is found in the phrase except under and in conformity with the provisions of this Act
 To state it differently the said phrase does not impose a total bar on a suit in a civil court but only imposes a restriction on suits or other legal proceedings in respect of matters for which a provision is made in the Act
Any other construction would lead to an incongruity namely there will be a vacuum in many areas not covered by the Act and the general remedies would be displaced without replacing them by new remedies
The history of this provision also supports the said interpretation
Sub section 2 of section 92 of the Code of Civil Procedure says  Save as provided by the  no suit claiming any of the reliefs specified in subsection 1 shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub section
 Suits for reliefs mentioned in sub s1 of section 92 of the Code of Civil Procedure can only be instituted in special courts and in the manner mentioned therein
Construing the said sub section a Full Bench of the Madras High Court in Appanna vs Narasinga 1 held that a suit by a trustee of a public religious trust against a co trustee for accounts did not fall within the section though the relief claimed 1 Madras 113
288 was the one specified in sub section
1 cl
The reason given was that the relief was sought not in the larger interest of the public but merely for the purpose of vindicating the private rights of one of the trustees and of enabling him to discharge the duties and liabilities which were imposed upon him by the trust
Another Full Bench of the Madras High Court in Tirumalai Tirupati Devasthanam Committee vs Udiavar Krishnayya Sahnbhaga 1 held that the said section did not apply where the general trustees of a public temple sued the trustees of certain offerings given to the deity for accounts on the ground that in that suit the right of the public was not sought to be enforced but only the personal rights of the trustees qua the trustees
These decisions indicate that section 92 of the Code of Civil Procedure does not impose a general embargo on filing of a suit in a civil court but only directs that suits of the nature mentioned in sub s1 thereof shall not be instituted in a civil court except in conformity with the provisions of the said sub section
If a suit does not fall within the ambit of section 921 of the Code of Civil Pro cedure it is not hit also by sub s2 thereof
When the Madras Hindu 2 of 1927 was passed in respect of the endowments covered by that Act section 73 of that Act replaced section 92 of the Code of Civil Procedure
Sub section 4 thereof which was added by Madras Act X of 1946 read  No suit or other legal proceeding claiming any relief provided in this Act in respect of such administration or management shall be instituted except under and in conformity with the provisions of this Act The expression except under and in conformity with the provisions of this Act in the said sub section is also found in section 93 of the Act
The scope of the said sub section came under judicial scrutiny in Manjeshwar Srimad Anantheswar Temple vs Vaikunta Bhakta 2 Therein Horwill J summarised the legal position reached in respect of the construction of that section thus  It will be seen therefore that from 54 Mad 1011 Vythilinga Pandarasannadhi vs Temple Committee Tinnevelly onwards there was a considerable body of opinion that the general scope of section 73 Hindu  is the same as section 92 Civil PC that the last paragraph of s 
73 of the Act is meant to refer only to the classes of cases referred to in section 731 and other sections of the Act and that suits which do not fall within the scope of these sections can be tried under the general law
I have not come across any case in which these opinions were dissented from or contrary opinions expressed 1 AIR 1943 Madras 466
2 AIR 1943 Madras 228 230
289 Sub section 4 which corresponds to section 93 of the Act was held not to impose a total bar on a civil suit but only confined to suits relating to the classes of cases referred to in section 731 and other sections of the Act
Section 93 of the Act enlarges the scope of section 734 thereof It bars not only suits or legal proceedings in respect of administration or management of religious institutions but also in respect of any other matter or dispute for determining or deciding which provision is made in the Act
By repeating the phrase except under and in conformity with the provisions of the Act which had received authoritative judicial interpretation when it remained in section 734 of the earlier Act the Legislature must be held to have accepted the interpretation put upon the phrase by the courts
It follows that section 93 will apply only to matters for which provision has been made in the Act
It does not bar suits under the general law which do not fall within the scope of any section of the Act
Even so the learned counsel for the respondent contended that Ch
VII of the Act provided a complete machinery for deciding disputes in regard to accounts and therefore no suit for accounting against an ex trustee could be filed in a civil court
This interpretation was accepted by two decisions of the Andhra Pradesh High Court
The decision in Venkataratnam vs Narasimha Rao1 dealt with a case of a suit filed with the permission of the Advocate General for removing the trustee for framing a scheme for the management of the trust property for appointing a new trustee and for accounts and other incidental reliefs
The contesting defendant pleaded inter alia that because of the provisions of the Madras Act 19 of 1951 the suit could not be entertained by the civil court and that section 93 was a bar to such a suit
The Andhra Pradesh High Court held that section 93 of the Act clearly interdicted the determination of the subject matter of the suit by a civil court
The reasoning of the decision is summarized thus  Now the suit is entirely based on allegations of breach of trust and every one of the reliefs prayed for in the plaint can flow from appropriate action that officers named in the Act may take
The first relief sought in the present plaint can result from action taken under section 45 of the Act  the second and third reliefs from action under section 58 the fourth from action under section 60  the 6th relief from action under section 57 and the relief numbered and lettered as 6a from action under section 87
 The High Court also observed In our opinion all these are matters or disputes for determining or deciding which provision is made  in the Act 1  323 290 On that basis it held that section 93 of the Act was a bar to the maintainability of the suit
It may be mentioned that the observation that the fourth relief could result from action under section 60 appears to be a mistake for section 60 applies only to a defunct religious insti tution
In Sri Sarveswaraswami Vari Temple vs Rudrapaka Veerabhadrayya1 Seshachelapati J speaking for the court said thus It will be seen as correctly observed by the learned Subordinate Judge that the section has two limbs
The first limb interdicts suits or other legal proceedings with respect to the administration or management of the re ligious institution
The second limb enacts an embargo on suits and legal proceedings on any other matter in dispute for the determination of which a provision had been made in this Act
