Walter Schwabe, C.J.
1. This is an appeal brought by the two worshippers (plaintiffs in the suit) against the respondent who is the hereditary Dharmakartha of two temples at Chintadripet, Madras. The suit was originally heard before Coutts-Trotter, J and dismissed without calling upon the defendant. But that decision was reversed and the suit came on for trial before Kumaraswami Saatri, J., and it is from his judgment that this appeal is brought.
2. Questions under Section 10 of the limitation Act of 1908 arose and have been argued before us. The law is clear that a suit based on the failure of a trustee to reduce trust property into possession is barred under the Act notwithstanding Section 10. Further a trustee is not liable for the acts or defaults of his predecessors. If the defendant himself had actually received money for which he had not accounted, Section 10 prevents any period of limitation running, and in my view it is also right to say that if he held money in another capacity which he ought to have held as trustee, he could not be heard to say that he held it in the other capacity and not in the capacity of a trustee and therefore in such a case Section 10 could apply and prevent him from relying on the Limitation Act. But I do not think that in this case on the facts, any of these points arise.
3. The appeal really against the decision of the learned Judge in respect of three specific items of the property, (I) property known as 'Nariangadu Paracheri' referred to in paragraph 10(d) and (e) of the plaint. The facts as to this are fully dealt with by the learned Judge in his judgment which is most clearly reasoned and expressed. I can see no reason to disagree with him and I have nothing to add. (2) 'A Bazaar in Swami Pandaram Street' referred to in paragraph 10(f) of the plaint. This question was definitely raised in a suit of 1881 brought by two worshippers against Rajagopal, the then hereditary trustee, the present defendant's father by adoption. That suit was brought on this point (2). I agree with the judgment of the learned Judge as to this and I further incline strongly to the view, though it is unnecessary for the decision, that the matter is res judicata under Section 11, Explanations V and VI, Civil Procedure Code. (3) The property known as 'the ground in Mangapathi Naick Street' upon which Rajagopal built a house for his concubine referred to in paragraph (10)(h) of the plaint, As to this also I agree with the judgment of the learned Judge and I would add that the whole proceeding of 1881 in relation to a window of this house went on the basis that it was Rajagopal's house. I see no reason for holding the contrary.
4. In respect of both the last two items, the present defendant himself applied for and obtained a certificate in 1913 from the Collector certifying that the property was his, and as the consent of the trustee of the temple was required before the certificate could be granted, the defendant gave such a consent himself. This fact seems suspicious and requires explanation, but looking into the matter, it is clear that a full enquiry was held before the Tahsildar and the present plaintiffs were represented. The whole matter was properly advertised by notice and there was no secrecy of any kind and the objections taken now were open to the plaintiffs then and were apparently taken. The result of, that enquiry was that certificates were granted and I can see no reason for holding that they were not properly granted.
5. This appeal, therefore, fails in respect of, these three items.
6. There is another point raised by the appeal, that the learned Judge wrongly directed that, in taking the accounts which he ordered, the Official Referee was to take the actual figures appearing in the account rendered by the defendant as to receipts and disbursements as correct. It is argued that the direction should have been to account for all sums received by him and all sums which he, but for his wilful default, would have received; and it was argued that the accounting period should not have been confined to the period during which he was trustee but should go back to 1893. It was in order to make it clear that that was not his intention that the learned Judge gave the direction in question. I think the direction-is substantially correct. It is, however, said that one book of account produced by-the defendant shows the receipt by him of certain ground rents in respect of Paracheri property while the account on which the Official Referee's report is based and which he, it is said, has taken under the direction as conclusive does not bring in these Paracheri ground rents. If this be so, I think the Official Referee's report is wrong to this extent, for the direction: given by the learned Judge does not prevent him; from taking a figure from one account, and if he finds, that it has not been brought into another account, from correcting the second account accordingly. Further, there is a direction in Clause 3(b) of the decree herein that an account of all recent arid quit-rent not collected for six years before the suit be taken; and in so far as the Paracheri rents were due for the period of six years before the suit, if it can be shown hat they were not included in the accounts on which the Official. Referee based his report, they can in my view be brought into the account of quit-rents not collected because the defendant should not be allowed to say that he had collected them and not accounted for them in his account. In my judgment; if the facts be as stated and these quit-rents although received have not been taken into account by the Official Referee, plaintiffs are entitled to have that account corrected to that extent, and if that matter cannot be agreed between the parties, it-most go back to the Official Referee for a further amended report.
