ORDER
K.M. Natarajan, J.
1. The first defendant in O.S. No. 23 of 1978 on the file of the Subordinate Judge, Tirupattur, North Arcot District, has preferred this appeal challenging the legality and correctness of the decree passed in the said suit granting a decree in favour of the plaintiff for accounts.
2. The case of the first respondent/ plaintiff as disclosed from the plaint can be briefly stated as follows : The plaint schedule properties and other properties originally belonged to one Chinna Chettiar. The plaintiff is the grandson of the said Chinna Chettiar, he being the son of Annamalai Chettiar who is the son of the said Chinna Chettiar. Defendants 1 and 2 are the great great grandchildren of the said Chinna Chetfiar, being the grand sons respectively of Arumugha Chettiar, grand-son of Chinna Chettiar, ‘A’ Schedule appended in the plaint is the genealogy tree in respect of the relationship of the parties to the common ancestor, Chinna Chettiar. In a registered partition deed dated 24-1-1892 between the plaintiffs father Annamalai Chettiar and his brother’s grand-sons, namely, Ayyakannu alias Chinnasamy Chetty, Govindaraju Chetty and Rathnavelu Chettiar, the suit properties which are items 34 to 37, were impressed with the character of trust properties and they were dedicated for the purpose of providing accommodation for travellers, for affording facilities for performance of marriages and rearing and maintaining a nandavanam to provide flowers for the use of temples. The income from the properties were to be utilised for the upkeep and maintenance of the building in good and proper repair. The items so left in common for the charities are set out in schedule B. According to the plaintiff, the administration of the trust was entrusted with the aforesaid Ayyakannu alias Chinnasamy Chettiar in the first instance and on his inability to carry out the trust, the management was to revert to Annamalai Chettiar, the father of the plaintiff. Ayyakannu alias Chinnaswami Chettiar died on 27-2-1933 leaving no male issue and Annamalai Chettiar pre-deceased him on 17-10-1899. At the time of death of Ayyakannu alias Chinnasami Chettiar in 1933, since Annamalai Chettiar who was the other person entitled to administer the trust as per the trust deed was dead, the plaintiff as the only son of the said Annamalai Chettiar became entitled to administer the trust as his sole legal representative, in the intent and spirit of it. Since the plaintiff was employed in a distant place, he orally permitted T. G. Annamalai Chettiar, his cousin’s grandson, who was a resident of Thirupathur, to be in charge of the trust temporarily and administer the trust in the spirit of the trust-deed. The said T. G. Annamalai Chettiar was accordingly in charge of the administration of the trust till his death on 15-9-1973. The defendants were helping the said T. G. Annamalai Chettiar in managing the trust.
3. After the death of T. G. Annamalai Chettiar, defendants 1 and 2 who are in no way entitled to administer the trust and use the properties, unlawfully entered into management of the trust properties taking advantage of their residence at Thirupathur and also the fact that the plaintiff was living away. It is stated that the defendants are mere trespassers and they have no right to be in possession of the properties and administer the trust. The plaintiff issued a notice dated 15-10-1977 calling upon the defendants to hand over possession of the trust properties to him. The defendants sent a reply on 2-11-1977 containing false allegations. It is further stated that the plaintiff finds that the defendants have unauthorisedly altered the building in item 2 of Schedule B making the same unsuitable for the purposes for which it was dedicated and converted it into three houses and the amounts earned are not spent for the trust, but appropriated to their personal use. Further, correct accounts are not maintained. The fully grown yielding tamarind trees, worth about thousand rupees, in item 1 of B Schedule, were also found cut. Hence, the plaintiff filed the suit to recover possession of the plaint schedule trust properties from the defendants and also calling upon them to account for the income and expenditure of the trust from 15-9-1973, the date of death of T. G. Annamalai Chettiar upto the handing over of the trust properties to the plaintiff.
