judgement:
Appeal No. 556 of 1964.
Appeal from the judgment and order dated March, 24, 1961 of the Assam and Nagaland High Court in M. A. (F) No. 29 of 1956.
B. Sen and D. N. Mukherjee for the appellant.
section G. Patwardhan and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by Wanchoo, J.
This is an appeal on a certificate granted by the Assam High Court and arises in the following circums tances.
The appellant had obtained a money decree against Thakur Prosad Joyaswal and others in 1947.
As the decree remained unsatisfied it was transferred from Calcutta to Gauhati for execution.
On May 2, 1953, an application was made for execution in the court at Gauhati by attachment under 0.
XXI, r. 46 of the Code of Civil Procedure of certain movable property of the judgment debtors which was said to be in the possession of the Sub Divisional Officer, Military Engineering Service, Pandu.
Consequently an order was issued under O.XXI r. 46 (1)(c)(iii) prohibiting the Sub Divisional Officer from parting with 208 the property of the judgment debtors.
It may be mentioned that the Sub Divisional Officer is subordinate to the Garrison Engineer, Shillong.
Though certain applications were put in on behalf of the Sub Divisional Officer before the court, it was only on February 1, 1954 that the Acting Garrison Engineer, Shillong stated before the court that the movable property in question (i.e. 41 R.S. joists) had been sold and delivered as far back as November 22, 1951 to Messrs. Ghunilal Kanhaiyalal of Palasbari.
This objection was considered by the execution court and it held on September 25, 1964 that this belated statement that the property in question had been sold as far back as November 22, 1951 could not be believed.
The execution court therefore dismissed the objection and ordered execution to proceed.
Thereafter orders were issued for the production of the joists but they were not produced.
Thereupon the appellant applied that the Union of India should be considered to be the principal judgment debtor and execution should be levied against the Union of India.
The Union of India objected to this and on April 21, 1956 the objection of the Union of India was dismissed and the execution court held that the Union of India be treated as the principal judgment debtor and be made liable to the extent of the proceeds of the attached joists.
Later on the same day, a further legal argument was raised on behalf of the Union of India to the effect that as there was no surety bond the Union of India could not be treated as the principal judgment debtor.
This objection was heard and finally the court ordered on April 28, 1956 that even though there was no surety bond executed on behalf of the Union ,of India it was liable as a surety.
Thereupon the Union of India appealed to the High Court against the order of April 28, 1956.
The High Court allowed the appeal and set aside the order ,of the execution court holding that no action could be taken against the Union of India under section 145 of the Code of Civil Procedure upon which the execution court had apparently relied.
Thereupon the appellant asked for and obtained a certificate from the High Court, and that is how the matter has come before us.
We are of opinion that there is no force in this appeal.
Order XXI r. 46(i) provides that in the case of other movable property not in the possession of the judgment debtor, except property deposited in or in the custody of any court, the attachment shall be made by a written order prohibiting the person in possession of the same from giving it over to the judgment debtor.
The necessary prohibitory order had been issued by the execution court in this case with respect to 41 joists and had been received by the Sub Divisional Officer.
Such a prohibitory order is sufficient for the purpose of attachment, though the 20 9 property mentioned therein is not actually taken in possession by the Court.
After attachment has been made in the manner provided by r. 46 the next step that the court has to take is to order sale of the property attached.
Then comes O.XXI r. 79 which provides that where the property sold is movable property of which actual seizure has been made, it shall be delivered to the purchaser [see r. 79(1)].
But where the property sold is movable property in the possession of some person other than the judgment debtor, the delivery thereof to the purchaser shall be made by giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser [see r. 79 (2)].
In the present case there was no actual seizure of the property but attachment had been made under O.XXI r. 46 (1).
The proper procedure for the court to follow was to sell the property under O.XXI r. 64 and then pass an order under O.XXI r. 79 (2) for its delivery in the manner provided therein.
The court however went on asking the Sub Divisional Officer to produce the property and when it was not produced it proceeded under section 145 of the Code.
We agree with the High Court that section 145 has no application in the present case.
Section 145 runs thus : "Where any person has become liable as surety (a) for the performance of any decree or any part thereof, or (b) for the restitution of any property taken in execution of a decree, or (c) for the payment of any money, or for the fulfilment of any condition imposed on any person, under an order of the court in any suit or in any proceeding consequent thereon, the decree or order may be executed against him, to the extent to which he has rendered himself personally liable in the manner therein provided for the execution of the decrees and such person shall, for the purposes of appeal be deemed a party within the meaning of section 47: Provided that such notice as the court in each case thinks sufficient has been given to the surety.
" A bare perusal of section 145 shows that it applies when a person has become liable as surety.
Now the mere fact that an attachment was made of 41 joists said to be lying with the Sub Divisional Officer by the issue of the prohibitory order under O.XXI r. 46 does not make the Sub Divisional Officer or the Union of India a surety for the performance of the decree which was in execution.
There was no surety bond taken from the Sub Divisional Officer and the joists 2 1 0 were not actually seized by the court and handed over to the Sub Divisional Officer as suparddar on the basis of a surety bond.
If that had been done some question may have arisen whether the Sub Divisional Officer did become a surety for the performance of the decree or part thereof.
But where merely a prohibitory order is issued under 0.
XXI r. 46(1) and attachment is made in that manner, there can be no question of the person to whom the prohibitory order is issued becoming a surety for the performance of the decree.
We therefore agree with the High Court that section 145 of the Code was not applicable to this case and the execution court was completely wrong in holding that the Sub Divisional Officer became a surety simply because attachment had been made in the manner provided in O.XXI r. 46 (1),.
