1. The petitioners, who were the plaintiffs in O.S. No. 135 of 1955, on the file of the Subordinate Judge's Court, Madurai, applied under Section 115, Civil Procedure Code, to revise the order of the learned Subordinate Judge, who rejected their application to amend the plaint in that suit.
2. The suit was filed under Section 92, Civil Procedure Code and the main reliefs asked for in the plaint were (1) to modify the scheme and to provide for expenses for educational purposes out of the trust funds, and (2) the removal of defendants 1 to 5 from the trusteeship and the appointment of fresh trustees in their place. I am not concerned in these proceedings with the first of these two reliefs. In paragraph 14 of the plaint the plaintiffs set out the grounds on which they sought the removal of the trustees, defendants 1 to 5, which in substance were mismanagement of the trust funds, to which it was alleged internecine quarrels between the trustees also contributed. The amendment sought was the addition of a further plea which ran:
The plaintiffs submit that the election of defendants 2 and 3 is invalid for the reasons that at the meeting which is said to have elected them, they brought outsiders as stated above and made them vote in their favour. The plaintiffs further submit that under the custom and usage governing the institution and the letter and spirit of the scheme it is only the managing trustee who is entitled to call a meeting of trustees to elect the managing trustee. In this case it appears that though the seventh defendant who was the then managing trustee had applied for directions in E.A. No. 778 of 1955 as early as 1st November, 1955 from this Honourable Court, defendants 1 to 5 claimed to have called a meeting and selected the first defendant as the managing member. The plaintiffs therefore submit that the so called selection of the first defendant as managing trustee even if true is invalid and illegal.
3. The learned Subordinate Judge held that it was a new case that the plaintiffs attempted to set up, which is not permissible by way of amendment. He held further that the scope of the suit filed under Section 92 of Civil Procedure Code should not be permitted to be enlarged beyond that of the sanction accorded by the Advocate-General.
4. The main contention of the learned Counsel for the petitioners was that the amendment was sought only to set out additional grounds for the relief already asked for in the plaint, the removal of defendants 1 to 5 from their office of trustees. In my opinion, the learned Counsel for the respondents was well founded in his cantention, that the proposed amendment could only furnish material for a different relief based on a cause of action different from that pleaded in the plaint.
5. To consider the scope of a suit under Section 92, Civil Procedure Code, the following observations of Woodroffe, J., in Budree Das Mukim v. Chooni Lal Johurry I.L.R.(1905) Cal. 789 (804) are apposite:
It is of course admitted that the trust is a public one. But the section further assumes that the suit is a representative one brought for the benefit of the public and to enforce its rights upon a cause of action alleging a breach of trust or necessity for directions for administration against a trustee and for the particular relief mentioned.
6. A suit for a declaration, that the person in office was not entitled to be a trustee and that the assumption of office itself was invalid, does not, in my opinion, fall within the scope of Section 92, Civil Procedure Code.
7. In Vylhilinga Pandara Sannadhi v. Temple Committee, Tinnevelly Circle : (1931)61MLJ815 , a Division Bench of this Court considered the scope of the analogous provision, Section 73 of Madras Act II of 1927. At page 1014 Curgenven, J., observed:..it appears to me very doubtful whether a suit by a trustee to establish his hereditary right to his office is a suit in respect of the administration or management of the religious endowment to which the trusteeship appertains. It is a suit relating to a personal right, and though upon its decision may depend the question whether or not the plaintiff continues in office as trustee, that question is not one arising out of the administration of the trust, as for instance where a trustee is removed for breach of trust or mismanagement. The suit raises no issue as to the manner in which the trust property has been administered or should in future be administered. From that point of view, too, it will net fall within the terms of Section 92 of the Code of Civil Procedure, a provision which was designed to deal with every aspect of the management of endowments. As in Budree Das Mukim v. Chooni Lal Johurry I.L.R.(1905) Cal. 789 (804) , so here no directions are necessary for the administration of the trust. In dealing with the question whether a suit by hereditary muktears for a declaration that certain persons were not properly appointed trustees fell within the provisions of Section 92, it was held by the Bombay High Court in Nilkanth Devarao v. Ramakrishna Vithal I.L.R.(1921)46 Bom. 101, that the section did not apply because it provided only for two cases, (i) either there must be an alleged breach of any express or constructive trust or (ii) the direction of the Court must be deemed necessary for the administration of any such trust. This, I think, affords some authority for the view that a suit of this character is not one in respect of the administration or management of the endowment.
