1. This is an appeal against the preliminary decree of the Subordinate Judge of Kumbakonam declaring that the defendant is not the lawful trustee of the plaint properties and that it is necessary to frame a scheme for the management of the plaint charities and to appoint new trustees. The defendant appeals against the decree.
2. The facts of the case are that one Appakutti Aiyar by his will dated 28th August 1844 and codicil dated 3rd September 1844 devised the greater portion of his properties for the performance of certain charities and appointed his maternal uncle Chinnappier and one Gopu Nataraja Chetti as trustees for carrying on the charities and further directed that one of his heirs should take part in the management of the trust properties. Appa Kutti Aiyar died in 1844. At the time of his death he had one daughter Dharmi Ammal. Another daughter Rajammal was born subsequent to his death. Chinnappier evidently declined to act as trustee as he does not appear to have taken part in the management of the charities. Gopu Nataraja Chetti carried out the terms of the will and conducted the charities till his death in 1873. After his death, his son Kolandaivelu Chetty conducted the charities till his death in 1912. The defendant claiming to be the adopted son of Kolandaivelu took possession of the properties on the death of Kolandaivelu and he claims to be the hereditary trustee of the charities. 1st plaintiff is the daughter of the said Appakutti Aiyar and 2nd plaintiff is her son. They have brought this suit after obtaining the sanction of the Advocate-General under Section 92 of the Civil Procedure Code. The plaintiffs after setting out the history of the trust allege that the defendant has been guilty of various acts of misfeasance and malfeasance and pray that, in the interests of the trust, a proper scheme be framed, that the defendant be removed and a proper trustee be appointed and also that the properties unlawfully alienated be recovered for the benefit of the trust.
3. The defendant's contention is that he is the hereditary trustee of the plaint trust, that the plaintiffs are barred from bringing this suit by reason of the decree in O.S. No. 9 of 1876 on the file of the Court of Small Causes at Kumbakonam, that the plaintiff's suit is barred by limitation, that he has not been guilty of any acts of waste or malfeasance and that the plaintiffs have no right to bring the suit.
4. The learned Subordinate Judge held that the defendant was not a hereditary trustee, that the suit was not barred by limitation or by res judicata and that a proper scheme was necessary in the circumstances of the case. The Subordinate Judge held that the terms of Appakutti Aiyar's will were against the contention of the defendant that he was a hereditary trustee. By a codicil dated 3rd September 1844 Appakutti Aiyar made several bequests to his female relations and his wife and appointed Chinnappier of Tiruvaroor and Gopu Nataraja Chetti as trustees. In the codicil there is no mention of the trusteeship being hereditary in Nataiajan Chetty's family.
5. It is contended before us that the learned Subordinate Judge erred in relying upon the recitals in the judgment of Mr. Kindersley in O.S. No. 36 of 1871 and upon the recitals in the judgment of Mr. Cross in O.S. No. 9 of 1876 for the terms of the will. No doubt according to the recent Full Bench decision in Seethapati Rao Dora v. Venkanna Dora 42 M.L.J. 324 the recitals in a judgment cannot be relied upon for the purpose of proving the contents of a document. What is extracted in O.S. No. 36 of 1871 is from a copy of a codicil admitted to be correct by both the parties to that suit, for the purpose, as the learned Civil Judge says, of being preserved for future reference. From the B diary and from the way in which his case was presented in the Lower Court, it may be safely assumed, that the appellant consented to the document being used as evidence for the purpose of proving the contents of the will. The appellant having allowed the will to be proved in a particular manner cannot now object in appeal to the way in which it has been done. If the defendant had objected to the proof of the contents of the will by Exs. A and B the plaintiffs would have had a chance of adducing other evidence, if possible, for proof of the will. It is very likely that the defendant himself wanted to rely upon the recitals in Exs. A and B in order to show that Gopu Nataraja Chetty was appointed trustee under the will and that he continued to be trustee till his death by virtue of the provisions of the will, and that, Kolandaivelu succeeded in the suit of 1876 by reason of the tenor of the will which Mr. Cross interpreted to mean that the charity to which the testator's whole estate went should not at any time be conducted by members of the testator's own family. I have therefore no hesitation in holding that the defendant consented to the documents being received in evidence without further proof. It has been held in Jainab Bibi Saheba v. Hyderally Sahib 38 M.L.J. 532 that 'the Indian statutes and the English treatises both confine themselves to stating the well-established rules of evidence, and do not deal with the question how far the strict requirements of the established rules may be departed from by consent in cases such as this. Far from the practice being opposed to public policy, evidence not taken before the Judge actually deciding the case has been made admissible in India by statute, as pointed out by Sundara Aiyar, J. in Sri Rajah Prakasarayamm Gam v. Venkala Rao 25 M.L.J. 360. The learned Judges quote with approval the observations of Sir Lawrence Jenkins, C.J. in Ramaya v. Devappa I.L.R. (1905) 30 Bom. 109 . 'Parties, if so minded, may ordinarily agree that evidence shall be taken in a particular way, and it is a common experience that parties do agree that evidence in one suit shall be treated as evidence in another. That is not a matter which can be said to affect the jurisdiction of the Court. It is merely that parties allow certain materials to be used as evidence which apart from their consent cannot be so used'. The contention of the appellant therefore that the documents, Exs. A and B. cannot be used as evidence fails.
