1. The suit was brought by the Advocate General under Section 92 of the Code of Civil Procedure against the Petitioner's predecessor in office and one of the reliefs asked for was the settlement of a scheme for the efficient management of the Devastanams and the appointment of a committee of supervision as a check upon the trustee.
2. I am satisfied that in making the petitioner a party to the suit the lower Court committed no illegality or material irregularity and that there was no defective exercise of jurisdiction in its order so as to call for our interference in revision. It is further clear from paragraph 3 of the plaintiff's statement of 20-8-11 and from paragraphs 8, 9, 13 (g), 15, 20 and 22 of the plaint that this suit was not brought solely on account of the personal mis-management of the petitioner's predecessor.
3. The petition is dismissed with costs.
Seshagiri Aiyar, J.
4. I agree: Before dealing with the question raised by Mr. T. Rangachariar that the cause of action against the deceased trustee does not survive against bis successor in office, it has to be noted, that certain specific allegations of misfeasance and breach of trust are made in the plaint against the petitioner while he was acting as agent of the deceased trustee in respect of the suit temple. It may be, as contended for by the learned Vakil, that the petitioner's conduct as agent should not be charged against him as trustee. At the same time, in considering whether the prayer for the settlement of a scheme is only auxiliary to the one for the removal of the original defendant or was the principal relief claimed in the suit, the fact that the person who is said to have contributed to the prior mismanagement of the Devastanam has now become the trustee is a factor to be taken into account. Apart from this, I am satisfied that the cause of action as stated in the plaint does survive against the petitioner. In the earlier portion of the plaint there is a general allegation that the funds of the temple have been misappropriated. In paragraph 9, it is stated that since the assumption of trusteeship by the original defendant 'the affairs of the Devastanam have been drifting rapidly from bad to worse.'' This statement is intended to show that a general scheme is necessary to stop further malversation of the temple funds. Paragraph 12 says that the temple has a surplus of Rs. 26,000 annually. If the Advocate General came to Court with this one allegation and asked for the settlement of a scheme for the utilisation of the surplus income he will be within his rights under Section 92 of the Code of Civil Procedure. In in re Campden charities (1880) 18 Ch. D. 310 the Court of Appeal pointed out that the fact that the surplus income was being applied in a particular manner was not a reason for not framing a proper scheme regarding its appropriation. The same rule must hold good in this country. When the income for a temple s in excess of its expenditure, the Advocate General will be well advised in seeking the aid of the Court for a scheme for its proper employment.
5. Consequently in so far as the allegation in paragraph 12 of the plaint is concerned, the relief for the settling of a scheme will survive against the successors of the original defendant. The statement in paragraph 13 (g) was supplemented by the plaintiff on the 20th August 1911. This is undoubtedly a part of the plaint. In the subsequent statement, there is a distinct allegation that the specific instance is only ' an illustration of the systematic mismanagement which calls for the settlement of the scheme.' On this averment, it is impossible to argue that the cause of action, does not survive against the petitioner. Paragraph 15 of the plaint is even stronger. It complains of the want of means 'for checking what is deposited in the Hundials.' That can only be done in a properly framed scheme. In another place, the plaint charges that other servants of the temple, ' are also making fortunes out of the Devastanam.' This allegation is made with a view to the framing of a scheme. I have therefore no hesitation in holding that the cause of action at least in regard to the relief claimed in paragraph 25 (e) survives against the petitioner. The prayer for the removal of the original defendant must be struck out. I cannot accede to the contention of Mr. Rangachariar that the relief by way of settling a scheme must depend upon charges against the trustees in office. If the Advocate General alleged that the affairs of the temple were mismanaged by a deceased trustee and that in order to render the recurrence of such a state of affairs impracticable, it is necessary to have a proper scheme, he is entitled under the Code of Civil Procedure to seek the aid of the Court. That I take, in substance, is what he asks the Court to do by bringing the petitioner on record in place of the deceased trustee.
6. I am therefore of opinion that the order of the Subordinate judge is right. The petition must be dismissed with costs.