4. The said suit was resisted by defendants 1 and 3 to 9. The second defendant died pending suit. In the written statement filed by the first defendant which was adopted by defendants 3 to 9, the allegations contained in the plaint are denied and they inter alia contended as follows:– They admitted the relationship of the parties set out in the plaint as well as the family partition dated 24-1-1892. They also admitted that items 34 to 37 in the partition deed were set apart for carrying out the charities as trust. However, the allegations regarding the purpose for which it has to be used and the mode of succession to the trust are denied. It is stated that after the death of Chinnasami Chettiar, his brother Rathnavelu Chettiar was the trustee and after him, his brother’s son Arumugha Chettiar was the trustee and after his death, his brother T. G. Annamalai Chettiar was the trustee till his death on 15-9-1973. The first defendant is now administering the trust and there was no necessity to obtain any permission from the plaintiff for the defendants to be the trustees. The plain tiff has no right in the trust. The first defendant is the lawful trustee and not a trespassers. The right of the plaintiff is confined to his inheritance under the partition deed dated 7-8-1893 and under the abovesaid partition deed, which was effected before the plaintiff was born, certain properties were allotted to Annamalai Chettiar. Annamalai Chettiar died in the year 1899 and the plaintiff succeeded only to the properties allotted to his father under the said partition deed and not anything more. It is further stated that the trust properties have been very much improved to augment the income of the trust income and that the plaintiff has no right to ask for accounting from the first defendant or any other defendant. Hence they prayed for dismissal of the suit.
5. In the additional written statement, it is averred that the plaintiff’s request to the Municipality to include his name as joint owner was rejected in the year 1921 and again in 1954 and 1955 and the plaintiff’s claim to the suit properties was denied. Since the plaintiff has not taken an step to establish his right for over the statutory period, his claim if any is barred by the law of limitation. It is further stated that the plaintiff’s father has repudiated the trust by including his share of the trust property as his private property in the family partition of the year 1893 and the plaintiff also repudiated the trust by claiming under the 1893 partition to have his name included as joint owner. Hence the plaintiff is, not qualified to be a trustee.
6. In the reply statement filed by the plaintiff, the allegations contained in the written statement were denied as follows : The allegation that the request of the plaintiff to the Municipality to include his name as joint owner was rejected is not correct. The defendant has suppressed other matters in the order of the Municipality. It is submitted that possession of the suit properties has not been denied as such by any one and anywhere. But, on the other hand, the plaintiffs right has been unequivocally acknowledged by the defendants’ predecessors and the defendants themselves. Hence the claim is not barred by the law of limitation. There was no repudiation whatsoever as alleged in para 8B of the additional written statement. The plaintiff too never repudiated the trust anywhere and at any time. The defendants have misconstrued the terms of the 1893 partition deed. The plaintiff is not in any way disqualified to be a trustee as alleged.
7. On the pleadings, the trial court framed as many as 11 issues and 2 additional issues. On the side of the plaintiff Ex.A-1 to A-19 were marked and the plaintiff was examined as P.W. 1, while on the side of the defendants, the first defendant was examined himself as D.W. 1 and Ex.B-1 to B-26 were marked.
8. The trial judge under issues 1, 2 and 4 held that the plaintiff is entitled to management of the trust properties in the event of infringement of the conditions given under Ex. A-1 partition deed and that the case of the defendants that the plaintiff has no right of management cannot be sustained. Under issues 3, 5, 6 and 7, it has been held that the right of the plaintiff to audit the accounts is implicit in the direction given to the trustee in Ex.A-1 partition deed that he should maintain proper accounts. Further, in the event of any misappropriation being discovered upon accounts being furnished, it is open to the plaintiff to claim management of the trust. It has also been held that the plaintiff has not been able to substantiate misappropriation and that only in the event of misappropriation, he is entitled to take up management and that the case of cutting and removal of tamarind trees is not substantiated by evidence. Under issues 10 and 12 it was held that the suit is not barred by limitation. Under issue No. 13, it was held that upon furnishing accounts, if the plaintiff is able to establish misappropriation and mismanagement, he is entitled to take up management. Under issues, 8, 9 and 11 it was held that the suit has been valued properly and proper court fee has been paid and that the defendants are liable to render accounts from 27-1-1975 and in the event of misappropriation and mismanagement being established upon furnishing such account, it is open to the plaintiff to move the court for placing him in management of the trust. Accordingly the suit was decreed and the parties were directed to bear their respective costs. Aggrieved by the same, the first defendant alone has preferred this appeal.
