Appeal No 355 of 1965
Appeal by special leave from the judgment and order dated April 4 1961 of the Madras High Court in Appeal No 99 of 1957
N C Chatterjee R Thiagarajan for R Ganapathy Iyer for the appellants
K Gopalachari and R Gopalakrishnan for the respondents
The Judgment of the Court was delivered by Ramaswami J
This appeal is brought on behalf of the plain tiffs by special leave against the judgment of the Madras High Court dated April 4 1961 in Appeal No 99 of 1957
In the suit which is the subject matter of this appeal the plaintiffs prayed for the settlement of a scheme in respect of a Trust Known as Sina Ravanna Mana Pana Sona Guru Puja Mutt at Pillamangalam Alagapuri Tiruchnapalli District and for an account of the management of the Trust by the late N section Chockalingam Chettiar and for certain incidental reliefs
The case of the plaintiffs was that the Trust was a joint foundation made on November 12 1919 by Sinnakaruppan Chettiar father of plaintiffs I and 2 and grand father of plaintiffs 3 Raman Chettiar father of plaintiff No 4 Subramaniam Chettiar Plaintiff No 5 Perianan Chettiar father of defendant No 3 and Chockalingam Chettiar father of defendant No 1 and grand father of defendant No 2
It was said that the Trust was founded for conducting puja to God Vinayagar installed in the Mutt by an Oduvar to do special pujas for the Samayarcharyars viz Appar Sundarar Sambhandar and Manickavachakar and ordinary pujas to the other 63 Nayanmars on their birth days to conduct a Thevaram Patasala and feeding the Pupils
It was alleged that at the time of the foundation Chockalingam Chettiar contributed Rs 25000Sinnakaruppan Chettiar Raman Chettiar Subramaniam Chettiar and Perianan Chettiar contributing Rs 6250 each
Hundies were passed by the four contributors for Rs 6250 each in favour 899 of the first defendant s father on November 12 1919 and they were cashed in due course
it was alleged that the joint founders had at the time of foundation appointed Chokalingam Chettiar who was the largest contributor as the manager and executive Trustee and the latter had constructed buildings for the Mutt and bought lands in Manakkarai village Mannargudi taluk
On November 27 1943 Chockalingam Chettiar nominated defendant No 2 his grand son as the executive Trustee
It was alleged by the plaintiffs that defendant No 2 had stopped the pujas to the Nayanmars and Samayacharyas and had discontinued the Thevaram school and the feeding of the boys
Several other acts of mismanagement were alleged in the plaint
The suit was mainly contested by the second defendant who alleged that the sole founder of the Mutt was the late N section Chockalingam Chettiar his grandfather who at first installed the Vinayakar image and also the 63 Nayanmars and established the pujas for the four Samayacharyars and the Nayanmars
He was also the sole trustee and was in exclusive management from the foundation of the trust till November 29 1943 when by a registered instrument he appointed the second defendant and his descendants as hereditary trustees
It was denied that the plaintiffs were joint founders though they had made contributions for the management of the Mutt
It was said that from the very date of contribution the plaintiffs never bargained for any rights as trustees but they accepted N section Chockalingam Chettiar as the sole trustee
The charge of mismanagement was totally denied by the defendants and it was said that the trust was being maintained and conducted on a much grander scale than during the trusteeship of the senior Chockalingam
It was asserted that the daily puja to the Vinayakar and the ordinary and special pujas to the Nayanmars and the Samayacharyars were all performed with scrupulous regularity
The suit was dismissed by the Subordinate Judge of Pudukkotai by his judgment dated January 31 1957
The finding of the Subordinate Judge was that the sole founder of the trust was the senior Chockalingam Chettiar who conducted it with the aid of moneys contributed by himself and other persons and that at the time of the foundation the other four contributors did not reserve for themselves any right in the trusteeship of the Mutt
It was also found by the Subordinate Judge that the charges of mismanagement were unfounded and no case was made out on behalf of the plaintiffs for framing a scheme
The judgment of the Subordinate Judge was affirmed by the High Court in Appeal No 99 of 1957 by its judgment dated April 4 1961
The High Court substantially agreed with the finding of the Subordinate Judge
It was held by the High Court that the evidence made it quite clear that the contributors agreed to leave the management of the trust solely in charge of the senior Chockalingam
The High Court also agreed with the Subordinate Judge that the 900 plaintiffs had failed to establish that all the contributories were joint founders and that they were entitled to turns of management in proportion of their contributions
The only matter on which the High Court expressed its disagreement with the Subordinate Judge was with regard to the date of the foundation of the trust
The High Court expressed the view that the trust was founded in 1919 but the Subordinate Judge found that the trust had been founded much earlier though it took a definite shape in the year 1919
As regards the charge of mismanagement the High Court agreed with the Subordinate Judge and held that none of the charges had been established and accordingly there were no grounds made out for the framing of a scheme or the removal of the second defendant from the management of the trust