8. The principle, in my opinion, should be the same, whether it is a personal right of the plaintiff to be a trustee that is asserted, or whether it is the personal right of one or more of the defendants to be trustees that is denied. When the right to hold an office of trustee is asserted or denied and relief is asked for on that, the case would appear to fall outside the scope of Section 92, Civil Procedure Code.
9. If I understood the learned Counsel aright, he did not challenge the position, that a suit for a declaration that a given person is not entitled to be a trustee fell outside the scope of Section 92, Civil Procedure Code. Yet in substance that was what the plaintiffs wanted without seeking in express terms such a relief.
10. The cause of action for the removal of the trustees arose only subsequent to their assumption of office as trustees and that was what was pleaded in the plaint. The cause of action for a declaration that the assumption of office itself was invalid was antecedent to such assumption, in this case the election of defendants 2 and 3 as trustees and the subsequent election of defendant 1 as managing trustee. The 'removal' for which Section 92, Civil Procedure Code, provides cannot be construed to include within its scope cases where the right to hold the office itself is challenged. To put it in other words a trustee de jure can be removed. A trustee de son tort is without any legal right to hold the office. In such a case there can be no need to ask for his removal from office. Apart from the fact, that the proposed amendment can only lead to a relief not specifically asked for and cannot lead to the grant of the relief of removal which was specifically asked for, it is a new cause of action that has to be pleaded. The case based on the proposed amendment is also inconsistent with that already pleaded. The plaint proceeded on the basis, that defendants 1 to 5 were entitled to hold their offices but that by their conduct they made themselves liable to be removed from those offices. The amendment sought was that three of the defendants were never entitled at all to hold their offices. The question, whether both the reliefs, that for a declaration that a defendant is not entitled to be a trustee, and in the alternative, the relief that if the defendant was lawfully entitled to be trustee, by his subsequent conduct he had rendered himself liable to be removed from the office, could be asked for in the same plaint does not arise for consideration in this case. Where there is a multiplicity of defendants in such a suit and the right of only some of the defendants to be trustees is challenged, to what extent such a suit would come within the scope of Order 2, Rule 3, Civil Procedure Code, does not arise for consideration either. The case I have now to deal with is that of an amendment of a plaint. I have pointed that the proposed amendment would produce a new cause of action and also set up a case inconsistent with that already pleaded. Such an amendment is not permissible.
11. It may not be necessary to refer to all the cases cited during the arguments before me, in which the rights and liabilities of trustees de son tort, and in particular their liability to be sued under Section 92, Civil Procedure Code, where the relief sought did fall within the scope of that section were discussed . None of them dealt with the problem, whether invalidity of assumption of office could be one of the grounds on which 'removal' from office could be asked for within the meaning of Section 92, Civil Procedure Code.
12. Even had the amendment been permissible and the learned Subordinate Judge was wrong in refusing it, the question of delay, which he had no occasion to discuss, would have arisen for consideration in deciding whether I should interfere in revision. The validity of the election of defendants 1, 2 and 3 was the subject matter of other proceedings. The plaintiffs were obviously aware of the facts, on the basis of which they challenged the validity of the election, even before they presented the plaint. The delay in seeking the amendment was never really explained.
13. I see no justification to interfere in revision. The revision petition is dismissed with costs.