9. The learned counsel for the appellant, Mr. T. R. Rajagopalan mainly submitted that the learned Subordinate Judge having found that no mismanagement or misappropriation has been proved or established ought to have dismissed the suit and ought not to have passed a decree for rendition of accounts keeping the suit pending for an indefinite period and giving right to the plaintiff to seek recovery of possession in the event of any misappropriation being discovered upon the accounts being furnished or taken. The learned counsel vehemently argued that in view of the finding that the plaintiff is not entitled to recovery of possession from the date of suit, the mere fact that subsequently he is entitled to possession will not give him the right to ask for rendition of accounts. The learned counsel submitted that though the court has passed a decree as if the suit is filed by the plaintiff claiming himself to be a trustee, the suit is filed against the defendants for recovery of possession as trespassers. He would further submit that since the first defendant is dead subsequent to the filing of the suit, no decree can be passed against the legal representatives of the first defendant. It was submitted that the plaintiff has no right to ask for accounts and if he wants to inspect, he can do so. According to him, rendition of accounts is different from inspection of accounts. The learned counsel submitted that there cannot be any decree for accounts only without a decree for delivery of possession. He would submit that in a suit for recovery of possession, the court cannot pass a preliminary decree as if he is giving a right to the plaintiff to recovery of possession in the event of misappropriation or mismanagement is established. Lastly it was submitted by the learned counsel that in the face of the line of succession provided under the deed only for a certain period, the ordinary rule of succession is to be followed and that if it is applied, the plaintiff is not entitled to ask for rendition of accounts.
10. On the other hand, the learned counsel for the first respondent-plaintiff, Mr. R. S. Venkatachari, submitted that as per Ex. A-1 partition deed Chinnasami Chettiar has the right to manage the properties and his right is only as manager. In the instant case, the right of management has to work out only under Ex. A-1 and the ordinary rule of succession to the office of trustee-ship in the absence of line of succession and the decision rendered therein relied on by the learned counsel for appellants is not applicable to the facts of the case. As per the document admittedly the right of the family members of the plaintiff and the defendants to manage the trust and to inspect the document is mentioned. Along with his brother Shanmugham Chetty, the plaintiff herein is mentioned as one of the members entitled to manage the trust. The document is very clear and unambiguous. In the instant case, the trust is a private trust and only after discharge of the manager, the question of adverse possession comes. The trial court came to the conclusion that no proper account has been maintained and no accounts were produced before court. Even in the written statement it is not stated that the first defendant is maintaining any accounts. The case of misappropriation has been alleged in para 10 and it has been spoken to by P.W. 1. The plaintiff is not in any way interested in the trust. Excepting sending the notice, he does not know when the trees were cut and anything about the mismanagement. He would submit that it is not a suit for recovery of possession from trespasser but from the person who is mismanaging the trust. Since he is not managing the trust properly and maintaining proper accounts, it is not open to the first defendant to continue as trustee. The learned counsel vehemently argued that the first defendant failed to establish that he was maintaining proper accounts as per Ex.A-1. According to him, in view of S. 19 of the Trust Act, the first defendant is liable to account irrespective of any negligence proved on his part. He would state that unless the accounts are produced and the court is satisfied, the other relief of recovery of possession cannot be granted and the court below is perfectly legal and justified in granting a decree in the nature of preliminary decree. The learned counsel also drew the attention of this court to various decisions and submitted where individual rights are involved, the suit is outside the purview of S. 92, CPC.
11. Even though the plea regarding the applicability of S. 92, CPC to the suit and also regarding maintainability were not raised before the trial court, it was contended on behalf of the appellant that since the reliefs asked for are for rendition of accounts and for recovery of possession from the trustee in respect of public trust and those reliefs are enumerated in S. 92, CPC, the suit is not maintainable. On the other hand, the learned counsel for the first respondent, Mr. R. S. Venkatachari submitted that this is a case where the individual’s rights are involved and as such it is outside the scope of S. 92, CPC even though the reliefs of rendition of accounts and recovery of possession were prayed. In this connection, the learned counsel for the first respondent drew the attention of this court to the decision in Swami Parmatmanand Saraswati v. R. Tripathi . In para 10 of the said decision, it has been observed as follows :
“A suit under S. 92 is a suit of a special nature which pre-supposes the existence of a public trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. It, is therefore clear that if the allegation of breach of trust is not substantiated or that the plaintiff had not made out a case for any direction by the Court for proper administration of the trust, the very foundation of a suit under the section would fail; and, even if all the other ingredients of a suit under S. 92 are made out, if it is clear that the plaintiffs are not suing to vidicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of S. 92. (see Shanmukham v. Govlnda, AIR 1938 Madras 92, Tirumalai Devasthanams v. Krishnayya; AIR 1943 Madras 466 (FB); Sugra Bibi v. Hazi Kummu Mia and Mulla, Civil Procedure Code (13th ed), Vol. 1. p. 400). A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under the section. It is not every suit claiming the reliefs specified in the section that can be brought under the section but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights, and in deciding whether a suit falls within S. 92 a Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. That is the reason why trustees of public trust of a religious nature are precluded from suing under the section to vidicate their individual or personal rights. It is quite immaterial whether the trustees pray for a declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office of a trustee is asserted or denied and relief asked for on that basis, the suit falls outside S. 92.”