The first question to be considered in this appeal is whether the appellants are right in their contention that they were joint founders of the trust along with the senior Chockalingam
It was contended on their behalf that Exs
A 1 and A 3 described the contributions of the sum of Rs 6250 as having been made towards 18th Pangu  or share
Reference was also made to exhibit A 5 ledger account of the Mutt in which the contribution is described as the share capital
It was pointed out by Mr N C Chatterjee that the vilasam of the trust SRMPAS supports the claim of the appellants that they were joint founders
The High Court has however rightly pointed out that these two circumstances are not decisive
There is on the contrary an admission on behalf of the first plaintiff that the contributories were not treated as founders
In the course of his evidence the 5th plaintiff as PW 1 stated as follows  As Chockalingam Chettiar held the largest number of shares the other four requested him to administer the suit trust maintain accounts and render accounts to the four other shares on demand 
All the five pangudars were present when the decisions to found the charity was arrived at
We decided that senior Chockalingam should manage the charity to be founded
None of us demanded that the pangudars should administer the trust by rotation
None of us suggested that the terms of the endowment should be reduced to writing
We wanted senior Chockalingam to consult us with reference to important matters pertaining to the administration
We did not define the nature of the matters with reference to which we should be consulted
      901 Since the inception of the trust no meeting of the five pangudars was ever held
Nor were minutes of such proceedings kept
Chockalingam used to have informal consultations with us
At no time between 1919 and 1945 the year of senior Chockalingam s death did we ever call upon him to show us his accounts
Nor did he show us his accounts
We never asked him to what the total income from the lands and buildings was
I do not remember the particulars of information which senior Chockalingam voluntarily gave us
 The conduct of the parties subsequent to the foundation of the trust is also not consistent with the claim now put forward on behalf of the appellants
Senior Chockalingam acquired considerable properties between 1919 and 1945 on behalf of the trust
Exhibit B 2 dated June 23 1920 exhibit B 3 dated January 27  dated June 18 dated June 22 dated January 4 dated March 2 dated September 30 dated September 30 dated June 6 1936 and exhibit B 12 dated April 5 1937 are all sale deeds solely in the name of the senior Chockalingam
The mutt building had always stood in the name of the senior Chockalingam in the register of Alacapuri Panchayat Union
The oral evidence adduced on behalf of the respondents which has been accepted both by the Subordinate Judge and by the High Court also shows that there was a total non interference on the part of the plaintiffs in the management of Chockalingam till he appointed the second defendant as his succeeding trustee under exhibit B 1 and there was a total non interference also with the management of the second defendant after that date
PW I also admitted in his evidence that the second defendant was appointed as the successor of senior Chockalingam and at the time of the appointment all the plaintiffs and defendant No 3 agreed that defendant No 2 should be so appointed as the sole managing trustee
If the plaintiffs had any right to manage the trust by turns as they now claim it is not likely that they would have agreed to the second defendant being appointed as the sole trustee in place of senior Chockalingam
In our opinion the High Court was right in reaching the finding that the plaintiffs have failed to establish that they were the joint founders of the trust or that they were entitled in turns to management in proportion to their contributions
It is not a correct proposition of law to state that every donor contributing at the time of foundation of a trust becomes a founder of the trust
It may be that in a particular case all the contributors of a trust fund become the founders of the trust itself but the question when a contributor would become in law a joint founder of the trust would depend not merely upon the fact of his 902 contribution but also upon the surrounding circumstances proved in the particular case and the subsequent conduct of the parties
In In the Matter of the Endowed Schools Act 1869 and In the Matter of the St Leonard Shoreditch Parochial Schools1 it was held by the House of Lords that where a charity is established by
subscriptions the original subscribers alone are the founders and the later benefactions are on the footing of the original foundation
At page 308 of the Report Earl of Selborne LC stated Now let us consider what is the reasonable manner of applying to such a charity the word founder 
It is reasonably clear that not every subscriber or contributor could be a founder having control over the school or capable within the meaning of the Act of Parliament of impressing on it by his own act or by his own authority a denominational character
It is also reasonably plain when you have once started with a foundation in 1705 though by small beginnings yet that everything afterwards added every accretion to the original subscriptions which was not an endowment for any new and special purpose must be taken to be upon the footing of the original foundation not a new foundation but something contributed for the purpose of the original foundation  
