Indian Kanoon - Search engine for Indian Law

10. This question is next whether; this authority has been deprived of effect by the enactment in 1908 of Sub-section (2). The contrary has been held in the"two suits by trustees against trespassers, claiming the trusteeship, Ayatunnessa Bibi v. Kulper Khalifa (1914) I.L.R. 41 Cal. 743 and Muhammad Abdul Majid Khan v. Ahmad Said Khan (1913) I.L.R. 35 All 459 the distinction drawn by Woodroffe, J. being expressly relied on in the latter. It was also approved lately in this court, the parties, all being trustees, by Wallis, C.J. and myself in A.S. No. 368 of 1919 (unreported), that decision having been followed by Napier and Odgers, J. in Venku Chettiar v. Doraisami Chettiar (1921) M.W.N. 439 and a similar view would appear to have been taken, although without specific reference to Budree Das v. Chooni Lal Johurry I.L.R. 33 Cal. 789, in All Hussain v. Mahomed Husain (1919) 52 I.C. 628. And these authorities moreover commend themselves, when regard is had, as the ordinary rules of construction require, to the amended provision as a whole and the effect of the amendment. The argument of 1st defendant involves that the intention in enacting Sub-section (2) was to make clear, not only the mandatory character of Section 539, but also, what (so far as we have been shown) had not been the subject of any marked conflict of decisions, the class of suits to which that section applied and contrary to the ordinary interpretation of the expression "persons interested" and the clearly representative character of the procedure, to bring under it trustees as well as beneficiaries. This cannot be accepted If the intention had been thus to abrogate the distinction between suits by these two classes, it is not to be supposed that it would have been effected by mere implication without the adoption of different wording in Sub-section (I) and clearer wording of the new Sub-section (2). The reference to reliefs in the latter cannot without undue violence be read as to reliefs in all suits relating to public trusts, by whomsoever instituted and whether they are or are not suits of the kind dealt #with in the main provision, Sub-section (1), "suits by persons interested" and of similar nature to the others provided for under the same C. heading in Section 91. It may be that as observed by Wallis, C.J. and myself in the unreported case above referred to and by the Bombay High Court in Nilkanth v. Ramakrishna I.L.R. 23 B. 876, the reliefs claimed by a trustee will in some instances, be indistinguishable from those, which can be claimed on behalf of the public. But it does not follow that the Legislature intended, what is not distinctly expressed, that, they should be claimed only subject to safeguards for the representative and responsible character of the proceedings, which would not be appropriate or necessary, when a trustee is the plaintiff.

16. Strong reliance was placed by the appellant's Vakil on Saminathan Pillai v. Sunderasa Pillai 29 M.L.T. 267 where it was held that a suit by a trustee of a temple against the trustee of a kattalai established in connection with the temple for an account was held to fall within the provisions of Section 92. In that case certain properties were left to the defendant under "his father's will upon thrust to apply the income for the Ineivethiam in the temple of which the plaintiff was the trustee. Wallis C. J. observed that "where there are several trustees of different properties vested in them respectively for the performance or various services in the temple I do not think the main or general trustee has any right to sue otherwise than under Section 92 of the Civil Procedure Code for the failure of one of the trustees to perform his trust. If he had such a separate cause of action, I should not be disposed to construe Section 92 of the Civil Procedure Code as taking it away from him but I am not satisfied that he has any such right of action under the general law." Krishnan J was of opinion that the suit as framed did not fall within Section 92. Owing to this difference of opinion the case came on before a bench of three Judges of which I was a member. I took the view that there was no contract between the plaintiff and defendant. The statement of the law by the Chief Justice as to independent trusts with different trustees though for the benefit of the same beneficiary was in my opinion correct, and the only question was whether the suit was governed by Section 92. This case is therefore clearly distinguishable from the present one which is one between co-trustees. Raliance was placed by the appellant's vakil on the decision of Parson J in Tricumdas Mulji v. Khimji Vullabh las I.L.R. 16 Bom. 626 where the learned Judge was of opinion that the provisions of Section 539 of the Civil Procedure Code of 1882 were mandatory and that a suit by two trustees against two other trustees for their removal aftd for an account was governed by the section the claim for an account falling within the words "decree granting such further or other relief as the nature of the case may require". This sase so far as 1 am aware has not been allowed and a contrary view was taken in Miya Vali Ulla v. Syed Bava Santi Miya I.L.R. 22 Bom. 496, where Farran C.J. and Hoskin J. held that a suit by a co-trustee for an account and recovery of his share did not fall within section 539 as the plaintiff's complaint merely was "that he claiming to be a co-trustee, has been excluded from a share in the management and in the profits of such management". In Nilakanth v. Ramakrishna (1921) 23 Bom. L.R. 1876 it was held that a suit for a declaration that the defendants 'were not properly appointed trustees of a temple and, for an injunction did not fall under Section 92 Civil Procedure Code. The learned judges dissented from Subramania v. Krishnaswami Somayajiar I.L.R. 33 Cal. 789. Macleod C.J. observed "I do not think that merely because the suit concerns the question of the validity of the appointement of defendants 1 to 4 as trustees of the temple and because it might on that account be considered that the suit is somewhat akin to suits which came within the provisions of Section 92 that, therefore, we are to hold that the suit in the language of English lawyers is a suit that comes within the equity of thes tatute."

17. Co-trustees are co-owners of trust properties and ' are in law entitled to be in joint possession of all trust properties whether it be in the form of immoveables, moveables or cash. It would ordinarily render a trustee presonally liable if he allowed the cash or movables to be in the exclusive possession and management of a co-trustee and there was misappropriaation. He is in law entitled to be in joint posses of the funds even when the other trustee is carrying out the trust properly. Where moneys are in a co-trustee's hands an account would be necessary to ascertain his liability and the claim would in a sense be a suit for an account of trust moneys. I find it difficult to see why if a suit by a trustee against his co-trustees or strangers for joint or exclusives possession of immoveable or moveable properties does not require sanction of the Advocate-General of the joinder of another person the mere fact that money is claimed to ascertain which an account will have to be taken "should fall under Section 92, I think the words " directing accounts and enquiries " in Clause 1(d) of Section 92 should be confined to suits by he Advocate General or by two or more persons with his consent against all the trustees for an account of their management and not to one or more trustees against the others as each trustee has a right to call upon the other to account to him for, trust funds he has received even though the other trustee commtts no breach of trust.