The learned counsel drew our attention to the Full Bench decision in Appanna Poricha v. Narasinga Poricha, AIR 1922 Madras 17 : (1922) ILR 45 Madras 113; Jaffer Kermani v. Hassan Kirmani ; Krishnamoorthy v. Krishnamachari (1976) 1 Mad U 204; Lakshminarayana v. Punnayya AIR 1927 Madras 820 and Dhirendra Singh v. Dhanai AIR 1983 All 216. In Appanna Poricha v. Narasinga Poricha AIR 1922 Madras 17 (FB) it has been held :
92 was intended to govern suits by the public or by the Advocate General, for the vindication of the rights of the public in charitable trusts i.e. to govern representative suit brought for the benefit of the public to enforce a public right in respect of an express or constructive trust and do not apply to suits brought by persons to remedy a particular infringement of their own individual right.”
AIR 1921 Madras 403 Distinguished.
“The correct principle is that S. 92 governs suits for vindication of the rights of the public in public charitable trusts and has no application to suits for the vindication of the rights of management by hereditary trustees or to disputes between such trustees inter se, as to their turns of management.”
In Lakshminarayana v. Punnaya AIR 1927 Madras 820 at page 823 it was held :
“The last question for consideration is whether the suit is bad for want of sanction under S. 92, Civil P.C. It is argued that the reliefs claimed in the plaint are those set out in S. 92 of the Code and that as no sanction of the Collector or the Advocate-General in writing has been obtained for the institution of the suit it ought to fail. In support of this view reference has been made to Narayan v. Vasudeo, AIR 1924 Bombay 518 and Nilkanth Devrao v. Ramkrishna Vithal AIR 1923 Bombay 67 : 46 Bom 101 ; but it has been decided by a Full Bench of this court (see Appanna Poricha v. Narasi Poricha, AIR 1922 Mad 17: ILR 45 Mad 13 (FB)) that when a suit is filed not for the purpose of vindicating any rights of the public in a public religious or charitable trust but has been filed only for the purpose of satisfying the personal or individual rights of the plaintiff as trustee, the suit is maintainable without the sanction referred to in S. 92 Civil P.C., though the relief claimed may be those that section. The present case comes clearly within the scope of the decision in Appanna Poricha v. Narasinga Poricha AIR 1922 Madras 17 : ILR 45 Mad 12 (FB) and is therefore not bad for want of sanction under S. 92, of the Code.”
In Dhirendra Singh v. Dhannai AIR 1983 All 216 it has been held (at p. 219 of AIR);
“In order to maintain a suit under S. 92 it must be shown that there exists a trust for public purposes of a charitable or religious nature; that there is a breach of such trust or that the direction of the Court is necessary for the administration of the trust and the reliefs claimed in the suit must be one or more of the reliefs mentioned in the section. Where any of these conditions is absent S. 92 would have no application to the suit. If the suit does not relate to a public trust but relates to private properties owned by an individual or to a private trust S. 92 would not apply.”
lying the ratio laid down in the above cases to the facts of this case, it is seen that the present suit is filed on the basis of the partition deed dated 24-1-1892 wherein the right of management has been given and now the relief if asked for on the basis of the said partition deed by the plaintiff for rendition of accounts and also for recovery of possession. The question is whether the plaintiff is entitled to recover management from the defendants. It is a dispute between two individuals and the suit is filed for vindication of the individual and private rights against the defendant in respect of the private family trust property.
12. The decision relied, on by the learned counsel for the appellant reported in Sugra Bibi v. Haji Kummu, is not at all helpful to the case of the appellant, as in the said case the reliefs claimed by the plaintiff were not reliefs for enforcing any private rights but reliefs for the removal of the defendant as trustee and for appointment of a new trustee in his place. The reliefs claimed were within clauses (a) and (b) of S. 92(1) and indicated that the suit was brought by the plaintiff not in an individual capacity but as representing all the beneficiaries of the Wakf Estate. Even in that decision, the principle laid down in Appanna v. Narasingha AIR 1992 Madras 17 (FB) and Tirumalai Tirupati Devasthanams Committee v. U. Krishnayya Shambhaga AIR 1943 Madras 466 (FB) were affirmed in para 9 of the judgment. It is to be noted that that was a suit brought not to vindicate or to establish a right of the public institution, but to remedy an infringement of an individual right or to vindicate the private right of the plaintiff. Referring to the decision of the Full Bench, it was observed by the Supreme Court as follows fat :–
“Applying the principle laid down in these authorities, we are of opinion that in the present case the suit brought by the appellant must be treated as a suit brought by her in a representative capacity on behalf of all the beneficiaries of the Wakf. As we have already stated, the Wakf created by Haji Elahi Bux was a Wakf created for a public purpose of charitable or religious nature. The reliefs claimed by the appellant in the suit are not reliefs for enforcing any private rights but reliefs for the removal of the defendant as trustee and for appointment of a new trustee in his place. The reliefs asked for by the appellant fall within cls. (a) and (b) of S. 92(1) of the Civil Procedure Code and these reliefs claimed by the appellant indicate that the suit was brought by the appellant not in an individual capacity but as representing all the beneficiaries of the Wakf estate. We are accordingly of the opinion that the suit falls within the purview of the provisions of S. 92. Civil Procedure Code and in the absence of the consent in writing of the Advocate General the suit is not maintainable.”
