Case: Kt. N. Rm. Thenappa Chettiar &amp; Ors Vs. N. S. Kr. Karuppan Chettiar &amp; Ors

of the Report the (Mad LJ) = (at p. 1152 of AIR) 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 Ex. 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." 5. 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. 6. We proceed to consider the next question arising in the appeal, viz., whether the plaintiffs are entitled to ask for the settlement of a scheme even on the assumption that they were not cofounders of the trust.The parties in the 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 Mullicks case, 52 Ind App 245 = (AIR 1925 PC 139 ) and Manohar Mookerjee v. Peary Mohan, 24 Cal WN 478 = (AIR 1920 Cal 210) ).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 Krishnas case, 41 Cal WN 728 = (AIR 1937 Cal 338 ) 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 Mullicks case, 52 Ind App 245 = (AIR 1925 PC 139 ) 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 courts 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 7. 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 plaint that the trust had been mismanaged by the senior Chockalingam and by his grand-son, 2nd defendant and both have been guilty of breach of trust. The main charge levelled against defendant No 2 was the non-performance 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. 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 case6. We proceed to consider the next question arising in the appeal, viz., whether the plaintiffs are entitled to ask for the settlement of a scheme even on the assumption that they were not cofounders of thee parties in the 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, for example, Pramatha Nath Mullicks case, 52 Ind App 245 = (AIR 1925 PC 139  ) and Manohar Mookerjee v. Peary Mohan, 24 Cal WN 478 = (AIR 1920 Cal 210) ).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 Krishnas case, 41 Cal WN 728 = (AIR 1937 Cal 338  ) 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 Mullicks case, 52 Ind App 245 = (AIR 1925 PC 139  ) 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 courts 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 scheme7. 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 plaint that the trust had been mismanaged by the senior Chockalingam and by his, 2nd defendant and both have been guilty of breach of trust. The main charge levelled against defendant No 2 was thee 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 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.9 and0 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.