1. This appeal arises out of a suit to enforce the terms of an arrangement (Ex. B) entered into between the parties in 1898, in respect of a temple or mutt founded and endowed by one of their predecessors. Shortly before the date of this agreement, a suit had been filed by the present second defendant against the present first defendant impleading the present plaintiff as second defendant therein, to establish the joint right of that plaintiff with the first defendant to manage this institution. The learned District Judge who tried the suit (O.S. No. 34 of 1896) held against the joint right claimed by the plaintiff. It is unnecessary for us to canvass the grounds of this judgment because before the expiry of the time for perferring an appeal therefrom and, according to the finding of the learned Subordinate Judge, in view of a contemplated appeal by the then plaintiff the parties on the advice of respectable friends settled the dispute in accordance with the terms embodied in Ex. B.
2. Mr. Venkatachariar on behalf of the appellant before us mainly argued the appeal on the basis that this is something like an ordinary contract of which the plaintiff is now seeking specific performance by way of a direction couched in terms of an injunction and he contended that the agreement contains so many details that if the matter should be viewed as a claim for specific performance it is not an agreement which the court would think of specifically enforcing. This argument seems to us to rest on a fallacy. The arrangement is no doubt in a sense the result of an agreement between the parties but it is an agreement by which they defined the manner in which they are to carry out the duties of a trust which in one view of the law had devolved on them jointly. As pointed out by this Court in Ramanathan Chetti v. Murugappa Chetti : (1903)13MLJ341 and by the Judicial Committee in Ramanathan Chetti v. Murugappa Chetti (1906) 33 I.A. 139 : 1906 1. L.R. 29 Mad. 283 : 16 M.L.J. 265 (P.C.) such arrangements, if they are conducive to the interests of smooth administration of the affairs of the trust, are really in the nature of schemes framed for the management of the trust and will be binding upon the parties thereto and their representatives till modified either by common consent or in some manner known to law. It is not therefore correct to describe the action merely as one for specific performance of a contract.
3. Mr. Venkatachariar next argued that under the terms of Ex. B the position of the plaintiff and the second defendant was merely that of a kind of agent and not that of a co-trustee. We are unable to agree with this contention. There are no doubt certain clauses which deal with documents to be taken-in respect of the transactions of the trust, providing that the document should be taken in the first defendant's name as trustee. We do not understand those clauses to mean that the first defendant was to have any different legal status from his brothers. The only arrangement was that documents relating to the trust should be taken in his name, describing him as trustee. The other provisions of Ex. B make it clear that for legal purposes their rights were regarded as equal, though in respect of prasadams a small excess is provided for in favour of the first defendant. It is noteworthy that the right to settle the budget, the right to inspect the accounts and the right to decide upon loans or purchases out of the funds of the institution are given to the three jointly and the arrangement is intended to be perpetual so as to be binding upon the descendants of the parties as well. The argument that the plaintiff was merely constituted as an agent is therefore untenable.
4. It was next argued that if the Court should give effect, to the terms of Ex. B the Court will be compelling the first defendant to run the risk of a breach of trust and reference was made in this connection to Section 26 of the Trusts Act. The answer to this argument is furnished by the observation of the Privy Council in Ramanathan Chetti v. Murugappa Chetti (1906) 33 I.A. 139 : L.R. 29 Mad. 283 : 16 M.L.J. 265 (P.C.). Such arrangements for management of an institution are not in any sense an alienation of the office or delegation of the duties of the office because ex hypothesi the arrangement is made between persons who are jointly entitled to act as trustees. Section 26 no doubt provides for the liability of a trustee who hands over trust funds into the hands of his co-trustee without seeing that the terms of the trust are carried out. If under the terms of Section 26 the obligation rests upon the first defendant to see that the plaintiff carries out the terms of the trust we see no reason why the first defendant should not see to it.
5. The decision in Ram Charan Bajpai v. Rakhal Das Mookerjee I.L.R.(1913) 41 Cal. 19 and Crosse v. Glennie (1843) 2 Y & C.C.C. 237 : 63 E.R. 104 do not really bear upon the case. Neither of them related to the rights and duties of trustees inter se; and in Crosse v. Glennie (1843) 2 Y & C.C.C. 237 : 63 E.R. 104 Sir J. L. Knight Bruce V.C. only said that the Court of equity need not grant relief in the case because it appeared to the learned Judge that the plaintiff had his remedies at law. At the end of the judgment, he makes it clear that he was dismissing the petition without prejudice to any action or application for mandamus.
6. Our attention was invited to the decision of this Court in Krishniengar v. Viraraghavathathachariar (1915) 2 L.W. 607 where it was pointed out that even as against a trustee there could be no executable direction to carry out a particular festival. We are not at present concerned with the stage of execution of the decree. But we do not think that the learned Judges there intended to say that the rights of a person claiming to be a joint trustee could not be declared by a decree or that an injunction could not be issued against trustees for any purpose whatever.
7. There is however some force in the appellant's contention that the decree as framed by the learned Subordinate Judge may give rise to difficulties as throwing upon the Court the duty of executing every direction contained in Ex. B. We do not think this was really what was intended; but to avoid any misapprehension we could modify the terms of the decree as follows. For the words
It is ordered and directed that the first defendant do carry out the terms of the suit agreement. (Ex. B.). dated 6th April 1898 'substitute' that the terms of the agreement Ex. B dated 6th April 1898 are binding on the parties.
8. For the words:
allowing the plaintiff to act as joint trustee and the first defendant do further bring into the mutt accounts and mutt custody the produce of the mutt lands and rnnd it over to the plaintiff in terms of the said agreement dated 6th April, 1898 (marked as Ex. B in the suit).
9. Substitute the following.
and it is ordered and directed that the first defendant do bring into the mutt accounts and mutt custody the produce of the mutt lands or their proceeds up to this date and hand the same over to the plaintiff in terms of Ex. B to be applied by the plaintiff for the purposes of the trust and the first defendant be restrained by an injunction from interfering with the exercise of the plaintiff's right as joint trustee and in accordance with the terms of Ex. B.
10. As the appeal has substantially failed the appellant will pay the respondent's costs of this appeal.