The said decision is not at all helpful to the case of the appellant in this appeal as this suit is filed by the trustee by virtue of the family partition deed against the defendants who are admittedly new acting as trustees and managing the trust, for rendition of accounts and for recovery of management on the basis of the said partition deed even though the beneficiaries under the trust are the public. Hence, we have no hesitation in holding that the suit is certainly maintainable and it is not hit by S. 92, C.P.C.
13. In this connection, it is also relevant to note the decision in Krishnamorthy v. Krishnamachari (1976) 1 Mad LJ 204, where at page 215 it was held :
“One objection to the maintainability of the suit is that this is a suit for rejecting accounts in respect of a trust created for public purposes of a charitable or a religious nature, and the suit, is, therefore, barred under S. 92 of the Code of Civil Procedure, for want of the written consent of the Advocate-General. A Full Bench of this High Court in Appanna Porieha v. Narasinga Poricha AIR 1922 Madras 17 has held that a suit by a trustee of a public charitable or religious trust against a co-trustee for accounts docs not fall within S. 92 of the Code of Civil Procedure and may be brought without the consent of the Advocate-General. As explained in that ruling, the words “directing accounts and enquiries” in clause (1)(d) of S. 92 of the Code of Civil Procedure, should be confined to suits by the Advocate-General or by two or more persons with his consent against all the trustees for an account of their management, and not to suits filed by one or more trustees against the others, as each trustee has a right to call upon the other to account to him for trust funds he has received, even though the other trustee commits no breach of trust. Further, in this case, the suit is filed not even against the co-trustees, but is filed by the plaintiffs, who are the trustees of the suit trust for recovery of possession of the trust properties from defendants 1 to 4, who, we have already held, are merely in the position of trustees dc son tort. The suit is, therefore, clearly outside the mischief of S. 92 of the Code of Civil Procedure.”
14. The next question to be considered is, whether the plaintiff is entitled to the relief of rendition of accounts and whether the finding of the trial court in this regard is sustainable. Certain facts which are not in dispute have to be stated for appreciating the respective contentions. The trust properties admittedly belonged to one Chinna Chettiar, the common ancestor of the plaintiff and the defendants. He was succeeded by Annamalai Chettiar, father of the plaintiff, and Sami Chettiar. Sami Chettiar was succeeded by his son Anmugha Chettiar, who was also succeeded by his three sons Ayyakannnu alias Chinnasmi Chettiar, Govindaraju Chettiar and Rathnavelu Chettiar. The plaintiff’s father Annamalai Chettiar, and the three sons of Arumugha Chattiar, namely, Ayyakannu alias Chinnasami Chettiar, Govindaraju Chettiar and Rathnavelu Chettiar entered into a registered partition deed dated 24-1-1892, under Ex.A-1. As per the terms of the said deed, out of the 37 items belonging to the family, items 1 to 33 have been equally divided between Annamalai Chettiar and the sons of Arumugha Chettiar In respect of items 34 to 37, a trust was being created under the said document. In respect of management of the trust properties, it is provided in the said partition deed that it should be left with Ayyakannu alias Chinnasami Chettiar and that he should maintain proper accounts. If he failed to carry out the charities properly, Annamalai Chettiar, father of the plaintiff, is entitled to take over the management and carry out the charities. Admittedly, during the lifetime of Ayyakannu alias Chinnasami Chettiar there was no dispute as the manner in which he carried out charities. The chatram which was built by the original ancestor Chinna Chettiar about 80 years ago as per the stone inscription embedded in item No. 34, was improved during the lifetime of Ayyakunnu alias Chinnasami Chettiar who maintained accounts properly. Ex.B-24 accounts arc for the years between 1892 and 1897. Admittedly, he was succeeded by Rathnavel Chettiar. During his period of administration, he got the house-building repaired as is evidenced by Ex.B-6 which is the application for permission and F.x.B-7 is the licence issued by the municipality on 26-9-1933 for carrying out the repairs. He was succeeded by T.G. Arumugham Chettiar, the eldest son of Govindaraj Chettiar. During his period of administration of the trust; he constructed a water tank and it is evidenced by Ex.B-9 which is the proceedings issued by the Commissioner of Tiruppattur Municipality, granting permission to T. G. Arumugham Chettiar for construction of water tank. Ex.B-10 is another permission granted by theTiruppattur Municipality in his favour dated 2-12-1948 for constructing a water tub. Ex. B-11 is the permission granted by the Municipality to effect repairs to the buildings, on 1-2-1950. As per fix. B-12 Arumugham Chettiar constructed a building after obtaining the necessary licence from the municipality. Ex. B-13 and B-22 establish