Now it is quite conceivable that a number of persons might have met at that time and might have come to a common agreement as to the purposes for which they should subscribe and solicit subscriptions and if that had been embodied in writing and if they had solicited subs criptions on the footing that either they themselves were to make a law for the charity and give it statutes or that this was to be done by others in a particular manner or if in any original documents soliciting sub scriptions there had been a written law laid down for the charity expressing the purposes for which it was to be founded those persons so initiating the subscriptions and so declaring the purpose for which they were made and solicited might be regarded as founders within the meaning of this clause
But it appears to their Lordships to be quite impossible to attribute that character to those who come after them whether they contributed to the building fund or any other fund in aid of the existing charity or not
They did not found the charity they found it existing they merely aided and assisted it 1 Io AC 304
90 3 In Sattikara Venkatarama Chettiar vs 0
P Damodaram Chet tiar1 there was a deed of trust executed by V in favour of 19 persons known as Chettithanakaras which stated that he alone was unable to make and set up idols of Ramalingam and Choudeswari Amman in the Choudeswari Amman Temple Devasthanam built by him and that the nineteen persons agreed to raise a fund and to put up the idol in the temple and according to the agreement that they set up the idols of Ramalingam and Choudeswari Amman and they agreed to purchase property for endowing the temple
and the document then went on to state that the nineteen persons should manage the temple from generation to generation
 Funds were collected by V and by the nineteen persons mentioned in the document they built the temple installed the idols in it and col lected funds for the upkeep of the temple and managed the temple under the deed of trust
It was held by the Madras High Court that the deed of trust conferred the hereditary right to the trusteeship upon V and the nineteen Chettithankars
At page 461 of the Report the High Court stated as follows  If persons invite subscriptions on a representation that they would devote the subscriptions so collected to a particular purpose and they divert the subscriptions to some other purpose the subscribers have to object to the funds being diverted to other purposes than those for which they were collected
But so long as the subscribers do not object to the person or persons collecting subscriptions for building or endowing any particular institution the person or persons so building or and endowing it have the right to provide for its management for all time to come
There is nothing in the evidence to show that the persons who gave subscriptions gave them on the understanding that the founders should not have the hereditary right of management
All that appears from exhibit A is that subscriptions were collected funds were raised a temple was built and idols were installed and the management was in the hands of Venkatarama Chetti and others and all of them
 As we have already stated the appellants have failed to prove that all the contributories were the joint founders of the trust and that they were all in turns entitled to management in proportion to the amounts that they had contributed
On the other hand the evidence makes it quite clear that the contributories agreed to leave the management of the trust solely in the hands of the senior Chockalingam and subsequently of defendant No 2
We are accordingly of the opinion that Mr N C Chatterjee has been unable to make good his argument on this aspect of the case
1 904 We proceed to consider the next question arising in this appeal viz whether the plaintiffs are entitled to ask for the settlement of a scheme even on the assumption that they were not co founders of the trust
The parties in this case have proceeded on the footing that the trust is a private trust but the authorities establish that even in the case of a private trust a suit can be filed for the removal of the trustee or for settlement of a scheme for the purpose of effectively carrying out the objects of the trust
If there is a breach of trust or mismanagement on the part of the trustee a suit can be brought in a civil court by any person interested for the removal of the trustee and for the proper administration of the endowment See for example Pramatha Nath Mullick s case1 and Manohar Mookerjee vs Peary Mohan2
There are also authorities to the effect that a Civil Court may frame a scheme in the case of a private endowment at the instance of the parties interested
The question has been discussed by the Calcutta High Court in Bimal Krishna s case3 and it was held in that case that a scheme for the administration of a private endowment can be framed by a Civil Court
Mookerjee J observed in that case that in India the Crown is the constitutional protector of all infants and as the deity occupies in law the position of an infant the shebaits who represent the deity are entitled to seek the assistance of the Court in case of mismanagement fraud or maladministration on the part of the shebait and to have a proper scheme for management framed for the administration of the private trust
In Pramatha Nath Mullick s1 case to which we have already made reference the Judicial Committee itself directed the framing of a scheme in the case of a private endowment and the case was expressly remanded to the trial court for that purpose
