Ramachandra Iyer, J.
1. This appeal arises out of a suit filed under Section 92, Civil Procedure Code and relates to the period for which the trustees, who have been removed by the decree of the lower Court, have to account. The Collector of Tiruchirapalli, who was the plaintiff in the suit, is the appellant.
2. The respondents, who number about 31, are the descendants of one V.M. Muthukaruppan Chettiar. Muthukaruppan Chettiar founded several charities, one of which was an Annadanam charity at Tirumayam in Tiruchirapalli District. The appellant claimed that the properties set out in Schedules A to D to the plaint belonged to the Anandanam trust established by V.M. Muthukaruppan Chettiar, that the respondents asserted a hostile title to the trust and that they were guilty of breaches of trust, and prayed for their removal and for accounts.
3. Schedule A to the plaint is the chatram in which Annadanam is to be performed. B Schedule covered lands in Olakkudipatti village. C Schedule item 1 is 31 9/12 shares out of 37 shares in the village of Mangalanadu, which is of an extent of about 360 velis. The second item of C Schedule is certain lands in Arasarkulam village. D Schedule covered the movables belonging to the choultry.
4. There were six branches in the family of Muthukaruppan Chettiar and the seniormost member of the various branches managed the trust by turns. Respondents 1, 7, 15, the father of respondent 17, respondents 19 and 22 were the managing members of the various branches, who were at some time or other in management of one or more of the properties mentioned above.
5. The respondents contested the suit. Respondents 3, 15, 18, 19 and 25 filed a common written statement while the 15th respondent filed a separate written statement. The substance of the contentions so far as it is relevant for the present purpose is that the former set of respondents pleaded that items 1 and 4 of B Schedule and item 1 of C Schedule belonged to the family and the income therefrom was exclusively allotted to certain religious and charitable purposes at the discretion of the members. They, however, admitted that A Schedule, items 2, 3 and 5 of B Schedule, item 2 of C Schedule and D Schedule belonged to the Annadanam trust.
6. The 14th respondent contested the claim but admitted that all the properties excepting C Schedule, item I belonged to the trust, and while the property was owned by the members of the family as their own the income was expended for the maintenance of the charities and the religious trust. All the respondents denied the alleged malversation of the funds of the institution.
7. The learned Subordinate Judge, after giving the necessary findings, held that A, B, C, and D Schedule properties belonged to the V.M. Annadanam Chatram Charity at Tirumayam, and having regard to the hostile title set up by the respondents to the properties of the institution removed them from the office of the trusteeship and directed the properties to vest in the trustees to be appointed under the scheme to be framed by the Court. He also directed that the 22nd respondent should render accounts of his management from 12th January, 1946 to 6th May, 1947, and that the 17th respondent should produce the account books of his father in respect of his management of item 2 of the S Schedule properties for the same period. The learned Subordinate Judge held that the 22nd respondent should be accountable in respect of A Schedule properties, items i to 7 of the B Schedule properties, item 1 of the C Schedule property and items 1 to 154 of the D Schedule properties. As regards the 17th respondent he was directed to produce the accounts of his father's management of the 2nd item in S Schedule property. As regards the accounting, the learned Subordinate Judge held that there has been no misappropriation of the funds of the charity by the members of the family, and that in the circumstances of the case Article 120 of the Limitation Act would apply to the claim, and as a receiver was in charge of the properties from 6th May, 1947, the accounting parties were liable to render account for the period which commenced six years before the date of suit and terminated with the date when the receiver took possession of the properties.
8. The respondents have not challenged the decision of the lower Court. The plaintiff, however, has filed an appeal in regard to the disallowance of the account for the period anterior to 12th January, 1946.
9. The learned Government Pleader, who appeared for the plaintiff-appellant, contended before us that Section 10 of the Limitation Act would apply to the present case and not Article 120 of the Limitation Act. So far as we are able to see from the records it is difficult to ascertain precisely what exactly was the nature of the accounts that was demanded of the respondents. We are unable to ascertain whether the accounting that was required of the respondents was an accounting for the mere ascertainment of the assets existing on the date when the Receiver took possession or one for wilful default or for misapplication of funds by the respective parties. The learned Government Pleader, however, made it clear before us that the accounting that is required of the respondents was of the latter category, that is for the alleged diversion of funds by the respective trustees in possession of the various items of properties.
