William Ayling, Officiating C.J.
1. I have had the advantage of persuing the judgment which my learned brother Oldfield is about to pronounce. I agree with the views expressed therein and with the negative answer proposed by him to be given to the question referred to us, and I should not feel called upon to add anything, but for the judgment in Swaminatha Pillai v. Sundaresa Pillai 29 M.L.T. 267 to which I was a party, which has been relied on by the learned vakil for appellant as supporting his contention.
2. The case is, of course, distinguishable from the one with which we are concerned. This is a case between co-trustees that was a case in which a subordinate trustee was sued by a general trustee, who, as representing the general trust, was really a beneficiary under the subordinate 'trust, and was seeking, as such, to enforce fulfilment of the latter.
3. It was from this joint of view and in reference to a suit of that character that the last paragraph of the judgment in that case was written: and was so worded as to suggest a more general application than I think we had in our minds. The argument addressed to us (and rejected) was apparently that every suit by a trustee no matter of what nature or against whom directed - was exempted from the provisions of Section 92. This was also, I think, the proposition placed before the Bench in Subramania Pillai v. Krishnaswami Somayajiar I.L.R. 42 M. 668 and dealt with by Abdur Rahim J. in the last pargraph of his judgment.
4. The correctness of our decision on the facts of the case then before us is unnecessary to discuss. Nellaiyappa Pillai v. Thangama Nachiar I.L.R. 21 Mad. 403 was an authority the other way: but one which did not bind us sitting as a Bench of three Judges in a Letters Patent appeal. But I feel Bound to say that on reconsideration and in the light of the argument now addressed to us, I do not think that the applicability of that judgment was affected by reason of the introduction of Clause (2) of Section 92. I agree with my brother Oldfield's view of the intention and effect of the inclusion of that clause: and I may go so far as to say that if a case similar to Swaminatha. Pillai v. Sundaresa Pillai (1919) 29 M.L.J. 267 came before me again I should like to hear the question of the applicability of Section 92 re-argued, and should be prepared to reconsider my views.
5. I would answer the question referred to us in the negative.
6. The question for decision is in effect whether the plaintiff, suing as a trustee, is precluded in the absence of the sanction referred to in Section 92 of the Civil Procedure Code from obtaining a decree for an account against his co-trustees, the defendants, in this suit. We therefore are not concerned with his right to the other relief he has asked for or in particular to the framing of a scheme.
7. It is argued on behalf of 1st defendant that such a sanction is essential, because, an account being specified in Section 92(1)(d) as one of the reliefs, which can be claimed in a suit under the section, with reference to Sub-section (2) no further reason need be required for holding that ah account can be claimed only in a suit instituted in conformity with Sub-section (1); and no doubt a literal reading of the reference in the former to 'a suit claiming any of the reliefs' specified in the latter at first sight supports this conclusion. But neither it nor the authorities relied on by 1st defendant take account of the considerations, which have been urged before us and which in my opinion must prevail: that the addition of Sub-section (2) in 1908 was intended, not to alter, but to make explicit the law as stated in Sub-section (1) and Section 539 of the previous Code, and that the law so stated did not affect the right of a trustee, as opposed to beneficiaries, to sue a co-trustee in discharge of his duty to his trust.
8. Those authorities can be dealt with shortly.
9. Second Appeal No. 1935 of 1914 (unreported) was decided on a mere reference to Sub-section (2) without discussion of its scope. Swaminatha Piliai v. Sundaresa Pillai 29 M.L.T. 267 was a suit a by a trustee and the Full Bench held, following the case next to be referred to, that the addtion of Sub-section (2) rendered the statement of the law in Nellaiyappa Pillai v. Thangama Nachiar I.L.R. 21 Mad. 406 incorrect. Whether or no that was right, it is immaterial for the present purpose, because those decisions were not between co-trustees, but between the trustee of a principal institution and the trustee of its subsidiary trust and the former may have been regarded as suing on behalf of his institution and those interested in it. Subramania Pillai v. Krishnaswami Somayajiar I.L.R. 42 Mad. 668 and Venkatasubbamma v. Venkatarangam Chetty 31 M.L.J. 280 no doubt are based on the literal application of Sub-section (2), for which 1st defendant contends. But, if the former can be regarded as really a suit against trustees for their removal (and I share the doubt expressed in Nilkanth v. Ramkrishna I.L.R. 23 Bom. 876 whether it can be) there is nothing in it regarding the question now before us except a bare* reference to the terms of the section and no consideration of the character of the plaintiffs as trustees, and not beneficiaries. Venkatasubbamma v. Venkatarangam Chetty 31 M.L.J. 280 is more important, because the judgment under appeal had negatived the necessity for a sanction on the ground now relied on by Plaintiff. But one learned Judge said nothing on the point and the other, after referring to it, confined his attention, as defendants contend that we should do, to the bare description of the relief claimed and its identity with one of those enumerated in Sub-section (1) without considering whether the section as a wole applies only to suits by beneficiaries or also to those brought by trustees. It is true that after doing so he referred to the inconvenience involved in compliance with the provisions of Section 92 by a trustee, justifying it as not insuperable and as entailed by the general policy of the Legislature. But the necessity for such compliance might, if the Advocate General would not move an a trustee's relation or would not consent to his suing, preclude his doing so altogether and it would involve in any case the anomaly of his joining as co-plaintiff some second person p6ssessing a more general interest than his own. With all deference a construction which avoids those difficulties, is, if