that during the period of management, T. G. Arumugham Chettiar installed electricity to the building and also purport after obtaining necessary permission from the Municipality. Ex.B-16, B-l7 and B-19 to B-21 notices issued by the municipality in respect of encroachment of a shop building and for payment of property tax, also probabilise that it was T. G. Arumugham Chettiar, elder brother of Annamalai Chettiar, was in management till his death. After his death, his brother Annamalai Chettiar assumed the administration and he was acting as trustee till his death on 15-9-1973. The contention of the first respondent/ plaintiff is that T. G. Annamalai Chettiar was acting as trustee only upon the permission granted by him and he undertook to vacate the office of trustee at the option of the plaintiff. There is no convincing evidence in support of the case of the plaintiff. On the other hand, the said plea is falsified by the fact that he was not on talking terms with Annamalai Chcttiar during the relevant period. The court below rightly rejected the case of the plaintiff in this regard.
15. But, as regards the right of the plaintiff to ask for rendition of accounts and the plaintiff’s right to take up management in the event of any infringement of the condition of management, it is seen that it is clearly laid down in Ex.A-1, partition deed, that Ayyakannu alias Chinnasami Chettiar is to take possession of the trust properties and manage the properties which are items 34 to 37 which were undivided and he has to collect the income and spend for the charities and improve the same and maintain correct accounts. It is also laid down that he should not utilise the income for his personal benefit and if he acts contrary to the object of the trust and the conditions laid down in the partition deed, Annamalai Chettiar is entitled to cancel his management and to obtain possession and manage the same. If he also fails to maintain the trust properly any member of the family is entitled to recover possession and maintain the trust. The right of other members of the family to ask for accounts and possession of the trust properties is admitted by Chinnasami Chettiar himself in his statement Ex.A-10 dated 22-1-1924 before the Tahsildar Thiruppattur, wherein he has admitted that at the time of partition, he was appointed as manager as per Ex.A-1 partition deed in respect of item 34 comprised in Survey No. 213 (nandavanam) and other items which were set apart as trust for carrying out charities. He has categorically stated that he and the heirs of Annamalai Chettiar are entitled to the said properties and they have got a right to audit the accounts in respect of the administration of the trust. He also mentioned the names of 10 persons who are entitled to the said right and the plaintiff is one such person. The plaintiff issued Ex.B-1 notice dated 7-3-1954 calling upon T. G. Annamali Chettiar to furnish accounts. In the reply dated 15-3-1954, which is marked as Ex.B-2, Annamalai Chettiar has clearly stated that the plaintiff is always at liberty to inspect the accounts which has been regularly and properly kept from the beginning upto date, while denying the allegations for change of management. He would also say that the properties have been considerably improved and maintained. Thereafter, the plaintiff issued another notice Ex.B-3 dated 14-6-1955 calling upon Annamalai Chettiar to fix a time and place for inspecting the accounts. In reply to the same, Annamalai Chettiar issued Ex.B-4 notice dated 27-6-1955 denying his right of inspection. In Ex.B-4 reply notice, the right of the plaintiff to take over management in the event of infringement of specific condition is also disclosed and the plaintiff was asked to point out any specific instance of mismanagement contrary to the terms of management so as to enable him to correct himself. From the averments stated in the notice and the reply given by the defendant, the right of the plaintiff to ask for accounts and to take over management in the event of infringement of any condition of the management laid down in Ext.A-1 is clearly established. It is only on the basis of that, the lower court came to the conclusion that the plaintiff is entitled to take over the management in the event of any violation of the conditions of the trust. Now, as regards the right of the plaintiff to ask for accounts, it is seen from the fact that there is a direction to maintain proper accounts by the person who is in management and if he fails to do so and acts contrary to the terms of the partition deed, the other members of the family are entitled to take management. It cannot be disputed that the person who is in management is bound to render proper accounts to the other party in the trust. In this regard, it is to be noted that in Ex.A-10 which is the statement dated 22-1-1924 given by the then trustee Chinnasami Chettiar, who was a party to Ex.A-1, has categorically stated that the heirs of Annamalai Chettiar and his successors are entitled to scrutinise the accounts in respect of the administration of the trust. It is clear from Ex.A-10 that the right of the plaintiff to ask for the accounts of Chinnasami Chettiar, the original trustee