1. The plaintift is the appellant before this Court. He was one of the five Committee Members of the Meenakshi Sundraswarar Saivite Devastanam at Madura, the other four having been defendants 1 to 4. He and two of the other four Committee Members defendants 3 and 4 in the present suit) filed an appeal to the High Court in a former suit spending monies for the expenses of that appeal out of the Devasthanam funds. The High Court dismissed the appeal in 1898 as unnecessary, (see the case of Aligirisami Naiker v. Sunderaswara Aiyar I.L.R. (1898) M. 278and directed that the costs incurred by the present plaintiff and defendants 3 and 4 in prosecuting that appeal in the High Court 'must be paid by themselves out of their private funds as their appeal was uncalled for.' In other words it was declared by the High Court that the temple funds ought not to have been drawn upon for the expenses of that appeal and the Committee Members who were responsible for the filing of that appeal should pay such expenses out of their private funds. It followed as a necessary consequence that if they had already drawn upon the temple funds for such expenses they were bound to return to the temple treasury out of their own private funds the amount of such expenses.
2. The amount which had been spent out of the temple funds on that unnecessary appeal was Rs. 990-10-0. Plaintiff believing that he (as one of the five Committee Members) was liable for only 1/5 of the amount so improperly spent, paid Rs. 198-2-0 representing his quota. The temple trustee then sued all the five Committee Members in O.S. No. 455 of 1900 for the balance of Rs. 792-8-0 and costs of suit. He got a decree against all the five Committee Members in the Court of First Instance, but on appeal by defendants 1 and 2, the plaintiff not having been a party to that appeal they were exonerated by the Appellate Court, because they (defendants 1 and 2) were not formal parties on the record in the High Court Appeal case. Plaintift was obliged to pay whole of the decree amount in execution of the decree in O.S. No. 455 of 1900.
3. The plaintiff brought the present suit against the other four members of the committee claiming from each of them, (a) 1/5 share of the Rs. 990-10-0 i.e. Rs. 198-2-0 spent improperly on the High Court appeal, (b) 1/5 share of cost (i.e.) Rs. 37-11-0 awarded to the temple trustee in the suit O.S. No. 455 of 1900 brought by him (the trustee) against the Committee members and (c) interest on these two same at 12 par cent per annum from this date when the whole money was recovered from plaintiff such interest amounting to Rs. 84-13-0 total Rs. 320-10-0, from each of the four sets of defendants.
4. The Lower Court decreed the plaintiff's claim against some of the defendants in the suit but dismissed his claims wholly against the 1st and 2nd defendants and against their representatives, (respondents 1 to 3 and 10 before us) both 1st and 2nd defendants having died during the course of the litigation. Though the memorandum values the claim in Second Appeal at Rs. 1046-12-1 the learned Vakil for the plaintiff frankly conceded before us that he could legally claim not more than Rs.. 198-2-0 as contribution, from each of the two sets -of the legal representatives of defendants 1 and 2.
5. The question, then before us, is whether plaintiff entitled to claim such contribution of 1/5 share of the costs improperly spent in the High Court Appeal No. 81 of 1897 from each of the defendants 1 and 2. The Lower Court in disallowing the plaintiff's claims against defendants 1 and 2 bases its decision on the following grounds:
(a) Though all the five Committee Members 'sanctioned from time to time' the incurring of the entire expenses in connection with the High Court Appeal from Devasthanam fund, only three of them were nominal parties as appellant in the appeal.
(b) There is 'no authority for the proposition that the Committee Members are trustees of the Devasthanam in the ordinary sense of that term' as no property vests in the committee' (paragraph 10 of the judgment). Hence the law as to contribution between co-trustees is not applicable.
6. We think that the fact, that the names of the defendants 1 and 2 are. not found in the High Court Appeal records as appellants is irrelevant in the consideration of the questions as to their liability to reimburse to the Devasthanam the costs unnecessarily incurred in that appeal and their consequent liability to plaintiff for contribution. The liability for contribution is not based upon any executable direction in the judgment of the High Court but upon the question whether all five committee Members were equally guilty of the technical breach of trust which is proved by the judgment of the High Court in the case reported in Aligirisami Naiker v. Sunder as wara Aiyar I.L.R.(1898) M. 278 the sufficiency of such proof not being contested by any parties in any of the stages of the litigation in this suit. We have no reasonable doubt, from the overwhelming documentary evidence in the case, (Exhibits B to V) that all five were equally to blame in respect of that breach of, trust. Section 27 of the Trust Act, gives a right of contribution to the refunding trustee against his co-trustees, if all were equally guilty of the breach of trust. Though the Trust Act does not apply to religious trusts (see See. 1) the principle of law embodied in Section 27 of the Act applies to all kinds of trustees (see Lewin on Trusts, page 1177.)
7. The second ground on which the Lower Appellate Court refused contribution against defendants 1 and 2 is that the Committee Members were not 'trustees.' The case in Panduranga v. Nagappa I.L.R. (1889) M. 366 Seshadri Aiytengar v. Nataraja Aiyar I.L.R. (1898) M. 179 Subba Naidu v. Gopalswami Naidu : (1905)15MLJ185 have clearly laid down that neither an individual member of the temple committee nor the committee as a body should take upon himself or itself the duties and the powers of the manager of the temple and that the manager is the trustee in whom the temple property is vested and who alone is entitled to the receipt of its income and represents the temple God (the beneficial owner) fully in litigation and to the outside public. But the records in this case and several other cases which have come before this Court clearly indicate that the temple committees formed for the Madura Devasthanam have been 'exercising a degree of minute control over the details of the manager's action in administering the temple which is hardly consistent with the respective responsibilities imposed on the trustee and on the committee by the provisions of Act XX of 1863.' (See Subba Naidu v. Gopalswami Naidu : (1905)15MLJ185 and have been trying to reduce the managers to the position of mere head ministerial servants of the committee instead of confining the exercise of their powers (as they ought to have done)(a) to laying down the general instruction for the trustees, (b) to calling for periodical accounts (Section 13 of the Act) and for information and explanation where important questions of management are involved; and (c) to giving advice from time to time; and (d) to suspending and even dismissing in cases of gross and continued violation of duties, the committee has been issuing detailed orders to the managers almost daily in regard to the internal management of the institution, the conduct of the litigation and in the appointment and in the dismissal of even the lowest servants of the temple.. In short they have almost completely usurped the powers of the trustee directing him to get their sancti6n even for employing particular legal practitioners in the temple litigation and for paying petty sums in the conduct thereof.
8. Such an usurpation by the committee cannot, of course, prevent the trustee from claiming and taking back his powers at any time. But whatever may be the rights and liabilities as between the lawful manager and the usurping Committee members they are both liable as trustees to the Devasthanam for all acts of breach of trust. The Committee members in this case became virtually trustees deson tort and as such became liable to the cestui que trust for the trust monies in respect of which they committed breach of trust (Lewin, pages 231 and 232). It was on that ground that the Committee Members who brought the High Court appeal formerly were directed to bear the costs themselves and not to make it a burden on the temple funds. As between such trustees defacto there is no sufficient reason to deny the right of contribution, when they have acted together and have been equally guilty.
9. In result the Lower Court's decree will be modified by allowing the appellant to recover the sum of Rs. 198--2--0 and interest thereon at 6 per cent from date of suit from respondents 1 to 3 as the legal representatives of 1st defendant and like sum from 10th respondent as legal representative of 2nd defendant. The plaintiff and respondents 1 to 3 and 10 will receive proportionate costs in all courts. The appellant will pay the costs in Second Appeal of the respondents 4 to 9 unnecessarily joined in the appeal.