otherwise legitimate, to be preferred; and the policy of the, Legislature on the point is not clear enough to influence the decision in the direction proposed. Neither of the learned Judges in Venkatasubbamma v. Venkatarangam Chetti (1916) 31 M.L.J. 230 referred to the state of the law before 1908 or the extent to which it was then altered by the addition of Sub-section (2). On the first point 1st defendant relies on Tricumdass Mulji v. Khimji Vullabhdas I.L.R. 16 Bom. 626 in which sanction under Section 539 of the Code then in force was held essential for a suit between co-trustees. But the judgment lays no stress on the plaintiffs possession of that character; and the fact that it was founded on Subbayya v. Krishna I.L.R. 14 Mad. 186 in which the plaintiffs were trustees, is not material, since in that case they did not rely on the fact or on any distinction between their rights and those of persons generally interested. That distinction was however relied on and considred in Budree Das Muhin v. Chooni Lal Johurry I.L.R. 16 Bom. 626 and I would respectfully follow the elaborate judgment of Woodroffe, J. therein, as it is, except on one point, a complete statement of the law on the question before us. He held no doubt that Section 539 was not mandatory; but that is now immaterial, as the enactment of Sub-section (2) has made it clear that Sub-section (1) is so within its scope. Dealing however with its scope, he also held on full consideration of all the authorities, (and it has not been shown that any direct dissent from his, conclusions has since been expressed) that the suit contemplated in it is representative, two persons being enabled by it to sue on behalf of the public and sanction being required as a precaution, against Wasteful litigation; he distinguished between the right of the public 'to see that their alleged appointees have the management of the trust' (that being the point before him) and that of the plaintiffs 'considered not as members of the public, but as trustees suing to enforce their own personal rights of management' ; and he made use of this distinction to hold that no question whether the section was mandatory really arose, because the suit before him, being by trustees, was not of the; description referred to in it,
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 I.L.R. (1914) Cal. 743 and Muhammad Abdul Majid Khan v. Ahmad Said Khan I.L.R. (1913) 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.
11. For the foregoing reasons I would answer the question referred in the negative.
Kumaraswami Sastri, J.
12. I am of Opinion that the question referred to us should be answered in the negative. The suit is by certain hereditary trustees against their hereditary co-trustees claiming various reliefs. The relief which is relevant to the question to be decided is the prayer that a decree be passed directing the defendants 'to render account of the profits of the temple lands and topes id their possession and to make over the amounts due from them for the Use of the temple.'
13. Section 92 of the Code of Civil Procedure, 1908' re-enacts Section 539 of the Code of 1882 with certain modifications the most important of which is Sub-section 2 which declares that 'Save as provided by the Religious Endowments Act 1863 ho suit claiming any of the reliefs specified in Sub-section 1 shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section. The main contention of Mr. Lakshmanna is that in dealing with the scope of Section 92 the question is not who are the plaintiffs or what is the relation between the plaintiffs and the defendants inter se but what is the nature of the relief sought, and that if the suit relates to a public charitable trust and the reliefs or any of them fall within the class enumerated in Clauses (a) to (h) of Sub-section (1) no Suit can be brought except by the Advocate-General or by two of more persons with his consent even though the dispute be between the co-trustees inter se and relate to matters of internal management and control. I am unable to agree with this contention. The history of the legislation on this subject and the evils which the legislature wanted to remedy show that Section 92 was only intended to govern suits by the public of by the Advocate-General for the vindication of the rights of the public in charitable trusts. I agree with the view taken by Woodroffe J. in Budree Das Mukim v. Chooni Lall Johurry I.L.R. 33 Cal. 789 that Section 539 only governs representative suits brought for the benefit of the public to enforce a public right in respect of an express or constructive trust and does not apply to suits brought by persons to remedy a particular infringement of their own individual right. The object of Clause 2 was to set at rest the conflict of decisions as to whether the provisions of Section 539 of the old code were muandatory or merely permissive and enabling and to this extent the decision of Woodroffe J. is affected by the enactment of Section 92 I do not think it was intended to enlarge the scope of the section by taking away private rights of action. In Ayatunnessa Bibi v. Kulper Khalifa I.L.R. (1914) Cal. 749 and Mahammad Abdul Majid Khan v. Ahmad Said Khan I.L.R. (1913) ALL. 459, which were decided after the passing of the Code of 1908 the view of Woodroffe J was followed with approval. When a trustee has against his co-trustees rights which are personal and quite distinct from the rights of the general public to require that public charities are properly performed it is difficult to see why the sanction of the Advocate-General or the joinder of another person who has no interest in the quarrel between the trustees should be necessary. In the case of hereditary trustees there is the additional consideration that the refusal of the Advocate General to give leave or of a stranger to join in the suit would mean the practical denial of his hereditary rights as against his co-trustees. If the language of Section 92 were plain and clearly involved such consequences Courts will have no option but to apply the section but I am of opinion that there is nothing in Section 92 which compels us to adopt a construction leading to such results. I think two conditions have to be satisfied. The suit should be one for the vindication of the rights of the general public in the charitable trust and the relief should be all or any of the reliefs enumerated in Clauses (a) to (h) of Sub-section 1.