himself is recognised. As already stated, this right is implicit in the direction given in the partition deed that the person in management shall maintain proper accounts and that proper accounts should be rendered to the other parties interested in the trust. The maintaining of proper accounts itself is only for the purpose of enabling the other persons interested in the trust to find out whether the trustee is maintaining the trust and its funds properly. It is significant to note that even in the very reply notice issued by defendants 1 and 2 and Annamalai Chettiar, the right of the plaintiff to ask for accounts and also the replacement of the management is not disputed. On the other hand, it is only stated that the management of the properties in the notice were left in the hands of the ancestors of defendants 1 and 2 and Annamalai Chettiar and that it is continued by them. It is further stated that the management is liable to be replaced only on the contingencies in the partition deed of 1892 and such contingencies have not at all arisen and as such there is absolutely no justification, much less any need for the change in the management. It is further stated that the plaintiff is always at liberty to inspect the accounts which has been regularly and properly kept from the beginning up to date. Thus, it is clear that the main dispute involved in the suit is only in respect of the management of the properties entrusted to defendants 1 and 2 by virtue of the partition deed Ex.A-1. As already stated it is provided under Ex. A-1 that any one of the members of the family is entitled to apply for recovery of possession if there is mismanagement of the properties and to manage the trust himself. Further, the person who is in management is bound to maintain proper accounts and he should not utilise the income for his personal benefits and if he acts contrary to the same, he is liable to be removed from the management and also ousted from the possession of of the properties. That the plaintiff is one of the members of the family and he is entitled to ask for rendition of accounts is clearly made out in view of the terms of Ex.A-1, the statement Ex.A-10 and the notices Ex.B-1 to B-4. The learned counsel for the appellant mainly contended that in the instant case the relief for recovery of possession prayed for in the plaint has not been granted and as such, the court ought not to have granted the rendition of accounts. It is to be noted that there is a finding of the trial court on the evidence that though the first defendant claimed to be maintaining accounts, he has not produced any such accounts. Further, the first defendants also admitted that he is collecting Rs. 235/- every month as rent. Further he has let out a vacant portion to Anna Transport Corporation, He has also admitted that the flowers from Nandavanam are being distributed to temples. But, it appears that no proper account has been maintained. While holding so, the trial court has rightly observed that on furnishing such accounts, in the event of any misappropriation is discovered, it is open to the plaintiff to claim management of the trust as per the terms of Ex.A-1. The case of the plaintiff that T. G. Annamalai Chettiar was acting as trustee only upon the permission granted by him and that he had undertaken to vacate the office at the option of the plaintiff is not established by any acceptable evidence.
On the other hand, from the various circumstances the trial court came to the correct conclusion that the plea of the plaintiff cannot be true, as on his own showing he was not on talking terms with annamalai Chettiar. In the very notice Ex. B-1 calling upon Annamalai Chettiar to furnish accounts, he has not whispered about the alleged permission. That the first defendant is in management of the property by virtue of the partition deed as stated in the written statement is not seriously disputed. The question of succession to the office of trusteeship does not arise. In the instant case, as provided under Ex. A-1 partition deed, if the person is in actual management fails to make proper accounts and utilises the income for his own use, any member of the family is entitled to ask for his removal and seek for management and recovery of possession. The lower court recognised that right. The plaintiff has made out such case by acceptable documentary and oral evidence. The first defendant admitted that the management of the properties was left in the hands of the first defendant and his predecessors. As such, it cannot be said that the relief granted by the court below is not sustainable. As rightly contended by the learned counsel for the first respondent, Mr. R. S. Venkatachari, even as per S. 19 of the Indian Trusts Act, 1882, a trustee is bound to keep clear and accurate accounts of the trust property and he is bound to furnish the beneficiary with full and accurate information as to the amount and state of the trust property at all reasonable times. In V.L.N.S. Temple v. I. Pattabhirami , it was observed :
“It is common place that no trustee can get a discharge unless he renders accounts of his management. This liability is irrespective of any question of negligence or wilful default.”