The appeal fails and is hereby dismissed with costs to the Union of India.
V.P.S. Appeal dismissed.

summary:
The appellant, who was the decree holder, applied for the execution of the decree.
The Sub Divisional Officer, Military Engineering Service, was in possession of some movable property of the judgment debtor.
The Court ordered attachment under 0.
XXI, r. 46(1), Civil Procedure Code by prohibiting the Sub divisional Officer from handing over the property to the judgment debtor.
Thereafter, in stead of following the proper price(lure which was to sell the property under O.XXI, r. 64 and then pass an order for its delivery under O.XXI, r. 79(2), the Court ordered the Sub divisional Officer to produce the property, and, when it was not produced, proceeded under section 145 of the Code treating the Union of India as the principal judgment debtor.
HELD: Section 145 of the Code was not applicable to the cage.
That section only applies when a person becomes liable as a surety and the execution Court was wrong in holding that the Sub divisional Officer became a surety simply because attachment had been made by the prohibitory order under O.XXI, r. 46(1).
[209 H, 210 B C]


judgement:
Appeal No. 501 of 1964.
Appeal by special leave from the judgment and order dated February 27, 1961 of the Andhra Pradesh High Court in section p. A. No. 137 of 1959.
R. Ganapath Iyer, for the appellant.
P. Ram Reddy and T. V R. Tatachari, for respondent No. 1.
The Judgment of the Court was delivered by Subba Rao, C. J.
This appeal by special leave raises the question, whether the land described as "Vantari Muttah" in Talluru village was included in the assets of Jaggampetta A and D Zamindari estates, in Peddapuram taluk, East Godavari District, Andhra Pradesh, at the time of the Permanent Settlement.
The undisputed facts may be briefly narrated.
The said Muttah comprises an area of 50 puttis, i.e. about 400 acres, and five tanks are situate therein.
The said Muttah was granted to the predecessor in interest of the appellants and respondents 2 to 5 long before the Permanent Settlement in consideration of payment of Kuttubadi of a sum of Rs. 620/ .
At the time of Inam Settlement, it was not enfranchised by the Government.
After the Madras Estates (Abolition and Conversion into Ryotwari) Act XXV] of 1948 was passed, on September 22, 1952, by a notification issued thereunder, the Government took over the Jagganpeta Estate.
In April 1953, when the appellants and respondents 2 to 5 183 tried to effect repairs to the tanks, the village munsif of Talluru tinder instructions from the 1 st respondent, obstructed them from doing so.
Thereupon, the appellants filed O. section No. 269 of 1953 in the Court of the District Munsif, Peddapuram, against the State of Andhra and others for a declaration that the 1st respondent, had no right to the said tanks and for an injunction restraining it and its subordinates from interfering with their rights in the said tanks.
The 1st respondent resisted the suit inter alia on two grounds, namely, (i) the entire Vantari Muttah was included in the assets of the said estate of Jaggampeta at the time of the Permanent Settlement, and (ii) in any view, Linder the grant, the predecessor in interest of the appellants and respondents 2 to 5 was given only the land and not the tanks therein.
The learned District Munsif upheld the claim of the appellants to the said tanks and decreed the suit.
On appeal, the learned Subordinate Judge Kakinada, held that the said land was included in the assets of the Zamindari at the time of the Permanent Settlement and, on that finding, he dismissed the Suit.
On further appeal, Kumarayya, J. of the Andhra Pradesh High Court agreed with the learned District Munsif.
But, on Letters Patent appeal, a Division Bench of the HighCourt,consisting of ChandraReddy,C.J.and ChandrasekharaSastry,J.,agreed with the learned Subordinate Judge.
The result was that the Suit of the appellants was dismissed with costs throughout.
Hence the present appeal.
On the pleadings, two questions arose for consideration, namely, (i) whether the Muttah was included in the assets of the Zamindari at the time of the Permanent Settlement, and (ii) even if the said Muttah was excluded from the assets of the Zamindari, whether the original grant comprised the tanks.
The second point need not detain us, for, though Kumarayya, 1.
held on the said point in favour of the appellants, the Division Bench did not express any opinion thereon, in view of its decision on the first point.
As we are agreeing with the Division Bench on the first point, it is not necessary for us to express our opinion on the second point.
Apropos the first point, Mr. R. Ganapathy Iyer, learned counsel for the appellants, contended that the said Muttah was granted to the prodecessor in interest of the appellants and respondents 2 to 5 long before the Permanent Settlement by the then Zamindar for public services, Subject to a payment of favourable sent, that, subsequently, the services were discontinued, but the grant was continued subject to the payment of favourable rent, that at the time of the Permanent Settlement the said Muttah was excluded from the assets of the Zamindari and that, therefore, the and Muttah was outside the scope of the notification issue by the Government under Madras Act XXVI of 1948.
184 Mr P. Ram Reddy, learned counsel for the 1st respondent, the State of Andhra Pradesh, argued that the grant was subject to the payment of the full I assessment, that the said assessment was paid partly in cash and partly by personal services to the Zamindar, that: at the time of the Permanent Settlement the said Muttah was included in the assets of the Zamindari and that, as it was a part of the Zamindari, the Government, even at the time of the Inam Settlement, did not take any steps to enfranchise the same.
Before we advert to the evidence, it will be convenient to notice briefly, at this stage, the relevant law on the subject.
Under section 3(b) of the Estates Abolition Act, the entire estate, including inter alia the tanks, shall stand transferred to the Government and vest in it free of all encumbrances.
This section would be attracted only if the suit land was part of an estate as defined under the Act.
