JUDGMENT

1. This appeal relates to a claim made by an erstwhile trustee to recover from trust property a sum of Rs. 4,000 alleged to have been lent from her private resources and interest.

2. The villages of Sirukovangudi and Pudupatnam in the Tanjore District were left in trust by the Will of one Agrisastri for the performance of certain charities, and the plaintiff, who now appeals, and the second, third and fourth defendants were the trustees appointed under the Will to manage the trust. The testator dial about February 1897 and in 1903, owing to the mismanagement of the trustees, Government took over the management of the trust, and under the provisions of Regulation VII of 1817 invested the Taluk Board of Mayavaram (1st defendant) with the trusteeship. The existing trustees were removed on September 3rd, 1903, and by the Taluk Board's proceeding dated October 22nd, 1903, the second defendant a brother of plaintiff and a High Court Vakil were, subject to certain conditions, appointed solo managers. These proceedings (Exhibit XIV) purported to appoint the second defendant sole trustee as well as sole manager. It is, of course, clear that the Taluk Board had no power to delegate their powers as trustees to the second defendant and we were told in the course of the argument that the order appointing the second defendant as sole trustee has been set aside. The second defendant seems to have anticipated his appointment, for on August 30th we find him requesting the Taluk Board in a letter marked Exhibit J for sanction to raise a loan of at least Rs. 3,500 for carrying on cultivation for the current fasli, owing to the store of seed paddy in the trust villages being in the possession and at the disposal of the plaintiff and thus not available for the cultivation expenses of that year. On perusal of a subsequent letter dated the 23rd October which the Taluk Board have not produced and have apparently not had notice to produce the raising of a loan of Rs. 4,000 for meeting the expenses in connection with the charities and estate was sanctioned, and at the same time the name of one of the members of the Taluk Board, was suggested as being a person likely to be willing to accommodate the estate (vide Exhibit N) The suggestion was evidently not adopted as the periodical account (Exhibit C) submitted by the manager for the period between July 1903 and March 1904 shows a loan of Rs. 4,000 raised, from Neelayathakshi Ammal (plaintiff) by purchase of seed and 'thasukooly' paddy (i.e., paddy for cultivation expenses) from her at 9 per cent interest. Reading Exhibit J and Exhibit C together it looks as though the plaintiff's objection was overcome and the manager (second defendant) was allowed by her to make use of the paddy stored up in the villages of Sirukovangudi and Pudupatnam from the harvest of one year for the seed and cultivation expenses of the next year on condition that the value of the paddy so used was treated as a temporary loan by her to the trust. This is in effect what both she and the second defendant state in their evidence, with this difference that, according to her, second defendant assumed management at once while, according to second defendant's written statement and Exhibits I and XV which are letters written by him, plaintiff remained in practical management till March 1904 (N.B. Plaintiff's second witness states that both plaintiff and second defendant managed the trust during this period.).

3. Now, as plaintiff relies on Exhibits C, D and E as being admissions of liability made by first defendant's accredited agent, it is necessary to examine these documents and see what they are worth and to what extent they are binding on the trust as represented by first defendant.

4. Exhibits D, E, G, H speak of payments of interest to plaintiff on her loan but in the plaint, interest is claimed from July 13th, 1903, to July 11th, 1903, on Rs. 4,000. Plaintiff, therefore, cannot assert that any actual payments were made. This is some index of how worthless those entries in second defendant's statements of account are, us proving actual transactions. Again, Exhibit C contains a note that the sanctioned loan of Rs. 4,000 was raised from Neelayathakshi Ammal by purchase of seed and thasukooly paddy from her at 9 per cent interest. There is nothing in this document to put the first defendant upon notice that a pre-existing liability dating from 1897, the first year of the trust was being acknowledged, for Exhibits J and N evidently refer to a money loan for meeting the cost of cultivation in 1903.