Therefore, it is clear that irrespective of any negligence or wilful default, a trustee is hound to render account of his management. In the instant case, the trust in question is not a public one; but it is only a family trust, and even otherwise, as already stated, it is only to vindicate the individual right of management of the trust in respect of the common properties which were set apart for the trust, the plaintiff has come forward with the relief. The learned counsel for the first respondent submitted that in a case of this nature, the decree granting the relief of rendition of accounts is only in the nature of a preliminary decree, and on taking accounts, the plain tiff is at liberty to apply for recovery of possession. In this connection, the learned counsel drew the attention of this court to the decision in Srinivasa Moorthy v. Venkata Varada Aiyangar (1911) ILR (34) Mad 257 (PC) which arose out of an appeal from this court. That was a case where the suit was filed on the original side of this court by three of the executors and trustees of a will against the fourth executor and trustee, who was the son of the testator, for removal of the defendant from his office and for administration of the estate by the Court. On 11th October, 1904, it was ordered that the surviving plaintiff and the defendant should be removed from their office as executors and trustees under the will and directed the usual accounts to be taken with liberty for all the beneficiaries to come in and prove their claims. On 16th March, 1905, the Court made a final decree appointing a receiver and directing certain payments in accordance with the result of the accounts which had been taken. On appeal, the High Court dismissed both the appeals. The defendant appealed against the decree to His Majesty in Council. The Privy Council confirmed the same. It is not a case of recovering mesne profits from a trespasser, as only in such case he is entitled to recovery of possession. Such is not the case here. The contention of the learned counsel for the appellant that in this case the relief of rendition of accounts cannot be granted without granting the relief of possession is not sustainable. This is a case where the right of management of the trust is involved. As per the terms of the partition deed, the management of the trust was entrusted to a member of the family. As per condition in the partition deed, the person who is in management is bound to maintain proper account and he should not utilise the amount for his family benefits and if any member mismanaged the trust and misappropriated the funds, the other members of the family are entitled to recover possession and management of the trust after the accounts are furnished.
16. As far as the question of limitation is concerned, it is seen in the instant case that the trustee is in management by virtue of the terms of Ex.A-1 partition deed and it cannot be said that the plaintiff was excluded. It cannot also be said that there was any case of denial of the plaintiff’s right of management or any case of ouster. On the other hand, in the case of mismanagement or misappropriation, defendants 3 to 5 who are the legal representatives of the second defendant must be deemed to be legal representatives de son tort. The learned counsel for the appellant cited the decision in Venkataramanujam v. Parthasarathi (1976) 1 Mad LJ 140. That was a case where the plaintiff claimed in 1949 that he was entitled to joint possession and management of certain trust properties along with the first defendant and that he would enforce his rights thereto without any further reference. However, he filed a suit only in 1966. It was held on appeal :
“It being clear that the trustees in management had even long before 1949, taken possession of the office to the exclusion of the plaintiff virtually ousting him and been confirmed in possession for well over the statutory period and the plaintiff not having filed the suit within 12 years from the date when the defendant took possession adversely to him, the suit was barred by limitation under Art. 107, Art. 58 is only a residuary Article in Part III of the Limitation Act.”
The said decision is not helpful to the case of the appellant, as in the instant case, the plaintiff has exercised his right under the partition deed Ex.A-1 by demanding accounts. It is needless to state that even if a third party takes administration of the trust property, he becomes trustee de son tort and he is bound to render account and limitation will not run in his favour. In the instant case, the ousting of the defendant from management arises only after discovering from the accounts to be furnished by the defendant that there has been misappropriation and mismanagement and then only he is liable to be ousted. Now the suit is filed only for rendition of accounts of the trust and the court below has only granted the relief of rendition of accounts. It was further held that in the event of any misappropriation or mismanagement is established on furnishing accounts, the plaintiff is at liberty to move the court for placing him in management of the trust and recovery of possession. Hence, the finding of trial Judge that the suit is within time is unassailable and we uphold the same. For all these reasons, we arc of the view that the appeal is liable to be dismissed.
17. In the result, the appeal fails and stands dismissed. However, in the circumstances of the case, each party is directed to bear their respective costs.
18. Appeal dismissed.