It cannot be disputed that if the land was included in the assets of the estate at the time of the Permanent Settlement, it would be a part of the estate.
Section 4 of Regulation XXV of 1802 enabled the Government to exclude from the said assets certain items.
Under the relevant part of the said section, the Government was empowered to exclude from the assets of the Zamindari at the time of the Permanent Settlement "lands exempt from the payment of public revenue and of all other lands paying only favourable quit rents".
Besides these two categories of grants of lands, namely, lands exempt from payment of public revenue and lands paying only favourable quit rents, there was another category of lands which were granted subject to the payment of favourable quit rents and also subject to the performance of certain services.
The said services might be public or private services, i.e., services to the community or services to the grantor.
The third category of land was the subject matter of decision in Mahaboob Sarafarajawant Sri Raja Parthasarathy Appa Rao Bahadur Zamindari Garu vs The Secretary of State(1).
Where lands in a zamindari were pre settlement inams granted on condition of rendering personal service to the zamindar and paying a favourable quit rent, the Madras High Court held that as the grant was for services purely personal to the zamindar, prima facie the inams formed part of the assets of the zamindari.
The reason for this rule of presumption was stated by Sankaran Nair, J. thus : According to these cases, therefore, when lands were held on condition that the holders were to render certain services which were purely personal to the Zamindar and in which the Government were not interested, i.e., when such services had nothing to do with police or magisterial duties, or did not concern the community or the villagers, (1) (1913) I.L.R. Madras 620, 632.
185 then the Government were entitled to include in the zamindari assets for setting the peshkash the income from the lands allowed in lieu of such services which were not allowed for in the settlement; there is therefore no presumption they did not do so or treated the land as free from payment.
" If the services were purely personal to the zamindari, there was no reason why the Government would not have included the land in the assets of the zamindari for the purpose for fixing the peshkash.
The same result was arrived at by a different process.
Under section 4 of Regulation XXV of 1802, lands paying only favourable quit rents might be excluded from the assets of the zamindari.
If the grantee paid part of the assessment in cash and part in the shape of personal services to the zamindari, it cannot be said that he held the lands paying only favourable quit rent to the zamindar.
The aspect was brought out with clarity by Venkatasubba Rao, J., in Secretary of State vs Rajah Vasireddy(1).
Therein, the learned Judge said thus : "In the case of personal service inams, was there any reason at the time of the permanent settlement for treating them as "lands exempt from the payment of public revenue ?" The zamindar was receiving income from such lands, though not of course in the shape of cash rent but in the shape of services; for the rendering of services was one mode of paying the rent.
It was reasonable therefore, to treat them at the settlement as revenue paying lands.
" The legal position may therefore put thus; Under section 4 of Regulation XXV of 1802 the Government was empowered to exclude income from lakhiraj lands, i.e., lands exempt from payment of public revenue and of all lands paying only favourable quit rents, from the assets of the zamindari at the time of the permanent settlement.
If the lands fall squarely within the said two categories, there is a presumption that they were excluded from the asse 's of the zamindari.
But if the grant of land was subject to performance of personal services to the zamindar or subject to the payment of favourable rents and also performance of personal service to the zamindar, there is no such presumption.
Indeed, the presumption is that in such a case the income from the land was not excluded from the assets of the zamindari.
The reason for the rule is that in one case the personal services are equated with the full assessment and in the other the favourable rent together with the personal services is equated with full assessment.
If the zamindar in one shape or another was getting the full assessment on the lands, there was no reason why the Government would have fore (1) A.I.R. 1929 Madras 676, 682.
CI/66 13 186 gone its revenue by excluding such lands from the assets of the zamindari.
With this background, let us look at the documentary evidence adduced in the case.
The relevant grant is not produced.
The permanent settlement accounts are not before us.
The sanad is not placed on the evidence.
Indeed, no document of a date prior to the permanent settlement is exhibited.
The question falls to be decided only on the basis of the documents that came into existence subsequent to the permanent settlement.
A 3 is a Kaifat dated April 22,1818 pertaining to 'manyams ' in the village of Jaggampadu.
The relevant part of the document reads : "Thimmaraju Maharajulungaru got debited in the accounts of the said village, and granted towards maintenance of Malireddy Gopalu for his service.
He (Raja) fixed three hundred and fifty varahas and continued it so in the same manner receiving service from him.
Afterwards Ammannagaru settled that cash has to be paid to the aforesaid 'diwanam ' (estate) and that the remaining shall be enjoyed as long as the service is done to the abovementioned people.
In that manner it was enjoyed till last year.
For the current year it was done as 'Amani ' (Government supervision).
" This document shows that the grantee and his heirs were to enjoy the land so long as service was done to the Raja.
The expression "abovementioned people" can only refer to the Raja '.
The service, therefore, was only personal service to the Raja.
A 4 is an order of the District Collector of Rajahmundry to the Estate Amin or Jaggampeta.
This letter is dated September 5, 1829.
This document shows that the agent of the Raja complained to the Collector that the Vantarlu of Thalluri village were granted lands assessed to a kist of Rs. 2140, that for their service the late Raja granted remission of Rs. 620, that they were paying every year the balance amount to the Raja, that after the death of the late Raja they did not present themselves to the minor Raja but were doing service to some other zamindar and that, therefore, an order might be issued directing them to pay to the then Raja the entire assessment.
On the basis of that request, the Collector directed the Amin to make the necessary enquiries.
This document clearly shows that the Zamindar 's agent asserted as early as 1928 that the Vantarlu were given remis 187 sion by the zamindar only for doing personal services to him.