10. In V.K. Kelu v. C.S. Sivarama Pattar : AIR1928Mad879 , it was held that it is a general principle that back accounting would not be decreed except on proof of dishonesty and malversation. The decision in that case was rendered in a suit under Section 92 of the Civil Procedure Code. That section provides for giving directions for accounting in a case where there has been an alleged breach of trust. Therefore, the question to be considered is whether the appellant has made out a breach of trust, dishonesty or malversation of the trust funds.
11. It is not the appellant's case that any of the respondents applied the income from the properties to any personal purpose of his own. The only case urged before us is that there was a misapplication of the funds by the respondents, who were in charge of the properties, having spent the money for other charitable purposes and for celebrating fastivals in certain temples. So far as the conduct of the Annadanam Charity is concerned the learned Subordinate Judge has accepted the evidence of D.W. 5, who spoke to the fact that Annadanam was regularly conducted in the chatram, till the Receiver came into possession of the properties. There is no evidence on the side of the plaintiff to show that there was any misappropriation or malversation of the trust funds. The 22nd respondent, who is the main accounting party, had been maintaining regular accounts and he had also filed the same in the lower Court, Exhibits B-4 to B-18. No attempt was made either in the lower Court or here, to find out from the account books any misappropriation by the trustees or any breach of trust. D.W. 1, who is the 15th defendant, stated in his cross-examination that during the past 10 years the income from the Mangalanad lands, that is C Schedule, item I was used not only for running the chatram but also for conducting the temple. The learned Government Pleader placed great reliance on the so-called admission of the 22nd respondent giving evidence as D.W. 4 when he stated that the Mangalanad income had been never used for the chatram so long as he was in management of that property. That witness, however, stated that he did not know what the other branches did with the income from the Mangalanad. He, however, clarified this evidence in his cross-examination when he stated that he had never utilised the Mangalanad income for his personal purposes. As early as 1940 and 1945 he had stated that Mangalanad property was not partible property but one the income from which had to be utilised for the chatram, temple and other charities. There is no satisfactory evidence in this case as to the terms on which the original dedication was made. So far as the Mangalanad properties are concerned we find a mention of these properties in the extracts from the Inam Register, Exhibit A-1. An enquiry was made in regard to these properties by the Inam Commission. Although it was a private endowment, the properties were purchased from certain inamdars holding a battavrithi inam, which was granted by the ancient rulers. Exhibit A-i refers to a statement by Muthukaruppan Chettiar in which he stated that the properties had been left for the Annadanam Chatram built by him at Tirumayam, and that Annadanam charities were being done. Exhibit A-2 is the extract from the Huzur Register kept by the Collector of Tanjore. It is of the year 1862. Exhibit A-2 is a record of the inam proceedings contemporaneous to Exhibit A-1. That refers to a statement of Muthukaruppan Chetty that the proceeds from the Mangalanad lands had been appropriated towards the support of a choultry erected by him at Tirumayam. The other evidence discloses that for a long number of years the family had been utilising the income from the properties not merely for the expenses of the Chatram but also for festivals in the temple and for other charitable purposes. No attempt has been made before us to show from the account-books filed in the case or otherwise the extent of the charities so done in relation to the total income from all the properties dedicated to the trust. It is no doubt made out from the evidence of D.W. 4 that some portion of the income from the properties had been utilised by the members of the family for a long number of years in the performance of certain other charities and festivals in a temple. A mere spending for other religious or charitable purposes cannot always amount to a diversion of the trust funds. It may be that these charities or the performance of the religious services involved the distribution of food to the poor. It is not uncommon that in certain Annadanam choultries expenses are incurred in connection with the performance of festivals in temples. These acts cannot by themselves amount to a diversion of funds and there is no evidence to show what was the amount so spent in relation to the amount spent for the main trust, viz., Anandanam trust. In the present case, the appellant has failed to show that there has been such a diversion of funds as to be termed a misappropriation or malversation of the trust funds or even a breach of trust. We are of opinion that under the circumstances the appellant will not be entitled to call upon any of the respondents to account for the period of his management of the properties. The appeal fails and is dismissed, which means the decree of the lower Court is confirmed.
12. It is unfortunate that the respondents were not represented at the hering of the appeal.