7. In pursuance of the judgment, a scheme has been prepared, passed and acted upon for the last 18 months. The respondent's Vakil objects to the scheme mainly on the ground that an advisory board, if constituted under the scheme, would impose some control over him as trustee. We asked the learned Advocate-General his view on the desirability of such a clause in such schemes, and in his capacity as Advocate-General he attended before us and stated his view to be that where possible such a clause should be avoided in similar schemes, because it had been his experience that it invariably led to friction and generally to litigation. Speaking for myself, quite agree with what he said, because I think that, where a hereditary trustee has been appointed and the control of the charity left in him, and the legislature has not thought fit to take away from him the control or administration of the trust, it is not for the Court, because it may think that it is undesirable that charitable funds should be administered by one man without control or even without audit, to impose a control which was not a part of the original trust. But the Court has very wide powers under Section 92 of the Civil Procedure Code and the circum stances under which those powers should be exercised are very clearly stated by the Privy Council in Mahomed Ismail Ariff v. Ahmed Moolla Dawood 35 Ind. Cas. 30 : 20 M.L.T. 110 in the following words: 'In giving effect to the provisions of the section and, in appointing new trustees and settling a scheme, the Court is entitled to take into consideration not merely the wishes of the founder so far as they can be ascertained, but also the past history of the institution; and the way in which the management has teen carried on heretofore in conjunction with other existing conditions that may have grown up since its foundation. It has also the power of giving any directions and laying down any rules which might facilitate the work of management, and, if necessary, the appointment of trustees in the future.'
8. On the facts of this case and particularly in view of what has happened since this judgment and the findings of Phillips, J., in the application to appoint a Receiver in this matter, it is quite clear to me that the pre sent defendant is not a fit person to he left as trustee without control and, in my view the scheme as. settled errs, if at all, in not being stringent enough but the plaintiffs in this suit have not asked for it to be altered and I think it may well stand. There are one or two minor alterations in the scheme which have practically been agreed to in the course of arguments by both sides and we propose to alter the scheme to that extent and my brother Odgers, J., has accordingly drafted the scheme as altered and the scheme will be altered accordingly.
9. I think that the same order should be made as to costs as was made by Kumaraswami Sasrti, J., viz., that costs of both parties as between Vakils and their client of the appeal and the memorandum of cross-appeal do come out of the temple funds.
10. This is an appeal from a judgment of Kumaraswami Sastri, J. The suit was brought in 1915 by two worshippers of the Adipureswarar and Adikesavaperumal temples in Chintadripet, for the removal of the defendant, who is an hereditary trustee of these temples on the ground of various acts of misfeasance. The suit was accordingly dismissed on the plaintiff's evidence by Coutts-Trotter, J. This was, however, reversed on appeal and the case was remanded' for trial. From the 'decree on remand this appeal is brought and is confined to three items' of property. Chintadripet is a Shrotriem, In August 1787 a Cowle was granted by Government to two persons who were ancestors of defendant giving them the village of Chintadripet by way of Shrotriem for the support of the tem pie in question. A quit-rent was imposed on all lands and houses in the village and the Shrotriemdars were authorised to let oat or dispose of the vacant lands for the benefit of temples.
11. The first item we are concerned with is the Nariengadu Paracheri. This is referred to in paragraph 10(d) and (e) of the plaint. It must be premised that the defendant became a joint trustee of the property in 1919 along with one Parthasarathi. The defendant became a co-trustee in 1912. From 1875-1881 the defendant's father, one Rajagopal, was the sole trustee. The transaction relied on by the appellants to make defendant liable in respect of this property is evidenced by Exhibits F, G, K and M. Exhibits F and G are a declaration and a certificate granted by the Collector to Rajagopal on his petition dated 22nd April 1861 (Exhibit H) in 1861 of a piece of ground bounded on the north by 'a ground belonging to Chintadripet Pagoda' and subject to payment of quit-rent to the temple trustees. The certificate was issued on 60 days notice and the consent of the then Shrotriemdar, Venkatapathi Naidu, was obtained (Exhibit J). Exhibit K is a similar certificate in respect of a part of the same ground granted to Rajagopal in 1863, as is Exhibit M a similar but earlier certificate dated 1858. Now it is said that the defendant is liable for the misfeasance of the then trustee, Venkatapathi Naidu, in allowing these properties belonging to the temple to be thus alienated to Rajagopal, the defendant's father. It cannot be conclusively established that the lands covered by certificates referred to were originally temple lands. I think with Coutts Trotter, J. that they very probably were. Mr. Narasimha Ayiangar, however, contends that this being a family trust and the defendant being a member and an undivided member of this family, he is in the position of a trustee