The complaint made by the agent that the Vantarlu, instead of doing services to the minor Raja and attending on him, were doing services to another zamindar is a clear indication that the services mentioned in that order were the personal services to the Raja.
Reliance was placed on the statement in the said order "did not even give a reply to the message sent to them during the time of the dacoities and disturbances occurred recently, asking them to be present before him" and contended that the services mentioned therein were the services for the purpose of putting down dacoities and disturbances, which were services to the community.
The said statement only describes when the notice was sent and not the nature of the services.
Even if it described the nature of the services, their personal attendance on the Raja during the troubled times could not make them any the less personal services to him.
It was also said that the fact that the Collector 's interference was sought was indicative of the public nature of the services.
The Collector in those days was a person of power and prestige in a district and there was nothing unusual in a zamindar seeking his help in the matter of collecting his dues from recalcitrant serviceholders.
exhibit A 5 is an order dated December 11, 1829 issued by the Collector of Rajahmundry to the Amin of Jaggampeta estate in pursuance of a petition filed by the Manager of the estate.
Assertions similar to those found in exhibit A 4 were made by the Manager of the Estate in the petition filed by him to the Collector which is referred to in exhibit A 5. exhibit A 7 is a petition dated April 24, 1830 filed by the Vantarlu of Thalluru village to the Enquiry Collector, Rajahmundry.
In. that petition it was admitted that the Raja granted a land to them assessed to a kist of 310 varahas for their living, that they were doing services to the Samastanam, that after the death of the Raja, his widow told them that she would adopt a boy and that during his minority their services were not required but in view of their past services to her ancestors she would allow them to enjoy the land only on payment of half the assessment.
After narrating all the subsequent events, the petitioners went on to say : "From the time when Lakshminarasayya got the 'nimebadi ' done in that manner, we the sharers by obtaining the goodwill of Sri Raja Vatchavayi Venkatapathigaru, got the present and were paying 155 varahs to the estate and were in enjoyment of 50 putties of land assessed to a kist of Rs. 3101 as 'vasathi '.
This petition also supports the case of the Government that the Vantarlu were doing personal services to the zamindar and that it was the zamindar who gave a remission of assessment in lieu of their services.
The fact that Lakshminarasayya dispensed with 188 the services of the Vantarlu during the minority of the adopted son shows that the services were only personal to the zamindar, for, if they were public services, the fact that the zamindar was a minor would be irrelevant.
The learned counsel for the appellants contended on the basis of this document that whatever might be the conditions of the grant at the time of its origin before the permanent settlement, the zamindar put an end to the services and confirmed the grant subject to the payment of favourable quit rent and, therefore, the grant squarely fell within the scope of section 4.
of the said Regulation (XXV of 1802).
But this document contains only an assertion on the part of the Vantarlu : and even if that assertion be true, it would only show that Lakshminarasayya did not dispense with the services for good but only exempted the Vantarlu from doing the services till the minor zamindar attained majority.
exhibit A 16 dated November 9, dated February 27, 1832 and exhibit A 18 dated March 8, 1833 are similar orders issued by the Collector to the Amin of Jaggampeta.
They contain recitals similar to those contained in Exs.
A 3, A 4 and A 5.
exhibit A 10 is an order dated July 7, 1831 issued by the Collector to the Amin of Jaggampeta.
Therein, when the Manager of the estate resumed the land and gave it to another on the ground that the Vantarlu were not paying the assessments, the Collector directed that they should be put back in possession of the said land.
But, in doing so, the Collector did not say that the Zamindar had no right to resume the land but only observed that it did not do any credit to the estate to dispossess Muttadars of the land and grant it to some one else.
This document does not throw much light on the question raised before us.
Lastly, we have the fact that the Government did not take any steps to enfranchise the land.
For the default of the Government, no doubt the appellants cannot be made to suffer.
But that circumstance probablises the contention of the Government that the Muttah was not included in the assets of the zamindari, for, if included it is not likely that the Government would not have enfranchised it and imposed assessment thereon.
Strong reliance was placed on the expressions "Vantarlu" and "manyam" found in some of the documents and an argument was made that the said expressions indicated that the services were public services.
The expression "manyam" is found in exhibit
In Wilson 's Glossary "manyam" is defined thus : "Land in the south of India, held either at a low assessment, or altogether free, in consideration of services done to the state or community, as in the case of the officers.
189 and servants of a village. . the term is also laxly applied to any free grant or perquisite held in hereditary right by members of a village community.
" The expression "manyam" does not, therefore, necessarily mean a grant for public services.
It is also used in a loose sense to indicate an inam.
That apart, the word "manyam" is only found in a Kaifiat of 1818 and in no other ducument it finds a place.
Be that as it may, such an ambiguous expression in a solitary document which came into existence in 1818 cannot outweigh the other evidence which we have considered in detail.
Nor does the expression "Vantarlu" indicate public servants.
It means "foot servants"; it may also be used to denote a sepoy.
Whatever may be its meaning, the name is not decisive of the nature of the service.
A foot servant or a sepoy could certainly do personal service to a zamindar : he might look after his safety.
The following facts emerge from a consideration of the docu mentary evidence.
The grant was a pre settlement grant.
The land was granted to the Vantarlu subject to the payment of favourable rent and also subject to the performance of personal services to the zamindar.
The Government, either before the permanent settlement or subsequent thereto, never claimed a right to resume the same.
Indeed, it was the zamindar who was giving remissions to the Vantarlu whenever their services were not required.
There is a presumption that such a land was not excluded from the assets of the zamindari and the evidence adduced in the case not only does not rebut that presumption but also, to some extent, supports it.