In the present case the appellants being contributors to the trust are interested in the proper administration of the trust and in our opinion they have a sufficient right to bring a suit in a Civil Court in case there is mismanagement or breach of trust on the part of the managing trustee and for framing of a scheme
But the question in the present appeal is whether the appellants have made out any grounds for framing of a scheme or for the removal of the second defendant from the management of the trust
It was alleged by the appellants in the plaints that the trust had been mismanaged by the senior Chockalingam and by his grandson 2nd defendant and both have been guilty of breach of trust
The main charge levelled against defendant No 2 was the nonperformance of the pujas and the closing down of the Thevara Patasala and the feeding of the pupils
The Subordinate Judge has examined the evidence dealing with the charge and found that it 1 52 IA 245
2 90 5 was not established
The High Court upon analysis of the evidence has reached the same conclusion
It was also alleged by the appellants that Account Books Exs
A 9 and A 10 have been fabricated by defendant No 2 but the Subordinate Judge and the High Court both held that the allegation was not true
Certain other charges were also levelled by the plaintiffs against defendant No 2 and senior Chockalingam but the High Court as well as the Subordinate Judge found that these charges were not substantiated
The question whether defendant No 2 or the senior Chockalingam was guilty of breach of trust or of acts of mismanagement is a question of fact and in view of the concurrent finding of both the lower courts on this question we are of opinion that no ground has been made out on behalf of the appellants for framing of a scheme or for removal of defendant No 2 from the office of the managing trustee
It follows that the suit brought by the appellants has been rightly dismissed
For these reasons we hold that the judgment of the High Court dated April 4 1961 in Appeal No 99 of 1957 is correct and this appeal must be dismissed with costs
RKPS Appeal dismissed
CI68 16 1 69 2500 GIPF


Summary:
The appellants filed a suit praying for the settlement of a scheme in respect of a trust and for an account of the management of the trust by C and for certain incidental reliefs
Their case was that the trust was a joint foundation made on November 12
1919 by the ancestors of various parties to the suit and the first respondent s late father C that it was founded for conducting certain special and ordinary Pujas in the Mutt and for the feeding of the pupils
It was alleged that at the time of the foundation C contributed Rs 25000 and four others contributed Rs 6250 each and the joint founders had at the time of foundation appointed C who was the largest contributor as the Manager and executive trustee
On November 27 1943 C had nominated the second respondent his grandson as the executive trustee
Various allegations of mismanagement of the trust were made against the second respondent claiming that he had stopped the Pujas and various other activities for which the trust was created
The Trial Court dismissed the suit on the finding that C was the sole founder of the trust who had conducted it with the money contributed by himself and other persons and that at the time of the foundation the other four contributors did not reserve for themselves any right in the trusteeship of the Mutt
It also held that the charges of mismanagement were unfounded and no case was made out for framing a scheme
An appeal to the High Court was dismissed
On appeal to this Court
HELD  i The High Court was right in finding the appellants had failed to establish that they were joint founders of the trust and that they were entitled in turns to management in proportion to their contribution
It is not a correct proposition of law to state that every donor contributing at the time of foundation of a trust becomes a founder of the trust
It may be that in a particular case all the contributors of a trust fund become the founders of the trust itself but the question when a contributor would become in law a joint founder of the trust would depend not merely upon the fact of his contribution but also upon the surrounding circumstances proved in the particular case and the subsequent conduct of the par ties
901 H In the Matter of the Endowed Schools Act 1869 and In the Matter of the St Leonard Shoreditch Parochial Schools 10 AC 304 and Settikara Venkatarama Chettiar vs 0
P Damodaram Chettiar referred to
Even in the case of a private trust a suit can be filed for the removal of the trustee or for settlement of a scheme for the purpose of effectively carrying out the objects of the trust
If there is a breach of trust or mismanagement on the part of the trustee a suit can be brought in a civil court by any person interested for the removal of the trustee and for the 898 proper administration of the endowment
In the present case the appellants being contributors to the trust were interested in the proper administration of the trust and had a sufficient right to bring a suit in case there was mismanagement or breach of trust on the part of the managing trustee and for framing of a scheme
However in view of the concurrent finding of both the lower Courts that the allegations of breach of trust or mismanagement had not been established no ground had been made out on behalf of the appellants for framing of a scheme or for the removal of the second respondent
904 A C Pramatha Nath Mullick s case 52 IA 245 Manohar Mookerjee vs Peary Mohan  and Bimal Krishna s case  referred to