K.M. NATARAJAN, J. - (1.)THE unsuccessful first defendant before the courts below has preferred this Letters Patent Appeal challenging the judgment and decree passed in A.S. No. 1150 of 1979 rendered by a learned single Judge of this court.
(2.)THE brief facts which are necessary for the disposal of the appeal are as follows:?
THE respondents filed the suit for a declaration that the Kaikkan Pathy Narayanaswamy Trust is the private family trust of the respondents and others, namely, the appellant/first defendant and defendants 2 to 10 for removal of the appellant from management; for appointing new trustees and vesting trust properties in them; for rendition of accounts by the appellant from 28.8.1983 and for settling a scheme. THE case of the respondents-plaintiffs is that one Parameswaran Nadar constructed a temple and installed, Narayanasami therein and he was conducting daily poojas, monthly kattalais and yearly festivals. THE said Parameswaran Nadar acquired 11 items of properties for the said purposes. Respondents 1 and 2 are the sons of Parameswaran Nadar. Respondents 3 and 4 are his major grand-sons. During his life time, Parameswaran Nadar himself has constituted as the first trustee. For the management and administration of the temple and its properties, he also executed a registered Odampadi on 18.9.1952. As per the provisions of the said Odampadi Narayanaperumal Nadar, the eldest son of Parameswaran Nadar, was to assist his father during his life time and thereafter he was to enjoy the properties, realise the income therefrom and perform the poojas without default. THE other members of the family were entitled to get prasadam and other emoluments. As per the said Odampadi Narayanaperumal Nadar was empowered to appoint his successor. Even after the execution of the registered Odampadi, the father Parameswaran Nadar purchased item 12 and he died subsequently on 12.1.1129 M.E. (28.8.1933) (1954 AD). His eldest son Narayanaperumal Nadar as per the Odampadi, succeeded him as trustee and he died on 23.5.1967, without appointing a successor and without maintaining accounts of the income as well as expenditure. THEreafter, the appellant/first defendant who is the son of the said Narayanaperumal Nadar got into the management of the temple and its properties and had been conducting poojas. But, he did not maintain accounts of the income and expenditure in respect of the trust properties, and he suppressed the same. Hence, the suit is filed by the respondents claiming that they have got a right to see that the trust properties are properly protected and the performance of the trust is properly conducted.

The appellant, who is the first defendant, resisted the suit and in the written statement, it was inter alia contended that no trust was founded by Parameswaran Nadar. Though Parameswaran Nadar acquired 11 items of properties, it is not admitted that such acquisition was in favour of any trust. The appellant claimed that Parameswaran Nadar was the absolute owner of the Pathy and Narayanaswamy. Narayanaperumal was managing the affairs of the Pathy as absolute owner.. The said Narayanaperumal appointed the appellant as his successor, and he is the absolute owner of the Pathy. From the date of appointment by Narayanaperumal, he remained in possession as absolute owner of the Pathy from 29.5.1967. He would state that he is the absolute owner of the Pathy and its properties from the date of his appointment by Narayanaperumal and nobody has any right or control over him or the Pathy or the properties. Further, nobody has any right to ask for any accounts. He has further stated that his father never kept any account and hence there is no question of any suppression of accounts. The respondents have no right to ask for framing a scheme for the management of the Narayanaswamy Pathy. After the death of Narayanaperumal the appellant renewed the building at a cost of Rs. 3,000/and has also spent about Rs. 2500/for constructing retaining walls and has collected materials for renovation of the pathy for Rs. 1500/-. Hence, he prayed for dismissal of the suit.

The second defendant filed a written statement contending that the respondents/plainliffs first defendant is in possession as absolute owner of the Pathy and that Narayana Perumal Nadar appointed the first defendant as his successor. Hence, he also prayed for dismissal of the suit.

Defendants 3 to 10 filed a written statement supporting the case of the plaintiffs/respondents herein and submitted that for better and efficient management of the trust, a scheme is to be framed.

The learned Subordinate Judge on the basis of the oral and documentary evidence held that Parameswaran Nadar has founded the private family trust that he was not the sole owner of the Pathy or the temple, that Narayanaperumal Nadar was only a trustee as per the registered Odampadi dated 18.9.1952, and that the first defendant/appellant was appointed as successor by his father Narayanaperumal. The learned Sub Judge also found that the first defendant deserves to be removed since he refused to maintain accounts and that the first defendant should render account from the date when he assumed management on 23.5.1967 till a suitable scheme is framed and the new Trustees take charge of the properties, and this will be worked out in the final decree proceedings. The trial Judge further held that the first defendant should remain in possession as Receiver from 24.8.1976, the date of the judgment, till a suitable scheme is framed and the new trustees take charge of the trust properties. The first defendant was directed to render accounts twice in a year.