We, therefore, agree with the Division Bench of the High Court holding that the Vantari Muttah of the appellants was part of the Jaggampeta estate and was, therefore, covered by the notification issued by the Government under the Estates Abolition Act, 1948.
In the result, the appeal fails and is dismissed with costs of the first respondent.
G.C. Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellants and respondents 2 to 5 were owners of Jaggamapeta estate in the East Godavari District of Andhra Pradesh.
The Vantari Muttah ', a piece of land about 400 acres in area, was granted to their predecessor in interest in return for services as vantarlu ' or 'foot set,#ants ' long before the permanent settlement.
After the passing of the Madras Estates, (Abolition and Conversion into Ryotwari) Act XXVI of 1948 dispute arose whether the land formed part of the Jaggampeta estate for if it did not, the Act would not apply to it.
After various stages of litigation a Division Bench of the High Court decided against the apellants.
They came to this Court with special leave.
it was contended on behalf of the appellants that the said Muttah was granted to their predecessor in interesi before the permanent settlement by the then Zamindar for public services subject to a payment of favourable rent, that, subsequently, the services were discontinued,but the grant was continued subject to the payment of favourable rent, that at the time of the permanent settlement the said Mutta was excluded from the assets of the Zamindari and that therefore the said Muttah.
was outside the scope of the notification issued by the Government under Madras Act XXVI of 1948.
On behalf of the respondent State it was urged that the grant was subject to the payment of the full asses men,, that the said assessment was paid partly in cash and partly by personal services to the, Zamindar, that at the time of the Permanent Settlement the said Muttah was included in the assets of the Zamindari and that as it was a part of the Zamindari the Government at the time of the Inam Settlement did not take any steps to enfranchise the same.
HELD:(i) Under section 4 of the Regulation XXV of 1802 the Government was empowered to exclude income from lakhiraj lands i.e. lands exempt from payment of public revenue and of all lands paying only favouable quit rents, from the assets of the Zamindari at the time of the Permanent Settlement.
If the lands fall squarely within the mid two categories, there is a presumption that they we re excluded from the assets of the Zamindari.
But if the grant of land was subject to performance of personal services to the Zamindar or subject to the payment of favourable rents and also performance of personal services to the Zamindar, there is no such presumption.
Indeed the presumption is that in such a case the income from the land was not excluded from the assets of the Zamindari.
The reason for the rule is that in one case the personal service are equated with the, full assessment and in the other 182 the favourable rent together with the personal services is equated with full assessment.
If the Zamindar in one shape or another was getting the full assessment on the lands there was no reason why the Government would have foregone its revenue by excluding such lands from the assets of the Zamindari.
[185 F] Mahaboob Sarafarajewant Sri Raja Parthasarathy Appa Rao Bahadur Zamindari Garu vs The Secretary of State, Mad. 620 and Secretary of State, vs Rejah Vasiredy, A.I.R. 1929 Mad. 676, referred to.
(ii) The grant in the present case was a pre settlement grant.
The land was granted to the Vantarlu subject to the payment of favourable rent and also subject to the performance of personal services to the Zamindar.
The Government either before the permanent settlement or subsequent thereto never claimed a right to resume the same.
Indeed it was the Zamindar who was giving remissions to the Vantarlu Whenever their services were not required.
There is a presumption that such I land was not excluded from the assets of the Zamindari and the evidence adduced in the case not only did not rebut that presumption but also to some extent supported it.
The Division Bench of the High Court was therefore right in holding that the Vantari Muttah was part of the estate of the appellants and respondents 2 to 5 and was therefore, covered by the notification issued by the Government under the Estates Abolition Act, 1948.
[189 D]


judgement:
Appeal No. 359 of 1964.
Appeal by special leave from the judgment and decree dated September 29, 1961 of the Madhya Pradesh High Court in First Appeal No. 123 of 1958.
B. Sen J.P. Dube and I.N. Shroff, for the appellant B. C. Misra and section section Shukla, for the respondent.
The Judgment of the Court was delivered by Shah, J.
This is an appeal with special leave against the decree passed by the High Court of Madhya Pradesh in appeal No. 123 of 1958 confirming the decree of the Additional District Judge, Hoshangabad, decreeing the plaintiff 's suit.
The State of Madhya Pradesh has appealed to this Court.
At an auction held on July 20, 1954 by the Divisional Forest Officer, Hoshangabad Division, for sale of "felled trees" in Coupe No. 66 Dhekna, Range Seoni, one Jagatram was declared the highest bidder and the trees were sold to him for Rs. 12,100.
The amount of the bid was payable in four instalments of Rs. 3,025 each: the first instalment to be paid immediately on acceptance of the bid, the second on December 1, 1954, the third on February 1, 1955 and the fourth on May 1, 1955.
Jagatram executed a contract in favour of the Governor of Madhya Pradesh in which were incorporated the terms and conditions of the sale.
The following are the material terms of the contract: "2.
The quantity of the said forest produce to be sold under this contract shall be the quantity which may exist at the time of executing this indenture or may come into existence thereafter in the contract area all of which forest contractor by collect and remove from it in accordance with the conditions herein contained during the period from the date the forest contractor furnishes the necessary coupe boundary certificate after inspection of the contract area to the 30th day of June, 1955 3.
The forest contractor shall commence his work of collecting and removing the said forest produce within one month after furnishing the necessary certificate mentioned in clause 2 above 5.
The said forest produce shall be removed by the forest contractor from the contract area by the routes specified in the following table and shall be presented by him for examination at one or other of the depots specified in that table: (Table Omitted) 6.
