JUDGMENT
Sir John Wallis, C. J. — In S. A. No. 669 of 1919. In this case certain lands appear to have been left to the defendant under his father's will upon trust to apply the income for the neivethiem of the temple of which the plaintiff is the trustee. The result therefore was the creation of a special trust for the performance of a particular service in the temple. Such subordinate trusts are very common in Southern India and are known as Kattalais and the trustees as Kattalaidars. The defendant having failed to perform the term of the trust the plaintiff who was the principal trustee sued him in Small Cause Suit No. 296 of 1911 on the file of the Court of the District Munsif of Valangimam for money alleged to be due to the temple under the trust. If the point had been taken the suit would probably have teen held to be beyond the jurisdiction of the Small Causes Court, but the case was settled and the defendant filed a statement in Court undertaking to give one small measure of rice every day to the Gurukkal of the temple for the neivethiam and to be present himself when ceremony was performed. This was duly recorded and the suit withdrawn. The defendant did not carry out his undertaking and the plaintiff filed the present plaint against him in the Small Causes Court in Small Cause Suit No. 1709 of 1914 in the same Court against him. The District Munsif decreed the suit, holding that the undertaking given by the defendant amounted to a contract with the plaintiff and that the suit was a suit for damages for breach of contract and so within the jurisdiction of the Small Causes Court. His decree was set aside by Srinivasa Aiyangar, J., in Civil Revision Petition No. 347 of 1915 on the ground that the Small Causes Court had no jurisdiction as Exhibit A, the undertaking, already referred to, did not amount to a contract between the plaintiff and the defendant, but merely related to the ascertainment of the quantity of paddy which was payable on account of the trust. The learned Judge was of opinion that the suit must be regarded as a suit by the general trustee of a temple to enforce the obligation of a subordinate trustee or Kattalaidar. He accordingly reversed the decree and directed the plaint to be returned to the plaintiff to be presented to the proper Court. It was accordingly filed in the present suit O. S. No. 206 of 1916. The District Munsif followed Srinivasa Aiyangar, J., in holding that the defendant's agreement had reference only to the manner in which the provision in the will of the defendant's father should be carried Out, but nevertheless decreed the plaintiff's suit on the ground that though the rice was to be given to the Gurukkal, the plaintiff as the trustee of the temple was entitled to sue, but the decree was reversed by the Subordinate Judge and the plaintiff appeals. I think the suit was rightly dismissed, because, as held by Srinivasa Aiyangar, J., it was really a suit by a general trustee of a temple to enforce the obligation of a subordinate trustee or Kattalaidar. Where there are several trustees of different properties vested in them respectively for the performance of various services in the temple, I do not think the main or general trustee has any right to sue otherwise than under Sect. 92, Civil Procedure Code, for the failure of one of the other trustees to perform his trust. If he had such a separate cause of action, I should not be disposed to construe Sect. 92, Civil Procedure Code, as taking it away from him, but I am not satisfied that he has any such right of action under the general law. As regards the contention that the defendants undertaking in the earlier suit amounted to a contract with the plaintiff, I agree with Srinivasa Aiyangar, J., that it did not, and even if I were of a different opinion, the matter would appear to be res judicata between the parties by reason of the judgment of Srinivasa Aiyangar, J., in which the plaintiff did not appeal. The second appeal fails and is dismissed with costs. Second Appeal No. 670 of 1919 follows.
Krishnan, J.—With very great respect for the opinion of the learned Chief Justice, I regret I am unable to concur in his view in this case. The plaintiff in this suit is the general trustee of a public temple in Kumbakonam Taluk. The defendant is the trustee of a kattalai or special trust in that temple for the performance of the daily naivethiam to the idol from the income of certain land endowed for the purpose by his deceased father who created the trust. It was defendant's duty as trustee to see the daily ceremony performed and to spend the money necessary for it. He having neglected to do so plaintiff sued him for the expenses of the ceremony in 1911; but that suit was compromised on the defendant agreeing with the plaintiff to give one measure of rice every day to the temple Gurukkal to perform the daily ceremony. See Ex. A. It is also stated in Ex. A that the defendant was to be present and to see to the performance of naivethiam by the Gurukkal. I therefore agree that in entering into this agreement defendant certainly acted as the trustee of the kattalai and not in his personal capacity.
