Woodroffe, J.@mdashThis is a suit which is sought to be, and may be treated, as supplemental to suit No. 584 of 1878, which was instituted for administration of the estate and trusts of the Will of one Babu Lal Agarwalla. The testator died in October 1873 after having made his Will, dated the 6th August 1873, of which he appointed three persons Jugul Kishore Agarwalla, Kally Prasad Agarwalla and Madho Prasad Agarwalla, his executors and trustees. By that Will he gave certain legacies and devised the residue of his estate to certain religious and charitable uses He directed that his executors and trustees should erect a temple and suitable buildings for (sic) residence of members of his family and for reception of poor and homeless persons at Brindabun, and he appointed one Mundra Bibee, since deceased, his sister-in-law, one Buldeo Agarwalla, since deceased, and who is now represented by the Defendant Lalla Makhan Lal Agarwalla and the Plaintiff, managers of the temple, and directed that from and out of the rents and income and profits arising from his estate certain sums should be remitted monthly by his executors and trustees to the managers of the temple to be by them expended in the performance of certain pujas, maintenance and support of the members of the family and feeding of the poor. He also directed that the surplus left after certain expenditure in Calcutta, should also be sent to the managers to be applied by them in the same way as the monthly remittance.
2. As regards the trustees, the testator provided that if any of the trustees appointed by him or any of the trustees to be appointed in the manner by the Will provided for the time being, should die or desire to be discharged or refuse to or become incapable to act, then the trustee or trustees so dying or desiring to be discharged or refusing to act, might appoint any other person or persons to be trustee or trustees in his or their place.
3. Probate was obtained by the executors and trustees on the 27th December 1873, and it having been alleged that the directions of the Will, particularly the directions as regards erection of the temple, had not been carried out, the Plaintiff on the 5th September 1878 instituted the suit, which I have mentioned, viz., suit No. 584 of 1878, for construction of the testator''s Will for administration of his estate, for an account, for removal of the trustees and executors and for appointment of new trustees and for the framing of a scheme for the erection of the temple.
4. A preliminary decree was made on the 27th June 1879 and on the 13th September 1882 it was, amongst other things, ordered and decreed that, the ''mandir'' and the buildings to be erected at Brindabun as directed by the Will of the testator should be erected and completed without delay by the executors and trustees under the scheme to be framed by the Court or otherwise as the Court might direct, with liberty to the parties to apply to the Court in respect thereof, and it was further ordered and decreed that the executors and trustees should continue in charge of the testator''s estate until the further order of the Court, and should pass their accounts half yearly before the Court.
5. The preliminary decree ordered and decreed amongst other things that the Defendants executors and trustees should forthwith carry out the trusts of the Will as to the erection of the ''mandir'' and the buildings at Brindabun.
6. It is alleged in the plaint that on the 23rd August 1884 the trustee Jugul Kishore, without having obtained sanction of the Court and without obtaining his discharge from his office as trustee, purported to appoint his son, one Bilashi Ram, since deceased, as trustee in his place and stead under the powers conferred upon him by the Will; and the plaint further alleges that Bilashi Ram by his Will purported to appoint his son Thakursi Dass, who is also now dead, to be a trustee in his place and stead.
7. It is further alleged that in spite of this appointment of Thakursi Dass, Jugul Kishore, the trustee, continued to act not only as one of the trustees to the Will but took the most active part in the management of the estate and held custody of all the title-deeds and books of account and papers connected with the estate.
8. As regards the alleged appointment of Bilashi Ram, the Defendant Chutterbhuj states that he has no personal knowledge of it, and does not admit such appointment and states that as a matter of fact Bilashi Ram did not act as trustee of the Will of the testator but that he used to assist Jugul Kishore in matters connected with the trust, always acting under the immediate control and supervision of Jugul Kishore who never ceased to act as trustee under the Will until the appointment of the Defendant Chutterbhuj as trustee.
9. It is alleged that, in spite of the directions contained in the decree of 1882, the executors and trustees did not carry out the trusts relating to the erection of the temple and the buildings and that thereupon the Plaintiff, on the 10th September 1890, entered into an arrangement with Kally Prasad and Madho Prasad, two of the original trustees, and, also with Bilashi Ram, whom the Plaintiff states that she then under a mistaken belief supposed to be a trustee, and by this agreement the Plaintiff agreed to erect the temple and buildings, which were estimated to cost a sum of Rs. 37,000 on her being paid the expenses therefor in the manner provided by the agreement.
10. On the 29th July 1895 the Plaintiff applied in the suit No. 584 of 1878 on certain grounds, amongst others, that the terms of the agreement of the 10th September 1890 had not been carried out and also on the ground of waste and misappropriation, for an order that Jugul Kishore should be removed from his office of trustee and thereupon on the 29th July 1895 an order was made that the executors and trustees should file such of their accounts in pursuance of the directions contained in the decree of the 13th September 1882 within two months from date of order as had not then been filed and it was also ordered that they should pass the accounts already filed by them and not passed and that they should continue to file their subsequent accounts every half-year and pass the same and they were further directed to make certain payments to the Plaintiff, as appear in that order.
11. In the same suit further proceedings were had and certain orders made on the 14th March 1896 and the 23rd April 1896, by which certain sums were directed to be paid out of the funds then standing to the credit of the suit to enable the Plaintiff to complete the erection of the temple and the buildings. Since the 23rd April 1896 the Plaintiff has completed the erection and decoration of the temple and the installation of the Thakur.