The Forest contractor shall be subject to the Forest Contract Rules as amended from time to time up C. I.166 4 268 and the Rules shall be deemed to be part of this contract in so far as they are applicable thereto : . . " Jagatram paid the first instalment due under the contract on July 28, 1954, and subscribed his signature to the terms of the contract.
Nathuram and Kaluram stood sureties for him and executed the following bond: "Whereas the Governor in order to secure the due performance of conditions of the above contract demanded security from the forest contractor, I (1) Nathuram son of Kashiram resident of Chaterkheda (2) Kaluram son of Jhandusingh resident of PipaliyaKalan, by occupation Agriculturists, surety on behalf of the forest contractor, undertake to discharge the liability of the forest contractor in case of any act, omission, negligence or default on the part; of the forest contractor for any sum which may become payable by the forest contractor to the Governor by or under the conditions of the above contract.
I also agree that any sum which may be payable by me to the Governor under the terms of this bond shall be recoverable in the same manner as an arrear of land revenue.
" Jagatram removed almost the entire quantity of trees sold to him, but since he did not pay the remaining three instalments of the price, the State of Madhya Pradesh took proceedings to recover from Kaluram the amount due by Jagatram as arrears of land revenue.
Kaluram then commenced an action against the State of Madhya Pradesh for a declaration that he was not liable to pay the arrears of forest dues recoverable from Jagatram and for an injunction restraining the State from realising or from continuing the recovery proceedings with regard to those forest dues from him.
The principal ground in support of the claim was that the forest authorities gave time to Jagatram and omitted to take steps which their duty to the surety required them to take i.e., prompt seizure and sale of the trees after the second instalment had fallen due, and since on that account his eventual remedy against Jagatram was impaired, he Kaluram stood discharged from liability as surety.
The Trial Court held that the forest officers were negligent in allowing the contractor Jagatram to remove the trees sold, and on that account the security of the surety was impaired, and the surety stood discharged for the whole amount recoverable from the contractor.
The High Court of Madhya Pradesh confirmed the decree of the Trial Court.
269 By virtue of cl. 6 of the terms of the contract, the relevant Forest Contract Rules were to be treated as part of the contract between Jagatram and the State.
By r. 2 it was provided that all contracts whereby the Government sells forest produce to a purchaser shall be subject to the rules, insofar as they are applicable, and that those rules ' shall be deemed to be binding on every forest contractor not only as rules made under the Forest Act, but also as conditions ' of his forest contract.
By r. 6 the forest contractor is required to carry with him an "accessory licence" entitling him and his servants and agents to go upon the land specified in the contract and to do all acts necessary for the proper extraction of the forest produce purchased under the contract.
Rule 8 provides: "Where the consideration payable to Government under a forest contract is payable in instalments and the Divisional Forest Officer at any time before the last instalment is paid, considers that the value of the forest produce removed by the contractor exceeds the amount of the instalments already paid, the Divisional Forest Officer may stop further removal until the contractor has paid such further sum as may, in his opinion, be sufficient to cover such excess: Provided that, if in the opinion of any Forest Officer not below the rank of a Range Officer, it is necessary to take immediate action to prevent a breach of this rule, such Forest Officer (i) may by notice in writing serve on the contractor or his agent, if any, stating the grounds for the direction, require the contractor or his agent to stop further removal of the forest produce from the contract area; and By r. 12 a forest contractor is prohibited from removing any forest produce from the contract area, unless it is accompanied by a pass in the prescribed form signed by the contractor or his authorized agent.
By r. 13 the forest contractor is required to remove forest produce only by the route or routes specified by rules under the Act, or by his forest contract, and to take all forest produce removed by him to such depots or places as may be similarly prescribed, for check and examination.
Rule 16 requires the forest contractor to keep accounts of the quantity of forest produce removed by him from the contract area, and that such accounts shall be open to inspection at any time by the Divisional Forest Officer or by any forest subordinate duly authorized in that behalf.
Rule 29(1) provides that a forest contract may be, terminated by the Office empowered to execute it on behalf of the Government, if the Forest 270 contractor makes default in the payment of the consideration for his contract or of any instalment thereof, or commits a breach of any of the other conditions of his contract.
By sub r.
(2) of r. 29 it is provided that such termination shall be notified to the forest contractor by a written notice and thereupon all the contractor 's rights under the contract including all accessory licences shall cease and all the forest produce remaining within the contract area or at the depots specified under r. 13 shall become the absolute property of Government.
Rule 33(1) provides that all forest produce removed from a contract area in accordance with the rules and duly checked and passed at the depots established under r. 13 shall be at the absolute disposal of the forest contractor.
By cl.
(2) of r. 33 it is provided that the forest contractor may assign any forest produce not so removed, but such assignment shall not be valid unless it is made with the previous sanction in writing of the forest officer who executed the contract.
It is also necessary to refer to sections 82 & 83 of the Indian Forest Act 16 of 1927.
By section 82 it is provided that all money payable to the Government under the Act or under any rule made under the Act, or on account of the price of any forest produce, or of expenses incurred in the execution of the Act in.
respect of such produce, may, if not paid when due, be recovered as if it were an arrear of land revenue.
Section 83 provides: "(1) When any such money is payable for or in respect of any forest produce, the amount thereof shall be deemed to be a first charge on such produce, and such produce may be taken possession of by a Forest officer until such amount has been paid.
(2) If such amount is not paid when due, the Forest Officer may sell such produce by public auction, and the proceeds of the sale shall be applied first in discharging such amount.
(3). . . . " Beside the contractual right which is conferred upon the State by r. 8 to stop removal of goods in value exceeding the amount already paid by the contractor, where the consideration is payable in instalments the statute has imposed a charge upon the goods sold, inter alia, for the price thereof, and has authorised the Forest Officer to take possession of the goods until such amount is paid.