Plaintiff's case is that the defendant committed default again and to prevent the ceremony from being stopped altogether he supplied as trustee or panchayat from the general temple funds the daily rice to the Gurukkal. He sues to recover Rs. 18-1-3 the price of rice so supplied from the defendant who was bound to give it under his contract.
The Subordinate Judge has dismissed his suit as barred by Sect. 92, Civil Procedure Code, though he has held that his claim was proved. It seems to me that in doing so, the Subordinate Judge has misapprenhended the nature of the suit. It is essentially a suit based on a contract against a trustee in his capacity as such at any rate in part. The contract is an essential part of the plaintiff's cause of action as stated in the plaint. Though defendant was to supply the rice to the Gurukkal, the contract was with the plaintiff and the failure to perform it therefore gave him a cause of action. The Gurukkal could not sue as he was a stranger to the contract. Plaintiff as the trustee of the temple where the naivethiam had to be performed to the presiding deity was interested and justified in spending money to keep up the ceremony and is therefore entitled as such trustee to be reimbursed and the amount claimed by him was, I think, properly due. It is not pleaded that the contract was invalid in any way and the suit should therefore, in my opinion, have been decreed.
The suit is, in my view, one for the enforcement of a contractual obligation and is not founded on any breach of trust by the defendant. Though the defendant was guilty of breach of trust in not getting the naivathiam performed daily, the failure to supply rice to the Gurukkal under the terms of Ex. A which is the basis of this suit would not in itself have amounted to a breach of trust, if the defendant had got the naivethiam performed otherwise for it was not a part of the original trust arrangement to give a measure of rice to the Gurukkal and get the ceremony performed by him. The suit seems to me therefore not to be based on any breach of trust but on contract. Nor is it a suit for the administration of the Kattalai and I am unable to see how it falls under Sect. 92 of the Code of Civil Procedure.
Moreover Sub-Sect. 2 of Sect. 92 of the Code of Civil Procedure which contains the clause that bars other suits applies only to cases where the relief claimed is one of those mentioned in Sub-Sect. 1. The relief claimed in the present suit is only for a sum of money and it does not seem to me to involve the taking of any trust accounts or the making of any enquiry regarding the trust. Cl. (d) of Sect. 92 which is the only clause which, it was argued, would apply to the present case does not, therefore, in my opinion, apply to it. That clause seems properly to apply only to the taking of trust accounts and to the making of enquiries as to trust properties. It has not been argued that any other clause applies. The present suit thus does not seem to me to fall within the scope of Sub-Sect. 2 as it is not for any of the reliefs mentioned in Sub-Sect. 1. In fact the suit is based on the infringement of an individual right and not of a public right and to such a suit the prohibition imposed by the section should not be applied, and the section should not, in my view, be so construed as to deprive individuals whose rights have been infringed of their remedy under the general law.
It is urged that the judgment of Srinivasa Ayyangar, J. at an earlier stage of this suit when it came up as Civil Revision Petition No. 347 of 1915 to the High Court precludes me from taking the view I am taking. I will take it that the finding of the learned Judge that the suit is not of a Small Cause nature is binding on us but I consider that my view is not in any way inconsistent with his finding. He held that the defendant “had not ceased to be a trustee for the purpose of seeing to the performance of that trust and that the suit was one by the general trustee of a temple to enforce the obligation of a subordinate trustee;” he did not however discuss the nature of that obligation, so far as I can see as apparently it was immaterial for his purpose. He then decided that the suit was not cognizable by the Small Causes Court. I accept that view. The contract evidenced by Ex. A was entered into by the defendant in his capacity as trustee and his liability under it is only as trustee. Though based on a contract the suit is one against a trustee for payment from trust funds of the money alleged to be payable for the performance of the trust ceremony, and may thus, I think, be considered to be a “suit relating to a trust” falling within Art. 18, Sch. II of the Provincial Small Causes Courts Act and therefore outside the jurisdiction of the Small Causes Court. I do not thinkt here is anything that the learned Judge says in his judgment that precludes me from holding that the obligation sought to be enforced in this suit is one based in part on contract.