(3.)AS against the said decree, the first defendant/appellant preferred the first appeal before this court in A.S. No. 1150 of 1979 challenging the findings of the trial Judge. The learned single Judge of this Court on a careful consideration of the relevant materials, while accepting the contention of the respondents that the appellant was not validly appointed trustee, upheld the finding of the trial court that the appellant had rendered himself liable to be removed as he denied the trust and the trust character of the properties belonging to the trust. The learned single Judge also came to the conclusion that it is no longer safe in the interest of the trust estate and also the temple and the welfare of the beneficiaries to allow the management to continue in the hands of the appellant and consequently dismissed the appeal with costs holding that no interference with the judgment of the trial court is called for. Only in these circumstances, the Letters Patent Appeal has been filed.
Learned counsel for the appellant did not seriously dispute the concurrent findings of both the courts below. The learned counsel for the appellant mainly submitted that during the pendency of the proceedings, the Deputy Commissioner declared that the suit temple is a public one. As against the same, the appellant filed a suit, O.S. No. 78 of 1979 and the said suit was decreed on 31.3.1981 and as against the same, the department represented by the Deputy Commissioner filed A.S. No. 1115 of 1981 and the said appeal was allowed on the ground of want of notice under section 80 C.P.C. In view of the said finding, the original order passed by the Deputy Commissioner declaring the temple as a public one is restored. The learned counsel submitted that in view of the above decision that the suit trust is a public trust, the respondents/plaintiffs are not entitled to the reliefs prayed for in the suit and on that ground alone, the appeal is to be allowed. It is also contended by the learned counsel for the appellant contended that Parameswaran Nadar has two wives and all his family members, mules and females are not made parties. The details of the heirs of Parameswaran Nadar have been given in para 5 of the written statement. It was pointed out by the learned counsel for the appellant that the suit without impleading the other heirs of Parameswaran Nadar and the deity is not maintainable. On that ground also, the suit is liable to be dismissed.

On the other hand, the learned counsel for the respondents submitted that none of these erounds was raised before the appellate court as well as the trial court and that in para 12 of the judgment of the learned single Judge it is specifically observed that except the contentions referred to therein, no other point was urged on behalf of the appellant. As regards the suit said to have been filed against the decision of the Deputy Commissioner that it is a public temple, no records have been produced. Even otherwise, the respondents are not parties to the same and that they are not bound by those proceedings. Admittedly there is no deity in the temple, and only a vel is kept on a chair inside the Pathy as symbol of Narayanaswamy. Thus the prayer in the suit directing appellant to render an account of the income and expenditure, which he has not accounted so far, and for framing of a scheme would not in any way be affected by the alleged declaration that it is a public temple on the application filed by the appellant himself. The appellant cannot escape the liability to render an account of the income and expenditure in respect of the trust properties. The respondents never claimed any benefit for themselves. They have filed the suit only for the trust. The suit for rendition of accounts by a beneficiary is not barred under section 108 of the Hindu Religious and Charitable Endowments Act. The question of misjoinder and non-joinder of parties does not arise at this stage. The mere, plea in the written statement may not be sufficient without adducing independant evidence. No evidence was adduced and no issue was raised and hence the appellant is deemed to have waived that point. Admittedly the final decree was passed on 2.7.1982 and the said finding has not been challenged. As per the said finding, the appellant has to deposit Rs. 2,25,000/and odd. In view of the fact that the said finding has become final, it is not open to the appellant to raise all these contentions at this stage. A Bench of this Court has also directed the appellant to deposit Rs. 2,25,000/within three months. In spite of the fact that the time was extended for deposit of the said amount, so far the amount has not been deposited and the appellant is not entitled to ask for any indulgence from this court. The appellant has no right to appropriate the income for his personal benefit. Any worshipper can file a suit even in the case of a public temple. Lastly it was submitted by the learned counsel for the respondents that no ground whatsoever was made out for interference with the concurrent finding and the appeal is liable to be dismissed.