If the amount is not paid when due, the Forest Officer may sell the produce by public auction.
The State Government has therefore under the terms of the contract and by virtue of the statute, even though the property in the goods has passed to the contractor, the right to stop removal of the goods and take possession thereof till the amount due is paid and to sell the goods if the amount is not 271 paid when due; the State has also the power to prohibit removal, of the goods when the value of the forest produce removed by the contractor exceeds the amount of instalments already paid, to check and examine the goods, and to terminate the contract in case of default in payment of the amount due and to take possession of the goods either in the contract area or in the depots of the contractor.
The contract between Jagatram and the State was in respect of "felled trees" and the area and denomination of the coupe were set out.
The trees agreed to be sold being in a deliverable state, by virtue of section 20 of the Sale of Goods Act, the property in the goods sold passed on the production of the "coupe boundary certificate".
It is true that because of the diverse covenants contained in the contract and the provisions of the Rules which formed part of the contract, certain restrictions were imposed upon the contractor.
Rule 8 authorised the forest authorities to stop removal of the foods sold if it was found that the contractor had removed goods of value exceeding the amount of instalments already paid.
Again the contractor was required to take the goods to the depots and to get the same checked and examined.
But on that ground it cannot be said that the contractor did not become the owner of the goods when the "coupe boundary certificate" was produced.
The " coupe boundary certificate" is not on the record, and we are unable to hold that any goods were removed or permitted to be removed without the production of the coupe boundary certificate.
That is not the case of the State and we will not be justified in so assuming.
The terms of rr. 29 & 33 also abundantly support the view that on the production of the "coupe boundary certificate" the contractor becomes the owner of the goods.
Under cl.
(2) of r. 29 when a contract is terminated for reasons mentioned in cl.
(1) all forest produce remaining within the contract area or at the depots specified under r. 13 becomes the absolute property of the Government.
it is implicit in the rule that till the eventuality contemplated by r. 29(1), property in the forest produce is in the contractor.
The terms of r. 33(2) which authorize the forest contractor to assign any forest produce also support that inference.
The right to assign the forest produce not removed from the contract area predicates title to the forest produce.
The argument of the State that the property in the goods had not passed to the forest contractor till they were removed, and on that account the statutory charge under section 83 of the Forest Act did not attach to the goods sold, has therefore no force.
As soon as the contract was entered into and the coupe boundary certificate was produced and we assume in this case that it was so produced, the property in the goods passed to Jagatram.
But for the contract price there was a first charge on such produce in favour of the State of Madhya Pradesh under section 83(1).
The Divisional Forest Officer had authority to stop removal of those goods until 272 the amount of instalments payable by the contractor was paid and even to sell the goods for recovery of the amount which had fallen due.
The forest authorities however allowed Jagatram to remove the goods sold before the instalments due on December 1, 1954 and thereafter were paid.
Kaluram by executing the surety bond had undertaken to discharge the liability arising out of any act, omission, negligence or default of the forest contractor.
The surety Kaluram contends that because the State lost or parted with the security he stood discharged.
By section 140 of the , where a guaranteed debt has become due, or default of the principal debtor to perform a guaranteed duty has taken place, the surety, upon payment or performance of all that he is liable for, is invested with all the rights which the creditor had against the principal debtor; and by section 141 it is provided : "A surety is entitled to the benefit of every security which the creditor has against the principal debtor at the time when the contract of suretyship is entered into, whether the surety knows of the existence of such security or not; and, if the creditor loses, or, without consent of the surety, parts with such security, the surety is discharged to the extent of the value of the security.
" The State had as already observed, a first charge over the goods: the State was also entitled to prevent the goods from being removed without payment of the amount of instalments due.
The expression "security" in section 141 is not used in any technical sense: it includes all rights which the creditor had against the property at the date of the contract.
The surety is entitled on payment of the debt or performance of all that he is liable for, to the benefit of the rights of the creditor against the principal debtor which arise out of the transaction which gives rise to the right or liability: he is therefore on payment of the amount due by the principal debtor entitled to be put in the same position in which the creditor stood in relation to the principal debtor.
If the creditor has lost or has parted with the security without the consent of the surety, the latter is, by the express provision contained in section 141, discharged to the extent of the value of the security lost or parted with.
The State had a charge over the goods sold as well as the right to remain in possession tilt payment of the instalments.
When the goods were removed by Jagatram that security was lost and to the extent of the value of the security lost the surety stood discharged.
In the present case the State has not produced the accounts furnished under r. 16 by the contractor relating to the quantity of goods removed by Jagatram.
We must in the circumstances hold that the entire quantity contracted to be sold to Jagatram had been removed, and the surety is, because the State has parted with the security 273 which it held, discharged from liability to pay the amount payable under the terms of the contract.
In Wulff and Billing vs Jay,(1) Hannen, J., stated the law thus: ". .
I take it to be established that the defendant became surety upon the faith of there being some real and substantial security pledged, as well as his own credit, to the plaintiff; and he was entitled, therefore, to the benefit of that real and substantial security in the event of his being called on to fulfill his duty as a surety, and to pay the debt for which he had so become surety.
He will, however, be discharged from his liability as surety if the creditors have put it out of their power to hand over to the surety the means of recouping himself by the security given by the principal.
