1. This appeal is directed againstthe judgment and decree of the learned Subordinate Judge of Kumbakonam in O. S. No. 68 of 1951.
2. In Elandurai village there are 60 velis ofland of which 45 velis are inam sarvamanyamlands. The rest are tharapu lands. In regard tothe mirasdars of these sarvamanyam lands there are certain properties commonly owned by thereand which are utilised for remunerating the villageartisans and also for such purpose as are obligations on the part of these inam sarvamanyam mirasdars like channel-digging, the performance of village utsavams etc. The properties set apart incommon seem to be considerable. It may be stated at the outset itself and what has been pointedout by the learned counsel for the respondent thatthe defendants own considerable shares in theseinam servamanyam lands in comparison to whomthe shares owned by the plaintiffs are inconsiderable.
3. In these circumstances, in 1937 the sarvamanyam mirasdars have met and they have put the three defendants in management of these common properties.
4. But apparently this arrangement has not been successful to the extent of satisfying all the mirasdars and as usual there seems to be a faction with the result that this suit has been filed for framing a scheme and secondly for making the defendants account to the plaintiffs in regard to the management of these common samudayam properties.
5. On coming to court the plaintiffs were met with the contention on the part of the defendants namely that first of all the suit as framed is not maintainable because when the samudayam properties are owned by these mirasdars as co-owners and it is neither a public trust nor a private trust, no question of framing a scheme arises and the only remedy of the dissatisfied mirasdars is to ask for a partition and rendition of accounts or settle the matter out of court by the mirasdars assembling and defendants by a set of new managers in whom they have trust.
6. The defendants however made it clearthrough the first defendant that they are not averseto accounting as all, that as a matter of fact theyrealise their responsibilities and they have beenperforming their duties properly and they do notwish to escape any liability under the head of accounting.
7. The learned Subordinate Judge came tothe conclusion that on the frame of the suit ascheme cannot be framed and it followed that thissuit cannot be converted into a suit for accountingand a decree passed on that foot. Therefore hedismissed the suit.
8. The defeated plaintiffs appeal.
9. In appeal I am of the same opinion as thelearned Subordinate Judge under both heads.
10. This is not a case of either a public or private trust in regard to which schemes can be framed. It has been held by this Court in Narayanaswami Naidu v. Balasundaram Naidu : AIR1953Mad750 , followed in Chellam Pillai v. Chatham Pillai, AIR 1953 Trav C 198 (B) that even in the case of private trusts, schemes can be framed. BUT in the context of this case that decision has no application. This is a case of co-ownership of samudayam properties in which each of these sarvamanyam mirasdars has a share and what is his is that of the other man also. It is a case of being mine and thine. Therefore in such a case we cannot merely juggle with words and say that these managers were put in that position by the other mirasdars to look after the properties as their delegates or trustees and from the expression 'trustees' spell out a trust and then spell out from a trust the foundation for framing a scheme. Therefore the learned Subordinate Judge rightly pointed out, following the decisions in Yegnarama Dikshitar v. Gopala Pattar, 1917 MWN 595: AIR 1918 Mad 733 (C), Midnapore Zamindary Company Ltd. v. Naresh Narayan Roy ILR 51 Cal 631: AIR 1924 PC 144 (D), Khiaram s/o Hariram v. Tahilram, AIR 1947 Sind 134 (E) and Bhagavan Sahai v. Mukundalal : AIR1949All562 that the proper remedy open to these plaintiffs was to file a suit for partition and rendition of accounts by the persons managing the properties. I agree with him that barring this remedy the only other remedy open to these plaintiffs which has also been indicated by him is by replacing by consent, by majority or otherwise, the present set of managers or delegates by new set of managers and for which apparently they seem to have slender hopes of doing so. Therefore point No. I has got to be decided in favour of the defendants as has been done by the learned Subordinate Judge of Kumbakonam.
11. Turning to the second point, the fact that the Ist defendant endorsed that he considers himself accountable would not enable us to convert this into a suit of a different nature and give a decree for accounting. The learned Subordinate Judge has pertinently pointed out that if there is no private trust, then there is no question of applying Section 10 of the Limitation Act invoked in paragraph 17 of the plaint and the proper article that may be applicable in a case of partition and rendition of accounts would be Article 120 and even assuming that by the endorsement on the back of the plaint on 14-8-1952 the 1st defendant had undertaken to render accounts to all the co-owners like the plaintiffs for the plaint period, the question would be whether any accounting could be ordered in this suit as framed and which is not one for partition. The plaint in paragraph 21 (b) prays for a decree for accounting against the defendants surcharging them and for any surplus being handed over to the new trustees to be appointed In this suit. Therefore the learned Subordinate Judge has rightly pointed out that this prayer is so closely and inextricably blended with the prayer in paragraph 21(c) of the plaint wherein a scheme for management is asked for, that it would not be proper to cut and chop and convert the suit of one nature into a suit of different nature and grant a relief not on sound and well established principles but simply in the hope that some justice might be done and the village affairs might be run smoothly. As once again pointed out by the learned Subordinate Judge, if the suit for the framing of a scheme for management of private properties at the instance of co-sharers, whose remedy is a suit for partition, is not maintainable, it would follow that no trustees could be appointed in this suit, for the appointment of any trustee even at the risk of repetition would mean that the properties would vest in the trustees, and co-sharers or co-owners would cease to have any rights of ownership, which is not the basis in the plaint, which does claim common ownership in the suit properties. Therefore there cannot be 'accounting' as prayed for in paragraph 21(b) of the plaint, where the surplus is asked to be given to the trustees to be appointed in this suit. The only advantage of the endorsement of the first defendant is that it would act as a personal estoppel against him and it would not be open to him to deny the liability of the managers for their stewardship during the period in question.
12. The conclusions of the learned Subordinate Judge being correct, they are affirmed and this appeal is dismissed with costs.