 There the suit was by the present trustees for the recovery of the temple properties from the hereditary archakas
The High Court held that such a suit was not one in respect of the administration or management of the temple and therefore it did not attract the embargo entered in the first limb of the section
This decision therefore held that unless the suit fell within the classes of suits mentioned in section 93 of the Act the provisions of the section were not attracted
It leads us to the consideration of the scope of Chapter VII of the Act
If Chapter VII of the Act provides for determining or deciding a dispute in respect of rendition of accounts section 93 of the Act would be attracted
The heading of the said Chapter is Budgets Accounts and Audit
Section 70 provides for the presentation of budgets and the particulars to be mentioned therein
Section 71 enjoins upon a trustee of every institution to keep regular accounts of receipts and disbursements
Section 714 prescribes for an audit of the accounts every year
Section 72 directs the auditor to send a report of the results of the audit to the prescribed authorities
Section 73 enumerates the matters in respect of which the auditor has to send his report
Section 74 directs the prescribed authorities to send the said report to the trustees for remedying the defects pointed out therein
The Area Committee one of the prescribed authorities under section 742 of the Act has to forward to the Commissioner the report of the auditor along with the report of the trustees if any and with his remarks
If the Commissioner thinks that the trustee or any other person is guilty of misappropriation or wilful waste of funds of the ninstitu 1  251
291 tion or of gross neglect resulting in a loss to the institution after making the requisite inquiry certify the amount so lost and direct the trustee or such person to pay within a specified time such amount personally and not from the funds of the religious institution
On the receipt of such an order the trustee can apply to a court to modify or set aside the same
Instead of filing an application to the Court he has an alternative remedy to file an appeal to the Government which shall pass such order as it thinks fit
Under sub section
7 of section 74 an order of surcharge under the section against a trustee shall not bar a suit for accounts against him except in respect of the matter finally dealt with by such order
Sub section 8 thereof provides a machinery for collecting the said amounts from the trustee or other person by way of surcharge
Relying upon the scheme of this Chapter it is contended that it provides an exhaustive and self contained machinery for scrutinizing the accounts for orders of surcharge and to recover the amount surcharged from the trustee or other persons and for a suit to set aside such orders or alternatively for an appeal to the Government and that therefore no suit for rendition of accounts would lie dehors the provisions of the Act
We find it difficult to accept this argument
Chapter VII only provides for a strict supervision of the financial side of the administration of an institution
The scope of the auditor s investigation is limited
It is only an effective substitute for the trustee himself furnishing an audited account
It is concerned only with the current management of a trustee
It does not even exonerate a trustee of his liability to render accounts except to a limited extent mentioned in sub section
7 of section 74  it only facilitates the rendition of accounts
Under sub section
7 of section 74 an order of surcharge under that section against a trustee shall not bar a suit against him except in matters finally dealt with in such order
This shows by necessary implication that a suit can be filed for accounts against a trustee in other respects
In any view it has nothing to do with the management of a temple by a previous trustee
It is con tended that under sub section
5 of section 74 the trustee or any other person aggrieved by such order may file a suit in the civil court or prefer an appeal to the Government questioning the order of the Commissioner and therefore it is open to any member of the public to file a suit under the Act
Any person there only refers to a person mentioned in sub section
3 of section 74 ie a person who is guilty of misappropriation or wilful waste of the funds of the institution etc
It obviously refers to a trustee or some other person in management of the institution who is guilty of misappropriation
We therefore hold that Chapter VII of the Act has no bearing on the question of liability of an ex trustee to render account to the present trustee of his management
Chapter VII does not provide for 292 determining or deciding a dispute in respect of such rendition of accounts
If so it follows that section 93 of the Act is not a bar to the maintainability of such a suit
In the result we set aside the decree of the High Court and restore that of the learned Subordinate Judge
The respondent will pay the costs of the appellant throughout
VPS Appeal allowed


Summary:
The trustees of a tempter filed a suit for rendition of accounts against the ex trustees in respect of their management of the temple
The trial court and the first appellate court in their discretion and having regard to the circumstances of the case directed the defendants to render accounts for about six years prior to the plaintiffs taking possession of the temple
The High Court held that the defendants were not obliged to render accounts in the absence of allegations of acts of negligence or willful default and that section 93 of the Madras Hindu Religious and Charitable Endowments Act 1951 was a bar to the maintainability of the suit
In appeal to this Court HELD  i No trustee can get a discharge unless he renders account of his management irrespective of any question of negligence or wilful default
The defendants therefore were liable to render accounts of their management to the plaintiffs
As regards the period for which they should be made liable to render accounts it would depend upon the facts of each case and there was no Justification for interfering with the discretion of the lower courts in that regard
284 D E 286 C Case law referred to
ii Section 93 is not a bar to the maintainability of the suit
292 A The section only imposes a restriction on suits or other legal proceedings in respect of matters for which a provision has been made in the Act
The legislative history of the section shows that even in regard to suits or other legal proceedings relating to administration or management of religious institutions restriction is imposed only in respect of matters for which a provision is made in the Act
It does not bar suits under the general law which do not fall within the scope of any of the sections of the Act
Chapter VII of the Act on which reliance was placed by the defendants as providing a complete machinery for deciding disputes in regard to accounts has no bearing on the question of the liability of an ex trustee to render account of his management to the present trustee and does not provide for determining or deciding a dispute in respect of such rendition of accounts
C 291 H 292 A Case law referred to