14. There is a conflict of authority in this Court as regards the point now under reference. In Venkatardngam Chetti v. Venkatasubbammah : (1913)25MLJ373 the question arose whether Section 92 Civil Procedure Code, applied to a suit by reversioners who sued for a declaration that the widow has forfeited her right to the office of trustee to a charitable endowment by reason of her having alienated the office, for possession of the trust properties and if necessary for the removal of the widow from the office of trustee. Wallis J. was of opinion that Section 92 had no application to such a suit. After referring to that section he observed 'even so the scope of the section is to protect the rights of the public, and it is not aimed at the infringement of individual rights, and should not, if possible, be so construed as to deprive individuals whose rights have been infringed of their remedy. In Woodroffe and Ameer Ali's edition of the Code, p. 350 (First Edition) the learned authors discuss the question and appear to be of opinion that such a case does not come within it and that, if a general administration of the trust which has included the removal of the trustee is necessary to provide an efficient remedy for the infringement of the individual right in question such general administration may be granted without regard to the provisions of the section'.
15. On appeal Abdur Rahim, Officiating Chief Justice and Seshagiri Aiyar J. reversed the decision Venkatasubbamma v. Venkatarangam Chetii : (1916)31MLJ280 . Abdur Rahim, Officiating Chief Justice, in dealing with the contention that the suit was mainly one for the assertion of a private right and therefore did not fall under Section 92 was of opinion that 'once there has been a breach of trust the right of the public to see that the trust is properly administered arises and that the policy of the legislature, as it is to be gathered from the wording of Section 92 is that in such a case the suit has to be instituted under cetain conditions.' The hardship to the reversioners was in the opinion of the learned Judge not sufficient to outweigh the fact that in the opinion of the legislature suits instituted in respect of breaches of trust should be only in conformity with the requirements of Section 92. Seshagiri Aiyar J was of opinion that when a suit embraces any of the reliefs specified in Clause 1 the effect of Clause 2 was to bar any suit not brought in accordance with the section. In Subramania Pillai v. Krishnaswami Somayajiar I.L.R.(1918) M. 668 it was held by Abdur Kahim and Spencer JJ. that suits by trustees for a declaration that the appointment of a co-trustee by the Devasthanam Committee was invalid fell within the scope of Section 92. Abdur Rahim J was of opinion that the suit was in effect one in which the direction of the Court was necessary for the administration of a public trust Within the meaning of the section and fell within Clause (h) as it was 'a relief cognate to I removing a trustee.' Spencer J. held that the suit was one to I remove a trustee duly appointed by a body who were competent | to make the appointment and distinguished Singara Ckariar v. Krishnaswami Iyengar (1909) 19 M.L.J. 513 , and the other cases cited as having been decided prior to the addition of Clause (a) of Sub-section (1) and Sub-section (2) In Second Appea 1935 of 1914 Sadasiva Aiyar and Napier, JJ. on a bare reference to the provisions of Section 92 were of opinion that a suit for an account by a trustee against his co-trustees fell within the scope of Section 92 and could only be brought! in conformity with Clause (1). A contrary view was taken by Wallis C.J. and Oldfiled J. in Appeal 368 of 1919 Ulagappa Chetti v. Ramanatha Chetti where hereditary trustees sued their co-trustees to recover immovable properties and the sums that on taking an account may be due by defendants. Wallis C.J. observed 'The question is not altogether free from difficulty but I think the correct principle is that this Section 92 governs suits for the vindication of the rights of the public in public charitable trusts and has no application to suits' for the vindication of the right of management by hereditary trustees or to disputes between such-trustee inter se as to their turns of management'. In Veuku Chettier v. Doraisami Chettiar (1921) M.W.N. 439 Napier and Odgers JJ. held that a suit by a trustee against a person whom he alleges to have been dismissed for recovery of trust property and for an account was not governed by Section 92. The learned Judes followed Appeal 368 of 1919 above referred to on the view of Woodroffe J in Budree Das Mukin v. Chonni tal Johurry I.L.R. 33 Cal. 789 .
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.
18. I am of opinion that the decision of Woodroffe J in Burdee Das Muhim v. Choonilal Johurry I.L.R. 33 Cal. 789 though under the old Code of Civil Procedure of 1882 is equally applicable to suit under Section 92 of the Code of Civil Procedure of 1882 is equally applicable to suit Render Section 92 of the Code, 1908 and that the addition of clause has not the effect taking away private right of suit which trustees may have against each other strangers. I would follow the view taken by Wallis J. in Venkatarangam Chetti v. Venkatasubbmma : (1913)25MLJ373 and by the Chief Justice and Oldfield J. in Appeal No. 368 of 1919 in Ulagappa Chetti v. Ramanatha Chetiy.
19. I agree.
20. I agree that we should answer the reference in the negative.