Plaintiff may no doubt as any other person interested in the Kattalai bring a suit under Sect. 92 of the Code of Civil Procedure along with another so interested alleging breach of trust or the administration of the trust and for one or more of the reliefs mentioned in the section on complying with the conditions laid down in it. But in my opinion the present suit is not such a suit and I am unable to hold that Sect. 92 applies to it. It seems to me we cannot overlook the contract and other facts proved in the case, and the plaintiff's special position as the trustee and representative of the idol for whom the naivethiam is performed and treat him as having no higher rights than any ordinary worshipper. I am not satisfied that it is right to do so.
If the plaintiff has a cause of action as trustee to recover from the defendant the Rs. 18 and odd he is suing for,—and I think he has under his contract and probably also under Sect. 69 of the Indian Contract Act as making a payment in which he in his capacity as trustee in which capacity he is suing was interested and which the defendant was bound by law to make, he has a right as such trustee to enforce it under the general law and he need not have recourse to a suit under Sect. 92 of the Code of Civil Procedure for the purpose, merely because defendant happens to be a trustee.
I am therefore of opinion that the Appeal should be allowed with costs; but as the learned Chief Justice takes the view that the Appeal must be dismissed with costs that view must prevail S.A No. 670 of 1919 follows.
Messrs. C. V. Ananthakrishna Aiyar and K.P Ramakrishna Aiyar for the Appellant.
Messrs. T. Rangachariar and S.T Srinivasagopala Chariar for the Respondent.
JUDGMENT
In this case whatever view we might be inclined to take of the matter if it came before us as res Integra we are bound by the decision of Srinivasa Aiyangar, J. in Civil Revision Petition No. 347 of 1915 which was not appealed against. He held that Ex. A did not evidence an enforceable contract, and that the suit must be treated as one “by the general trustee of a temple to enforce the obligation of a Subordinate trustee or Kattalaidar.”
The only question then is whether, viewed in this light, the suit is maintainable: and we are forced to the conclusion that it is not. The relief claimed is the recovery of the balance of amount due by defendant under the terms of his trust, and not paid by him to the Gurukkal of the temple. (The breach of trust is denied). If the relief is claimed as the amount of misappropriation, the amount is not ascertained and would have to be determined by enquiry in the suit; and this brings the case within the mischief of Sect. 92 of the Civil Procedure Code, Cl. (d), and the suit is bad for want of the sanction required by that section. If it be sought to recover it by way of damages, then the suit falls under Sect. 14 of the Religious Endowments Act, and is bad for want of the sanction required by Sect. 18 of the same. The only other ground on which it could be maintained is that furnished by Sect. 69 or 70 of the Contract Act; and this appears to have been given up in the District Munsif's Court, vide paragraph 6 of his judgment.
It was argued that the suit, being one by a temple trustee, was exempt from the restrictions imposed by Sect. 92 of the Code of Civil Procedure and Sect. 18 of the Religious Endowments Act; and reliance was placed on Nellaiyappa Pillai v. Thangama Nachiar(1). This judgment was pronounced under the old Code of Civil Procedure in which no such provision as Cl. (2) of Sect. 92 o the present Code is found: and it has been held in a recent case of this Court Subramania Pillai v. Krishnaswamy Somayajiar(2) that the terms of Sect. 92 of the Code of Civil Procedure apply to a suit by trustees; there is no reason why such a suit should be held to be exempted from its restrictive provisions. The same reasoning would apply to the provisions of the Religious Endowments Act.
We dismiss the Letters Patent Appeal with costs.
C.KAppeal dismissed.