all the time, even prior to the period he became an actual trustee, joint or sole. He relies strongly on a passage in Ramanathan Chetty v. Murugappa Chetty 13 M.L.J. 341 where it is said that the co-trustees in a family trust all form but one collective trustee and must execute the duties of their office in their joint capacity. The case was really one as, to the validity of a scheme of management by turns which had been going on for 19 years and the judgment of the Privy Council in appeal in Ramanathan Chetti v. Murugappa Chetti 29 M. 283 : 3 A.L.J. 707 makes this quite clear, as their lordships there held that the appellant was bound by this user. I do not see, apart from the, question of evidence as to whether these lands were originally temple property, how the defendant can be made liable for these alienations. He is the adopted son of Rajagopal and was born in 1896 long after these transactions took place. Even assuming that defendant was in law a trustee from his birth, the. English Law is that a trustee is only liable for the defaults of his co-trustee in three cases, (a) where he has handed the trust property to him without seeing to its proper application, (b) where he allows him to receive the trust property without making due enquiry as to his dealing with it, (c) where he becomes aware of a breach of trust and abstains from taking the needful steps to prevent it or to obtain redress for it. None of these are proved here and moreover in Kolta Tholasingam Chetty v. Vedachalla Aiyah 42 Ind. Cas. 544 it was held that failure to get possession of the corpus or income of trust property falls within the ordinary law of limitation. Trustees are relieved from indefinite liability except in cases of fraud or fraudulent breach of trust or cases in respect of trust property or the proceeds thereof still retained by trustees or previously received by them and converted to their own use. I hold with Coutts-Trotter, J., that a succeeding trustee may acquire a good title from an outsider as against the trust, provided the former was not a party to the original misappropriation. The worshippers who filed a-previous suit (Original Suit No. 201 of 1881) in which a good deal of the ground in this suit was gone over, did not then allege that this property was temple property misappropriated by the trustees. I think that where a transaction has remained unchallenged for over 50 years and where the managing trustees at the date of the transaction are dead, the onus is on the plaintiffs to upset it on the ground of fraud or breach of trust. This onus, I cannot say, they have discharged and I, therefore, agree with the learned Trial Judge on this item.
12. The next item is 10(f), the Bazaar in Swamy Pandaram Street. It consists of 15 shops but by Rajagopal sometime before 1881 as they are referred to in the plaint of 1881 suit. [Paragraph 11(c) in that suit]. The exhibits relied on are N, O, P, Q. The first is a petition by defendant for grant of a certificate and is dated 12th June 1913, on the ground that appellant had been in possession for about 150 years. P. is the certificate dated July 1914 and Q is the consent of the defendant as trustee to the issue of a certificate to himself. The shops were always private property and there is no record that this land was vacant land at any particular time. There was an objection lodged to the grant of the certificate (Exhibit GGG). The Tahsildar decided after hearing the objections to grant the certificate on the ground that there was evidence that all these properties have long been, dealt with as private property of the applicant and his ancestors. In the judgment in the suit of 1881 (Exhibit D) there is no declaration in favour of plaintiffs in respect of these Bazaars granted from 1889--1892 by Varadiah (trustee from 1881 to 1910) in his private capacity and not as trustee. Contrast Exhibit XXVI, series. I cannot hold that it is established that the land was ever temple property encroached upon by Rajagopal for building the Bazaars. I also think the matter is res judicata but I rest my decision on the evidence.
13. The last item is 10(h) 1/10, Mangapathi Naick Street. It is alleged that this Site over which the same superstructure was built by defendant belongs to the temples. In the 1881 suit, plaint paragraph 11 (a) where the allegation is that defendant (Rajagopal) 10 years ago, (i.e., about 1871) built this house for his concubine and opened a window, in a portion of the house projecting into portion of the temple. Mr. Justice Innes who tried ,the suit oh the Original Side directed the window to be closed and the encroachment (2 feet X 8 feet) to be removed. On appeal the Advocate-General abandoned the order as to encroachment and the decision for closing the window was upheld, the owner of the house being treated as a stranger whose acquisition of an easement the trustees were bound, to resist. The judgments in both the original suit and the appeal are silent as to the site being the property of the temple.
14. The Exhibits concerned are Y, CC (certificate, dated April 1914) DD and EE. This grant was dealt with at the same time and in the same manner as the previous one, [i.e. 10(f)]; there were objections and the objections were heard. The same remarks apply and for the same reasons hold, the case for the appellants must fail.
15. As to the accounts I agree with the order proposed by my Lord and I do not propose to add anything to what he has said. I also agree with what has been said about the scheme settled by Kumaraswami Sastri, J.; in this case. I have re-drafted the scheme accordingly and it is appended to this judgment.
16. I agree as to the order as to costs.