6. The next contention is that the appellant is a hereditary trustee by reason of the decision in O.S. No. 9 of 1876, and the plaintiffs are barred by res judicata from contending that appellant is not a hereditary trustee. In the first place, the judgment in O.S. No. 9 of 1876 does neither declare Kolandaivelu to be hereditary trustee nor confer on him the right to be hereditary trustee. All that was decided in that suit was that Kolandaivelu as heir of the trustee who had managed the estate for so many years must succeed to the trusteeship. Even if it be granted that the judgment decided the question of hereditary right to the trusteeship, it cannot operate as res judicata in the present suit, as the plaintiffs sue not in their individual capacity but as representing all those who are directly interested in the maintenance of the charities. The suit under Section 92 of the Civil Procedure Code is a representative suit and the interest of the plaintiffs to enable them to bring such a suit is that interest which will enable them to be benefited if so minded, by the proper maintenance of the charities. The plaintiffs reside not far away from where the chatrams are situated and they are, as members of the Hindu Society, interested in the maintenance of the choultry and other charities. In the said suit O.S. No. 9 of 1876, no doubt the first plaintiff and her sister were defendants I; but they were defendants in their own individual capacity and asserted their individual rights. Here they sue as members of the public with the sanction of the Advocate-General and therefore the character of the present suit is entirely different from the character of the previous suit, and the nature of the reliefs claimed in the present is not the same as that of the reliefs claimed in the previous one though one of two reliefs may be common to both. Further the Court of Small Causes at Kumbakonam which was entitled to try oViginal suits had no jurisdiction to try a suit under Section 92 Civil Procedure Code. The provisions of Section 11 are clear that the Court in which the previous suit was tried should have been competent to try the. subsequent suit. It was only recently that certain Subordinate Judge's Courts were empowered to try suits brought under Section 92 of the Civil Procedure Code. In the Civil Procedure Code (Act VIII of 1859), there was no provision corresponding to the provisions of Section 539 of the Code of 1877 or of the Code of 1882. Though a suit might have been brought under Section 30 of the old Code by a few persons on behalf of a whole class or a large number of persons, yet the jurisdiction conferred by Section 92 of the present Code or by Section 539 of the old Code is of a special character, and it cannot be contended for a moment that the Court of Small Causes at Kumbakonam having original jurisdiction was competent to try the issue, and therefore the plaintiff's suit is not barred by the principle of res judicata.
7. It is next urged for the appellant that the plaintiff's suit is barred by limitation. It is unnecessary to consider in detail the various points raised with regard to this contention. It is urged that Gopu Nataraja Chetti died in 1873 and Kolandaivelu Chetty became trustee after his father's death and continued to be so till 1912. The appellant complains that the learned Subordinate Judge did not allow an additional written statement to be put in and an issue to be raised with regard to this point in particular. The Subordinate Judge might well have allowed an additional written statement to be put in and an additional issue raised.
8. In fact he did discuss the question so raised in paragraphs 30 and 31 of his judgment. But the omission to frame an issue on the point does not in any way enable the defendant to contend that this suit is barred by limitation, for, the plaintiffs bring this suit not to assert their own individual right but on behalf of the general public who are interested in the institution, for the settlement of a proper scheme of management of the charities and for other reliefs. There is no limitation against such a suit. Whether the defendant has acquired title by prescription, or not it is unnecessary to decide in this case. From the circumstances set out in evidence and from the past history of the trust, it is abundantly clear that a proper scheme should be settled for its management. Ever since the death of Appakutti Aiyar there has been litigation about the trust. The matter went up to the Privy Council, Vide Nagalakshmi Ammal v. Gopu Nataraja Chelti (1856) 6 M.I.A. 309. There was litigation in 1871 and again in 1876 and these disputes between the heirs of Appakutti Aiyar and the trustee for the time being could not but affect the trust adversely. Taking into consideration all the circumstances, I am of opinion that this is a lit case in which a scheme should be framed for the proper management of the plaint trusts by new trustees, The appeal against the preliminary decree is therefore dismissed with costs.
9. I agree.