1. This is a plaintiff's appeal arising out of a suit under Section 92, Civil P.C., claiming many reliefs including the removal of the defendant trustee, the rendering of accounts of income and expenditure from 1902 when he took over charge, the appointment of new trustees and the vesting of the trust property in them, as well as other directions said to be necessary. It appears that the defendant took over charge as trustee of this endowed property in 1902 and was managing it without any objection on the part of the other members of his family. In 1915-1916 plaintiff 1, his younger brother, moved the Legal Remembrancer for sanction to file a suit against him. Some inquiry through the Collector was presumably made and the Legal Remembrancer declined to grant the sanction. No suit, therefore, could be instituted; but the defendant certainly became aware that his management was being questioned by his younger brother.
2. After the coming into force of Act 14, 1920 the present plaintiff filed an application in the Court of the District Judge on 7th March 1927 under Section 5 of that Act, praying that the trustee be ordered to file the accounts of the income of the trust property, and to refrain from cutting any trees; and that in case he was found incapable of managing the trust property, he should be removed from his office and the petitioner be appointed trustee in his place. The application was of course objected to by the defendant Umrao Singh. In the first instance the learned Judge issued a notice to the defendant on 30th March 1927, directing him to file account books by 2nd April. He also issued an injunction prohibiting him from cutting down any trees or removing any timber. The defendant filed certain abstract statements of income and expenditure but not regular accounts. On 21st November 1927 the petitioner applied to the Judge stating that the trustee had not filed any original accounts together with the receipt books and other papers, and that he had filed no accounts whatsoever for the year 1926-1927. On that application the learned Judge passed the following order:
I have seen the accounts. They are worthless. Proper accounts including receipts and bahikhatas must be filed within two days.
3. On 23rd November 1927, the trustee filed an application stating that he had filed the account which was with him in compliance with the order of the Court and that he had got 'no better account' and was therefore unable to comply with the order. The petitioner protested against this statement and alleged in his application of the same date that the trustee had not filed the original accounts and receipts, and that what he had filed were fabricated and unreliable. On this the learned Judge made this order:
Yes, he must have the original. These are only abstracts,
4. He then proceeded to appoint a receiver temporarily and later on directed the petitioner to file a regular suit within two months. This was done. The propriety of this order is not in question before us. In the plaint filed in this case the plaintiff not only alleged disobedience to the order of the District Judge to file the accounts, but also other matters showing mismanagement, misfeasance, breach of trust and misconduct. These were all denied in the written statement, in which a further plea was taken that the suit without the previous sanction of the Legal Remembrancer was not at all maintainable.
5. The learned District Judge seems to be of opinion that he has no authority to remove the trustee until the plaintiff has applied for the permission of the Advocate-General to institute a suit under Section 92, Civil P.C., and that in any case the trustee cannot be legally removed in the suit. He is further of opinion that the plaintiff can ask for accounts for only three years. He has also expressed the opinion that the management had not been unsatisfactory, barring the fact that the defendant was not very careful in not keeping proper accounts for all these years, so that it is very difficult to know exactly how much was obtained from the estate and how much was spent on the worship of the temple and other necessary expenses. He has not removed the defendant from the trusteeship, but has ordered him to file accounts of 1334-F only and has also given him certain directions set forth in his finding on issue 4 for his future guidance.
6. The plaintiffs have pleaded and urged that a case has been made out for the removal of the defendant. In our opinion the learned Judge is wholly in error in thinking that he had no authority to remove the defendant from the trusteeship and that the defendant could not legally be removed in this suit. The facts which we have stated above leave no doubt in our minds that there was a disobedience of the order of the District Judge directing the defendant to file proper accounts in the former proceedings. Even in the proceeding the learned Judge was satisfied that the originals must have existed and had been withheld. In the present suit Har Prasad in the witness box offered the explanation that accounts used to be kept by his karinda, but they were taken away by him shortly before he filed the abstracts in the Court of the District Judge. He admits that he made no report to the police about this theft. It is also clear from his application dated 23rd November 1927 that he did not suggest at that time that these accounts had existed and had been stolen away from his possession. The story now told is utterly incredible and cannot be accepted, and the only conclusion at which we can arrive is that proper original account books must have existed and were not produced before the District Judge. There was therefore a clear disobedience of his order.
7. The application before the learned Judge was one for the filing of accounts and the order was made by him under Section 5, Sub-section (5), Act 14 of 1920. Section 6 of that Act provides that if a trustee without reasonable excuse fails to comply with an order made under Sub-section (5), Section 5, he shall be deemed to have committed a breach of trust affording ground for a suit under the provisions of Section 92, Civil P.C.; and any such suit may, so far as it is based on such failure, be instituted without the previous sanction of the Advocate-General. It is quite clear from this section that when the order of the District Judge had not been complied with, there was a breach of the trust, which could be made the basis of a suit under Section 92. Once such a suit was filed the District Judge had jurisdiction to grant any or all the reliefs mentioned in Section 92, Sub-section (1) of the Code. We fail to see why the learned District Judge thinks that he had no jurisdiction to remove the trustee. It is also clear to us that the learned Judge is in error in thinking that he could not direct accounts and inquiries for a period of more than three years. He seems to be under the impression that although a regular suit under Section 92 has been instituted, the provisions of Act 14 of 1920 still govern the rights of the parties, and that, as provided in Section 3 of that Act, accounts for more than three years cannot be ordered. He is further in error in thinking that these three years would run from 1334-F. only.
8. We are of opinion that the Court has jurisdiction to order a trustee to render accounts for the whole period of his trusteeship, if such accounts have not been rendered before. At one time we felt inclined to order that the defendant should render accounts from 1917 onwards, when his younger brother challenged his management and applied to the Legal Remembrancer for sanction. But as at that time the authorities were apparently satisfied that no breach of trust was committed, we think it would be unfair to the defendant to direct him to render accounts for this long period. At the same time there seems to be no reason why he should not have been ordered to render accounts for the three years previous to the application of 7th March 1927, which accounts he had been ordered to file and which he bad failed to file.
9. As regards the other questions of misconduct, mismanagement or negligence, we think that such an inquiry is wholly outside the scope of a suit which is instituted an the basis of Section 6 of the Act. The last part of the section quoted above shows clearly that it is only so far as the suit is based on such failure that the previous consent of the Advocate-General is dispensed with. We cannot therefore allow a wholesale inquiry into the general misconduct of the defendant or his negligence. All that should be assumed in this case is that he has committed a breach of trust inasmuch as he failed to comply with the order of the District Judge to file accounts. The question before us, therefore, simply is whether such omission on his part is sufficient to justify an order for his removal. After some hesitation we have come to the conclusion that the order of the learned District Judge in this respect should not be interfered with. We accordingly allow this appeal in part, and modifying the preliminary decree of the District Judge extend the period for which the accounts have to be rendered to the three years prior to 7th March 1934. We direct the parties to bear their own costs of this appeal. The time for filing the accounts is extended to one month from the arrival of the record in the Court below.