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indu Bhusan Sen and anr. Vs. Kiron Chandra Sen and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1940Cal376
Appellantindu Bhusan Sen and anr.
RespondentKiron Chandra Sen and ors.
Cases ReferredBudree Das v. Chooni Lal
Excerpt:
- .....are not, and that the plaintiffs are the present trustees. it follows that this is a suit by trustees against past trustees for accounts. it is however contended by the appellants that even so section 92 of the code is a bar. we do not accept this contention for which no authority has been cited. section 92 applies only where the suit brought is representative in its nature, that is to say, where the suit is brought by two or more persons as representing the general public in order to secure the proper administration of a public trust : appana poricha v. narasinga poricha (1922) 9 a.i.r. mad. 17, budree das v. chooni lal (1906) 33 cal. 789. it seems to us on these authorities that a suit brought by trustees on their own behalf and in the discharge of their own functions as.....
Judgment:

Narsing Rau, J.

1. This is an appeal under Section 15 of the Letters Patent from a decision of Ghose J. It arises out of a suit for accounts by the plaintiffs-respondents, as the present managing committee of the Kalia Re-modelled High English School, against the defendants-appellants, as the former managing committee, for the period from 1914 to 28th December 1931, when the new managing committee came into office. The trial Court decreed the suit as against defendants 1 and 6, the Secretary, and the Joint Secretary, respectively, but only as regards the period from April 1926 to 28th December 1931. The decree was affirmed on appeal by the District Judge, and again affirmed by Ghose J. on appeal to the High Court. This is now an appeal from his decision. We have been taken in some detail through the history of this school and the arrangements made from time to time for the management of its affairs. It appears that from 1900 to 1931 the affairs of the school were in the hands of a managing committee functioning under what has been described as the Bamford Scheme, but towards the end of 1931 the managing committee was reconstituted on lines recommended by the University of Calcutta. The defendants, of whom there are 16, were amongst the members of the managing committee that went out of office in 1931 and the plaintiffs are the members of the reconstituted managing committee. Three of the plaintiffs, viz. 1, 6 and 10 were also on the old managing committee.

2. The first point raised on behalf of the appellants is that the suit is incompetent by reason of the provisions of Section 92, Civil P.C. Their contention is that the school is trust property, that the members of the managing committee who were in office immediately before 28th December 1931 are still the trustees in law of that property; that the plaintiffs are not properly, constituted members of the managing committee and therefore not trustees; and consequently their suit is not a suit for accounts by trustees against ex-trustees but must be regarded as a suit by certain persons on behalf of the general public against the trustees of a public charitable trust. As the consent of the Advocate-General (or of the Collector under Section 93 of the Code) was not obtained, the suit, it is said, is not maintainable.

3. This point was not taken in the defendants' written statement. No issue was raised on it, with the result that there are not proper materials on the record on which we can come to a finding as to the existence or the character of the alleged trust. But even assuming that the school is trust property and that the members of the managing committee for the time being lawfully in office are the trustees thereof, it appears to us that as the result of the decision in Suit No. 1293 of 1931, the defendant-appellants are not, and that the plaintiffs are the present trustees. It follows that this is a suit by trustees against past trustees for accounts. It is however contended by the appellants that even so Section 92 of the Code is a bar. We do not accept this contention for which no authority has been cited. Section 92 applies only where the suit brought is representative in its nature, that is to say, where the suit is brought by two or more persons as representing the general public in order to secure the proper administration of a public trust : Appana Poricha v. Narasinga Poricha (1922) 9 A.I.R. Mad. 17, Budree Das v. Chooni Lal (1906) 33 Cal. 789. It seems to us on these authorities that a suit brought by trustees on their own behalf and in the discharge of their own functions as trustees, not being a representative suit, is outside the scope of Section 92.

4. The next contention on behalf of the appellants is that it was not open to the plaintiffs to bring a suit for accounts against only some of the members of the old managing committee. It has already been mentioned that plaintiffs 1, 6 and 10 were also among the members of the managing committee that went out of office in December 1931. Here again, we have been shown no authority for the proposition that where some only of certain trustees are known to have committed a breach of trust, a plaintiff must sue the whole body of trustees or none at all. It is true that when there are more trustees than one, all must join in the execution of the trust but it does not follow that when some of them commit a breach of trust, all of them must be deemed to have joined in it and must be sued collectively. The third contention on behalf of the appellants is that the decree as made is erroneous in law on two grounds : (1) Exception is taken to the direction given by the trial Court as regards certain legal expenses. The Subordinate Judge observed towards the end of his judgment:

In taking accounts the money spent for supporting the suit filed at Jessore and the money spent for the Narail suit out of the school fund will be considered as moneys which should not have been spent at all.

5. It is urged before us that if trustees on proper legal advice bring legal proceedings, the mere fact that they fail is no ground for saddling them personally with the expenses of the litigation. It seems to us however that the question whether in a given case legal proceedings were instituted in good faith or were, on the contrary, frivolous or vexatious is a question of fact. In the present case the Subordinate Judge has found against the appellants on this question. His finding was not questioned at the hearing of the appeal before the District Judge and cannot be questioned in second appeal. (2) The next ground on which the decree is attacked is that it is said to be not in accordance with the pleadings, because of a certain direction given by the Subordinate Judge. The direction runs: The accounting will be done with special reference to the items referred to in the evidence of Kiron Babu, Indu Babu and Naresh Babu.

6. It is said that some of the items here alluded to are not mentioned in the plaint. But, in a suit for accounts, the plaintiffs cannot be expected to enumerate exhaustively all the items complained of. Indeed, para. 20 of the plaint makes it clear that the list given there is not meant to be exhaustive but merely illustrative. If the Commissioner has allowed in the plaintiff's favour any items which fall wholly outside the scope of the plaint and not merely outside the list of items in para. 20 of the plaint it will be open to the defendants to object before the Subordinate Judge before the final decree is passed. We dismiss this, appeal with costs.

B.K. Mukherjea, J.

7. I agree.


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