That doctrine is very clearly expressed in the notes in Rees vs Barrington 2 White & Tudor 's L.C., 4th Edn.
at p. 1002 'As a surety, on payment of the debt, is entitled to all the securities of the creditor, whether he is aware of their existence or not, even though they were given after the contract of suretyship, if the creditor who has had, or ought to have had, them in his full po ssession or power, loses them or permits them to get into the possession of the debtor, or does not make them effectual by giving proper notice, the surety to the extent of such security will be discharged.
A surety, moreover, will be released if the creditor, by reason of what he has done '.
cannot, on payment by the surety, give him the securities in exactly the same condition as they formerly stood in his hands. ' " Subject to certain variations, which are not material for the matter under discussion, section 141 of the Contract Act incorporates the rule of English law relating to the discharge from liability of a surety when the creditor parts with or loses the security held by him.
The Forest Officers of the State of Madhya Pradesh parted with the goods before receiving payment of the amount due by the contractor Jagatram.
Thereby the charge in favour of the State was seriously impaired and the statutory power to sell the goods for non payment of the amount remaining due became, for all practical purposes, ineffective.
Again under the terms of the contract the Forest authorities had the right to prevent removal of goods sold until the price was paid: that right was also lost.
The right conferred by section 83 of the Forest Act and under the terms of the contract to prevent removal and right to sell goods for non payment of the price, coupled with the charge on the goods constituted the security of the State, and that security was lost because the Forest Officers permitted removal of the goods by the contractor.
(1) 274 It was urged however on behalf of the State that mere inaction on the part of the forest authorities does not amount to parting with the security.
But the terms of the statute do not apply only to cases in which by positive action on the part of the creditor the security is parted with.
Even if the security is lost by the creditor, the surety is discharged.
In any event the facts in the present case make it abundantly clear that it was on account of the conduct of the forest authorities that the security was lost,.
The goods sold were under the control of the Forest Officers, when they were in the coupe and even when they were in the depot of the contractor.
The goods could be removed on the production of a pass from the coupe, and even after the goods were removed, unless they were examined and checked they were not at the disposal of the contractor.
It is not pleaded by the State that the trees sold were not checked and examined at the depot of the contractor.
Knowing that the goods were removed without payment of the instalments, if the Forest authorities checked and examined the goods and took no action for recovery of the amount payable, and did not enforce the charge, it would be difficult to say that there was mere inaction on the part of the forest authorities.
We therefore agree with the High Court that the surety Kalu ram stood discharged from liability to pay the amount undertaken by him under the terms of the surety bond because the forest authorities of the State had parted with the security which they possessed for recovery of the amount due from the contractor.
The appeal fails and is dismissed with costs.
G.C. Appeal dismissed.

summary:
At an auction held by the Divisional Forest Officer Hoshangabad Division for sale of 'felled trees ', one J was declared the highest bidder.
The amount of the bid was payable in four installments.
According to the contract the Forest Contract Rules were binding on the contractor, and the contractor could be prevented from removing the forest produce in case he made default in payment of the instalments due.
One K had stood surety for J along with another surety.
J paid the first instalment due under the contract but without making the subsequent payments was allowed to remove the whole forest produce contracted to be gold from the contract area.
The State of Madhya Pradesh thereafter took proceedings to recover from K as arrears of land revenue the amount due from J. K commenced an auction for a declaration that he was not liable to pay the dues recoverable from J and for an injunction against the State.
He contended that since the Forest Department had allowed J to remove the forest produce the security was lost and he stood discharged.
The trial Court and the High Court both held in K 's favour.
The State of Madhya Pradesh appealed to this, Court by special leave.
HELD : (i) The expression "security" in section 141 of the Indian Contract Act is not used in any technical sense : it includes all rights which the creditor has against the property at the date of the contract.
The Surety is entitled on payment of the debt or performance of all that he is liable for to the benefit of the rights of the creditor against the principal debtor which arise out of the transaction which given rise to the right or liability: be is therefore on payment of the amount due by the principal debtor entitled to be put in the same position in which the creditor stood in relation to the principal debtor.
If the creditor has lost or parted with the security without the consent of the surety, the latter is by the express provision contained in section 141, discharged to the extent of the value of the security lost or parted with.
[272 E G] Wulff and Billing vs Jay, , referred to.
(ii) The Forest Officer parted with the forest produce before receiving payment of the amount due by the contractor ' Thereby the charge in favour of the State was seriously impaired and the statutory power to sell the produce for nonpayment of the amount remaining due became, for all practical purposes, ineffective.
Again, under the terms of the contract the Forest authorities had the right to prevent removal of the produce sold until the price was paid : that right was also lost.
The right conferred by section 83 of the Forest Act and under the terms of the contract to prevent removal and right to sell the produce for non payment of the price, coupled with charge on the produce constituted the security of the State and that security was lost because the Forest Officers permitted removal of the produce by the contractor.
[273 G H] Accordingly the surety stood discharged from liability to pay the amount undertaken by him under the terms of the surety bond.


judgement:
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 S.A. 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, C.J.
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 O.S. 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, i.e., 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.
CI/66 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 C.S. 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) A.I.R. 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 Nayudu(1) 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) A.I.R. 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) A.I.R. 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 s.(1) 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 s.(1) 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 92(1) of the Code of Civil Pro cedure, it is not hit also by sub s.(2) 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 P.C., that the last paragraph of s .
73 of the Act is meant to refer only to the classes of cases referred to in section 73(1) 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) A.I.R. 1943 Madras 466.
(2) A.I.R. 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 73(1) and other sections of the Act.
Section 93 of the Act enlarges the scope of section 73(4) 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 73(4) 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 Rao(1) 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 6(a) 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 Veerabhadrayya(1) 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 71(4) 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 74(2) 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, i.e., 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.
V.P.S. 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.