1. Defendant 2 is the appellant. This second appeal arises out of a suit which relates to the management of certain religious and charitable trusts. The parties to the suit are Christians. The plaintiff's suit was mainly for a declaration that four persons viz., himself, defendants 5 and 6 and defendant 2 are entitled to manage the suit charity lands once in four years by force of a will executed by one Yaga Pillai ( Ex. B) in 1898. The contesting defendants viz., defendants 1 and 2 pleaded that the will did not bind them, that the suit was not maintainable without sanction under Section 92, Civil P. C., and that it was barred by limitation.
2. The undisputed facts of the case are these; the plaintiff and defendants 5 and 6, are brothers and are the sons of the deceased Yaga Pillai. Yaga Pillai had a brother called Anandam Pillai, who had an only son Sourinayagam Pillai whose son was Appavu who died leaving defendant 1 his widow, a few daughters and three sons, of whom defendant 2 is the only one now alive. The daughters, not having come on record as legal representatives on the death of their mother who died in the course of the suit may be left out of consideration. At the time of the partition of their properties between Yaga Pillai and Sourinayagam Pillai, son of Anandam Pillai they founded the suit trusts in 1886 but made no arrangement for the management of the trusts or the devolution of the trusteeship and did not appoint any trustees. Apparently they jointly or by turns administered the trust. Appavu died in 1901. Sourinayagam died on the 5th January 1905. Yaga Pillai died on the 11th March 1905. He had executed a will, dated the 2nd November 1898, making arrangement for the management of the suit trust properties, and, according to this will, after his death, his three sons, the plaintiff and defendants 5 and 6 and his brother's son Sourinayagam Pillai and their heirs after them should administer the trusts by rotation each managing for a year. After the death of Yaga Pillai confusion arose with regard to the management of the charities and, in consequence, the plaintiff instituted the present suit for the establishment of his joint right of trusteeship.
3. The District Munsif held that the plaintiff could not base his claim on the 'will;' that it was inoperative, that on the death of Sourinayagam Pillai and Yaga Pillai, the trusteeship devolved on their sons, and that the plaintiff and his brothers on the one side and the defendant on the other had equal rights to administer the trusts. A decree was, therefore, passed to the effect that the plaintiff and his two brothers, viz, defendants 5 and 6, were entitled to manage the trusts each for one year in succession and that defendant 2 was entitled to manage for a continuous period of three years after them and so on in rotation: see para 4, Sub-Judge's judgment. The Subordinate Judge has upheld this decree. As regards the plea of limitation the Subordinate Judge held that in the view that the trusteeship has devolved on the plaintiff as one of the heir s of the joint founders, Art. 124 (and not Art. 120), Sch. 2, Limitation Act, applied and that the suit was within time. The plea that the suit is bad for want of sanction under Section 92, Civil P. C., does not seem to have been pressed before the Subordinate Judge: see paras. 3 and 13 of his judgment.
4. Mr. Krishnaswami Aiyar on behalf of the appellant argues (1) that the will being found to be inoperative by both the lower Courts, the Subordinate Judge should have dismissed the plaintiff's suit, (2) that he was wrong in applying the principle of succession to trusteeship of religious and charitable institutions underlying the Hindu law to a case where the parties are Christians; (3) that as this cannot be considered to be a case of hereditary trusteeship, Art. 120 Limitation Act, applied to the case and that the suit is barred by limitation. He has also brought to our notice the finding of the Subordinate Judge that though it appears that the plaintiff or one of his brothers took part in the actual conduct of the charities, the lands or any funds belonging to the trust did not come into their possession at any time after 1909.
5. In the view that we take of the case, it is unnecessary to discuss the interesting questions of law raised by the learned vakil for the respondent. His arguments would be relevant only if we are prepared to uphold the finding of the lower Courts' that Yaga Pillai's will is not binding on the parties and is inoperative; but we are not prepared to accept the lower Courts' opinion on this point as correct. As Yaga Pillai survived Sourinayagam, we think on the death of Sourinayagam he became the sole trustee by survivorship. The will of Yaga Pillai, dated 2nd November 1898, came into operation only after his death. This will cannot be deemed to have been revoked by Sourinayagam's death. Yaga Pillai being the sole trustee, he could provide a method for the management of the trust properties and that is what has been, done by his will. It was argued that as probate of the will has not been taken, the plaintiff cannot get any decree by virtue of it. This argument based on S.187, Succession Act, cannot be accepted. It is clear that the plaintiff does not claim any right as executor or as legatee under the will and so the section is inapplicable. For these reasons we hold that the plaintiff is entitled to enforce his right of management under the will.
6. The next question for consideration is whether the plaintiff's right of management is barred by limitation. If the plaintiff is entitled to enforce his right under the will, then the article that will be applicable is Art. 144, Limitation Act, and not Art. 120 or Art 124. The possession of the parties being that of co-trustees, the plaintiff's right cannot be said to be barred in law unless he has been ousted from management or from possession of the suit properties by the defendants. There is no finding in this case that the plaintiff has been so ousted. The possession of the defendants must in law be considered to be the possession of the plaintiff as well, and even if we accept the statement of the Subordinate Judge that the lands or any funds belonging to the trusts did not come into the possession of the plaintiff at any time after 1909 as a specific finding of ouster since the suit was instituted on the 31st July 1920, that is, before the expiry of twelve years from that date, it is clearly not barred by limitation on account of the defendant's adverse possession.
7. The last point for consideration viz. that the suit is bad for want of sanction under Section 92, Civil P. C., as already mentioned, was not argued before the Subordinate Judge, but even on this point the appellant's contention must be overruled. The suit is one between co-trustees. The plaintiff's claim is only to establish his joint right of management of the trust and its properties along with the defendants. Such a case does not fall within Section 92, Civil P. C.: see Appanna Poricha v. Narasinga Poricha A. I. R. 1922 Mad. 17.
8. Management of trust properties by rotation is well known in this country and this principle has been accepted by the Courts. The scheme of management provided for by the District Munsif in. his decree was not attacked before the Subordinate Judge. The plaintiff under Ex. B is entitled to claim larger rights, but, as the District Munsif points out he is now content to claim equal rights of management with the defendants and give up his claim for preferential treatment accorded to him under Ex. B. It is on this basis that the decree of the District Munsif is framed and that has been approved of by the Subordinate Judge. In the result, we dismiss this second appeal with costs.