HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT Nos.66 and 83 of 2001 COMMON JUDGMENT: Both the appeals arise out of a claim for mesne profits. Two separate suits were filed by a beneficiary under a Trust Deed, which was created in the year 1938 for the benefit of the pilgrims that visit Vijayawada Durgamma temple. Originally, it was a private trust and subsequently the Government has taken over the management and it has become a public trust for management and appointed Executive Officer and also the other staff. As per the provisions of the Trust Deed, the beneficiary shall get 1/3rd of the income from the property. As the said amounts were not paid, the suit O.S.No.195 of 1984 was filed for recovery of the profits for the period during 1978-1979 to 1982-1983 and a preliminary decree was passed on 14-02- 1992 for rendering of the accounts by the Executive Officer for the above period and to pay 1/3rd share thereof and to file a separate application for appointment of the Commissioner to ascertain the profits. The said preliminary decree was not challenged and it has become final. 2. In pursuance of the preliminary decree, an application i.e. I.A.59 of 1993 was filed for ascertainment of the mesne profits and a Commissioner was appointed and after making enquiry, commissioner has submitted a report and thereafter a final decree was passed by the lower Court on 25-09- 2000 for a sum of Rs.1,17,171.93 ps with subsequent interest at 6% p.a., on the principal sum of Rs.50,786.58 ps which was ascertained as the 1/3rd of the mesne profits due to the plaintiff. 3. Subsequently, the plaintiff also filed another suit O.S.107 of 1989 for the same relief pertaining to the years 1983 to 1988 and a preliminary decree was passed and thereafter I.A.No.58 of 1993 was filed for passing of the final decree and after considering the report of the commissioner, the lower Court passed a final decree on 25-09-2000 for a sum of Rs.74,796.24 ps with interest at 12% p.a., from the respective dates till the date of suit and with subsequent interest at 6% p.a., till the date of realization. Challenging that decrees, both these appeals were filed. 4. Both the appeals are heard together since they relate to the same subject matter and based on the same commissioner’s report. 5. The points that arise for consideration are: 1. Whether the claim of the appellant for deduction of the salaries of the Executive Officer, Sweeper and Attender is legal and sustainable? 2. Whether there was any mistake committed by the Commissioner in including the income for the year 1977-78 which was realized in 1981 as the income for the year 1981? 3. Whether there was any double entry with regard to the income for the year 1978-1979 and whether it is barred by the claim of the plaintiff? 4. Whether the interest granted by the Commissioner during enquiry and also accepted by the Court is legal and enforceable? 6. POINTS:- The learned counsel for the appellant strongly contends that while taking into consideration the expenditure of the trust from the year 1978-79 to 1982- 1983 and subsequently the salaries of the Executive Officer, Attender and Sweeper were not taken into consideration though the Trust Deed provides that some expenditure has to be met from the income for the maintenance of the accounts. According to him, the salaries were paid from the income of the temple and therefore without deducting those salaries, the defendant cannot be directed to pay such amount as decreed by the lower Court. 7. So far as this contention is concerned, evidently, the trust was a private trust originally and the creator of the trust never intended that it should be taken over by the Government or should be managed by the Executive Officer or the staff of the Government. But in course of time because of the improvement of the property and the income that is being derived from the property, as it has come within the purview of a public trust, the government has assumed management and Executive Officer was looking after the management of this trust property. Evidently, the Executive Officer who is looking after this trust is not attached to this particular property alone. He is Executive Officer to several temples and also other trust properties within the area where he is working under the Endowment Department. Therefore, it is futile to argue that the salaries of the staff employed by the Government shall be deducted from the trust amount. In-fact there is no obligation as such on the part of the beneficiary of the trustee to share the income towards the expenditure of the Government staff. In-fact the Government, as it is realizing the income from the property, can as well pay from its share if it so wishes that the expenditure should be met by the income from the property. Therefore, from the above reasoning it is quite clear that the claim of the appellant that the expenditure of salaries of the Executive Officer and other Government employees shall be apportioned from the income of the plaintiff cannot be accepted. However, as can be seen from the report of the learned Commissioner, he has considered some maintenance charges and also some servant charges were being deducted from year to year and if no meager amount has been omitted by the commissioner, I don’t think it is a case where the Court should find fault with the final figures arrived at by the learned Commissioner. 8. Except the above objections, so far as the income and other expenditure mentioned by the learned Commissioner, there are no serious objections and in-fact the Commissioner report is based on evidence and documents. But however, as rightly contended by the counsel for the appellant, one item which is a sum of Rs.3,990/- pertaining to the year 1997- 1978 which was realized in the year 1981 is said to have been taken as income pertaining the earlier suit and this is beyond the scope of the suit and therefore this amount has to be deducted. 9. Learned counsel for the appellant further contends that the commissioner has mistakenly added the income for the year 1978-1979 twice which was realized during 1981 and in 1982-1983 and also shown another entry for the same year and therefore it is incorrect. 10. This is a question of fact and in-fact, no arguments seem to have been advanced before the lower Court on this aspect and from the reading of the Commissioner’s report, I do not find much error committed by him and amount involved is also very small and I do not want to disturb the income assessed by the Commissioner even if it is not realized as claimed by the appellant, since it is the duty of the Executive Officer to get the amount realized and if the amount is not realized to take steps for realization of the same. 11. So far as granting of the interest by the Commissioner and also by the lower Court is concerned, in-fact as contended by the learned counsel for the appellant, the preliminary decree is silent about the payment of interest on the past profits to be determined by the Commissioner or the future profits which are likely to arise. Therefore, under Section 34(2) of the Civil Procedure Code, when the decree is silent about granting of the interest, it shall be deemed that the Court has refused to grant the interest on the amount found due. But however the right of the respondent-petitioner to claim the interest from the date of the application for passing of the final decree cannot be denied because the final decree has provided for payment of the interest on such amount. Therefore, I find that there is some force in the contention for the appellant that granting of the interest on the amount found due earlier cannot be granted as the preliminary decree is silent and the ends of justice would meet if the decree is passed for the amount ascertained by the Commissioner with interest from the date of the final decree petition till the date of realization. Points are answered accordingly. 12. Therefore, I find that in A.S.No.83 of 2001 after deducting a sum of Rs.3990/-, the respondent-petitioner will be entitled for a sum of Rs.46,787.58 ps (Rs.50,786.58 ps – Rs.3,999/-)with interest at 12% p.a., from the date of final decree petition till the date of final decree and thereafter at 6% p.a., till the date of realization. Accordingly, A.S.No.83 of 2001 is allowed. 13. In A.S.No.66 of 2001 the respondent-petitioner would be found entitled for a sum of Rs.74,796.24 ps with interest at 12% p.a., from the date of final decree petition till the date of final decree and thereafter at 6% p.a., till the date of realization. 14. With the above modifications, both the appeals are allowed. Each party do bear their own costs. _______________________________ JUSTICE N.R.L. NAGESWARA RAO 21st March, 2011 VJL