1. The suit out of which this appeal arises was institute.! by the respondent Sami Royar as a trustee entitled to act jointly with the appellant Kolandavelu Chetty in respect of charities and trusts created by the will of Gr. Appakutti Aiyar. The main question for decision is whether under the appointment relied on by Sami Royar, he was validly appointed as a trustee.
2. With reference to this question it was urged on his behalf by Sir Bhashyam Aiyangar, that his appointment was really made by the daughters and daughter's sons of Appakutty Aiyar, who were the heirs of the latter at the time. This contention is one suggested for the first time in this Court and is altogether unsupported by the record. Neither in this case, nor in the connected cases tried at the same time and to which Sami Royar is a party was any averment made that the appointment was made by these heirs. The compromise in O.S. No. 1 of 1897 (District Court Tanjore) does not amount to an appointment of Sami Royar by the other plaintiffs in that suit. The plaint as well as the compromise proceeded on the assumption of an anterior appointment by Kolandavelu Chetty, and the matter is put beyond all doubt by the frame of the 6th issue in O.S. No. 12 of 1900. We cannot, therefore, accept the respondent's contention and allow him to set up this new case. It was next urged that the question of the validity of the appointment is res judicata by the decision in O.S. No. 181 of 1898 (District, Munsif's Court Kumbakonam) brought by the respondent against one Kannu Pillai and the present appellant.
3. That suit was for the purpose of obtaining a declaration that the decree in S. C. No. 242 of 1896 (Subordinate Judge's Court, Kumbakonam) by Kannu Pillai was not capable of being executed by attachment of any of the property of Appakutti Aiyar's estate referred to in his will. KolandaveluChetty was made a defendant as the other trustee Sami Royar, obtained the declaration asked for. Mr. Krishnasami Aiyar on behalf of Kolandavelu Chetty argued that the decree in favour of Sami Royar was in favour of the estate which Kolandavelu Chetty represented, that the latter was therefore not entitled to appeal against such decree and as against him ho plea of res judicata could be founded on the adjudication referred to.
4. It may be that this suggestion is not without force, but in point of fact Kolandavelu did prefer an appeal which was heard and disposed of or the merits. We prefer, therefore, not to dispose of the plea of res judicata with reference to this argument. Mr. Krishnasami Aiyar's next objection was that though it was necessary for the determination of Sami Royar's suit to decide whether Sami Royar was validly appointed by Kolandavelu, yet that finding was on a question of law and as the object matter of the present suit is entirely different from that of O.S. No. 181 of 1898, that finding is not conclusive in the present suit. That the object matter is different, there is no doubt, for the claim now is to restrain Kolandavelu from acting in the future management of the estate and the trusts otherwise than jointly with Sami Royar, while the object matter in the previous suit was whether the debt due to Kannu Pillai under the Small Cause decree was liable to be realized out of the estate.
5. It is equally clear that the adjudication in O.S. No. 181 was upon a question of law viz., whether it was competent to Kolandavelu to appoint Sami Royar as his co-trustee. In our view it is quite decided that an adjudication upon a point of law though binding upon the parties in any future suit quoad the same object matter is not conclusive even between the same parties when the subject matter of the second suit is different. This is the view taken in Parthasaradi v. Chinnakrishna I.L.R M. 304 Venku v. Mahalinga I.L.R. M. 393 Chamanlal v. Bapubhai I.L.R. B. 669 and Vishnu v. Ramling I.L.R. B. 30 and as we consider that view to be sound, we do not feel called upon to decide whether the view of the Calcutta High Court in the Government of Bengal v. Tenaya Ali I.L.R. C. 318 is in reality different. We are therefore of opinion that the contention of the respondent as to res judicata is not sustainable.
6. The question for determination then, is whether the appointment of Sami Royar by Kolandavelu is valid. The facts are shortly as follows:
Under the will of Appakutti Iyer, two trustees were appointed viz., G. Nataraja Chetty and another. The latter died many years ago. On the death of Nataraja Chetty there was litigation as to who was entitled to succeed him as trustee and it was held by this Court on appeal that his son and heir, Kolandavelu, was so entitled. No one claiming as the heir of the other predeceased trustee came forward and for a considerable period Kolandavelu was the sole trustee. In the latter part of 1895, Kolandavelu appointed Sami Royar as his co-trustee in the place of the second trustee named in the will. The will itself conferred no power on either of the trustee or on any one else to fill up vacancies in the office of trustee. Section 73 of the Indian Trust Act does not extend to trusts such as that created by Appakutti and it is settled law that, in the absence of a power under the instrument creating the trust or by virtue of some statutory provision a trustee as such has no power to appoint any person as trustee either in his own place or to act jointly along with him It follows therefore that the appointment relied on by Sami Royar under Exhibit I conferred on him no right to act as trustee and the present suit brought by him as trustee is unsustainable.
7. We accordingly reverse the decree of the Subordinate Court and dismiss the suit with costs throughout.