5. It is not plaintiff's case now nor anybody's case that the facts were as these Exhibits would cause one to believe. Plaintiff's case at the trial was that in 1897, she left in the trust 2,200 kalams of paddy valued at Rs. 4,000 that belonged to her private estate, and that it was not taken out when second defend, ant assumed management. Plaintiff stated in her evidence:--At the time the second defendant assumed the management there were about 2,200 kalams of paddy remaining in the charity villages. That paddy belongs to me. Dating the first year after my husband's death when I had the management of the charity, that was laid out by me from my private property for the village cultivation. This paddy laid out by me in the first year was being made use of every year as paddy for seeds and cultivation charges and I did not take it back. As the said paddy had to be made use of over and over again every year, I did not take it back. That paddy in the first year will, even after its collection in the harvest of the crops of that year, be stored up and used for cultivation of the succeeding crop of the year and as it was being done in the same manner each year, it fell in arrears in the last year. It is that paddy which the second defendant said he would take for seeds and cultivation charges and for which he agreed to pay me Rs. 4,000. Again, in cross-examination:--This storing up of paddy for seeds and cultivation charges is only after the harvest. Although, at the time of my husband's death there were crops on the lands yet, inasmuch as it was not written in my husband's Will that the crops were included, the crops were only mine. I only expended the crops harvested at the time of my husband's death that were left after deducting for kist, etc., for the charity of the year. I do not know what quantity of paddy was stored up that year for seeds and what quantity for cultivation charges. Reading these two extracts together, it is difficult to resist the conclusion that plaintiff's whole claim is based on the erroneous supposition that she was entitled to treat as her private property the crops on the ground in the trust villages at the time of her husband's death. But the Will (Exhibit XIII) converts the whole of the villages of Sirukovangudi and Pudupatnam into trust property and the crops go with the land, leaving nothing over for private ownership. There is no evidence on record that any paddy was brought in 1897 from other lands belonging to the plaintiff except the ambiguous phrase 'received' from Mayavaram head quarters' in Exhibit C. It would be natural to utilise the paddy grown in one year for the seed and cultivation expenses of the next, as was actually done in succeeding years and for this purpose to take the paddy nearest at hand and to devote what remained over to the purpose of the charity. It is not stated that 1897 was anything but a normal year, although it is indicated in Exhibit IV that Vikari (1899) was a year of scarcity. We, therefore, consider that plaintiff has failed to prove that she lent anything in 1897 from her private funds towards the trust of which she was then a trustee. It is conceivable that her brother (the second defendant) who, according to her statement, remained friendly with her for 7 or 8 months after she gave over the management to him and was living in the same house with her at the time that Exhibit O was written (16th September 1903) and 'not doing anything without consulting her' though she had a good claim to be reimbursed the value of the standing and stored crops in these villages, and seeing no other easy way of continuing the cultivation for 1903, yielded to her demand on condition of her agents releasing the paddy stored on the spot. But his action cannot be taken as binding the Taluk Board, unless it is shown that they were aware of all the circumstances and in that knowledge gave their approval. Seeing that he held his appointment under the conditions set out in Exhibit XIV, one of which was that their previous sanction must be obtained for all borrowing of money for the purposes of the charities, it is not likely that they would have readily approved of his conduct if they had known that he was in fact admitting a preexisting liability. It is the case of both plaintiff and second defendant that they were friendly for a time and afterwards fell out. The exact cause is not in evidence. Second defendant states that they fell out four or five months before Exhibit I, which is dated the 10th April 1905, was written. His statement in examination-in-chief that he was not on speaking terms with his sister in July 1903 is probably false, as he admitted in cross-examination that from August-September 1903 till April 1904, he looked after her private estate as well. It is only in Exhibit I dated April 10th, 1905, that he began to set up a case that the loan was taken on condition of her furnishing correct accounts. It may be that he hoped to shelter himself from personal liability by taking up this position, but plaintiff has not sought to make him personally liable, and it was probably an after thought to require an account from his sister.

6. No accounts are now forthcoming to substantiate plaintiff's statement that she expended the crops harvested from the trust property in 1897 for the charity of the year and that she lent 2,200 kalams of paddy from her private resources. She was at that time acting in a fiduciary capacity being one of the four, trustees under the Will, and it was, therefore, clearly her duty to keep her private properly, distinct from the trust property and to maintain accounts of all loans taken from one property for the benefit of the other. It is necessary for the Court to scrutinize carefully all claims on the part of a former trustee against the trust estate and not to pass items unsupported by accounts kept in the course of business during the tenure of the trusteeship. Plaintiff is unable now to say what quantity of paddy was......for seed and what quantity for cultivation charges. Admittedly, she has no accounts at all with her relating to this subject. Her statement that second defendant took away the accounts that there were when he took possession of the villages appears to be false, for she gave him no notice and took no steps to obtain them back. Plaintiff examined as her second witness her Karyasthan who used to write accounts for her and is still in her service. This witness did not see the paddy alleged to have been borrowed from plaintiff and in his written statement as fourth defendant he puts her to proof of the advance made without his knowledge. Plaintiff's third and fourth witnesses of whom the former was her accountant and the latter is still in her service mention the stocking of 160 kalams and 600 kalams respectively in the villages of Pudupatnam and Sirukovangudi but do not speak of any accounts being looked into when Rs. 4,000 was fixed as the value of 2,200 kalams of paddy loaned. Plaintiff's excuse for not replying to Exhibit I, which required her to render a true statement of accounts, that she had no one to help her is not a plausible reason for not immediately taxing him with the removal of her accounts.

7. For these reasons, we consider that plaintiff's suit was rightly dismissed by the Subordinate Judge, and we would dismiss the appeal with costs.