12. In 1897 the trustee Kally Prosad died without having appointed any one in his stead and in 1900 the trustee Madho Prasad died after having appointed by Will (without having obtained his discharge), the Defendant Kanhai Lal Agarwalla as a trustee in his stead. Then on the 16th September 1900 the surviving trustee Jugul Kishore, by a deed of that date, purported to appoint his grandson, the Defendant Chutterbhuj, to be a trustee of the Will in his place and stead without; obtaining sanction of this Court and without obtaining his discharge and this Defendant Chutterbhuj on his appointment took over possession of the estate of Jugul Kishore and he and Kanhai Lal Agarwalla who claim to be trustee by virtue of the appointments I have mentioned, are stated to be in possession of the estate of Babu Lal Agarwalla. It is stated that they have not duly tiled accounts in respect of their dealings with that estate which they are alleged to have mismanaged.
13. On the 5th April 1901 further proceedings were taken in suit No. 584 of 1878, an application being made to have the suit revived by bringing on the record the heirs and representatives of Jugul Kishore and Madho Prasad, and by an order, dated the 29th May 1903, the suit was revived against their heirs and legal representatives. On the 3rd September 1903 the present suit was instituted for a declaration that the appointment of the Defendants Kanhai Lal Agarwalla and Chutterbhuj Agarwalla as trustees of the Will of Babu Lal is void and inoperative and that, in any event, they should be removed, for the appointment of fit and proper persons as trustees, an enquiry to ascertain what the estate now consists of, for an account as against the Defendants Kanhai Lal and Chutterbhuj on the basis of wilful neglect and default for the framing of a scheme to carry out the trusts of the Will of Babu Lal and for other relief.
14. The matter now comes before me upon settlement of issues and as such must, I think, be dealt with upon such facts as are admitted by the pleadings of the parties or otherwise admitted by them. This being so, and the charges of mismanagement being denied, that portion of the case, as also the prayer to have the accounts taken upon the basis of wilful neglect and default, must be taken to be abandoned.
15. As regards the question of appointment of trustees, there are at present two persons who claim to be such, viz., the Defendants Chutterbhuj and Kanhai Lal. It is agreed by all the parties that the original number of trustees should be maintained and there must therefore be an enquiry to ascertain who is a fit and proper person to be appointed as the third trustee under this Will.
16. It is clear that whether or not the Defendant Kanhai Lal Agarwalla was validly appointed, he is not a fit person to be a trustee of this estate. He is admittedly an insolvent who states that certain monies of the estate came to his possession and were lost by his insolvency and that since the date of his insolvency he has not taken any part in the management of the estate and has filed no accounts.
17. The real question therefore in this suit is as to the appointment of the Defendant Chutterbhuj. Two objections have been taken to that appointment. It is said, in the first place, that assuming that Jugul Kishore had power after and notwithstanding the decree of the 13th September 1882 to appoint a trustee, he had in fact exhausted such power in appointing Bilashi Ram and that upon the appointment of Bilashi Ram only the latter or his heirs could appoint a trustee in succession to him. As I have already stated, I can only deal with this case upon the facts admitted by the parties and inasmuch as the appointment of Bilashi Ram is not admitted and it is alleged that he in fact never acted as trustee, I am unable to give effect to the objection which has been raised by the Plaintiff on this point. It was suggested that I should refer the question of the appointment of Bilashi Ram, but I do not think that when the matter comes, as this does, before me upon settlement of issues I should refer any question of fact which is necessary for the determination of au issue which has to be decided by the Court. The learned Advocate-General has next argued that having regard to the terms of the decree of the 13th September 1882 and to the fact that the estate was being administered and is still now being administered by the Court, Jugul Kishore, the trustee appointed under the Will, was not entitled to exercise the power of appointment given by that Will without the sanction of this Court.
18. This matter resolves itself into a consideration of the question whether the decree of 1882 was a final decree and whether the Court has relinquished the administration, which it assumed under the preliminary decree of 1879, and also as to whether the effect of the express directions contained in the decree of 1882 that the executors and trustees should continue in charge of the estate until further order of Court and should pass their accounts half-yearly before the Court, did not preclude an appointment by the trustee. I think that, having regard both to the terms of the decree of 1882 and also to the proceedings thereafter taken, it cannot be said that that decree was a final decree in this suit.
19. Further, on the 29th July 1895, on the 14th March, on the 23rd April 1896, on the 5th April 1902 and on the 29th May 1903, proceedings were taken subsequent to the decree in that suit which I have referred to and which are mentioned in the 13th, 14th and 29th paragraphs of the plaint, and in all those proceedings it was assumed, and orders of Court were passed on the basis, that there was a pending suit. No application was made for discharge of the trustees or for appointment of new trustees or to remove the trust from the administration of the Court. Under those circumstances, I think, the case comes within the rule as stated at p. 733 of the 10th edition of Lewin on Trusts, that where a suit has been instituted for administration of the trust and a decree has been made, that attracts the Court''s jurisdiction and the trustee cannot afterwards exercise the power without the concurrent sanction of the Court.
20. It has been argued that concurrent sanction is not necessary to the validity of the appointment of the trustees, that the matter is merely one of control and that the Court will not interfere provided that it is not shown that the person appointed was not a proper one and that if that be not shown, the appointment stands.
21. Reliance has been placed on the case In re hall 54 L.J.N.S. Ch. 527: s.c. 51 L.T.N.S. 901 (1885). It is, however, to be observed that the circumstances of that case are very different from those which are cited in support of the general rule to which I have referred. In that case, which deals with the effect of Order 55, Rule 3, directing certain enquiries, including an enquiry whether previous trustees had been appointed and what steps should be taken for appointment of new trustees, no general order for administration had in fact been made such as has been made in this case.
22. It is further to be observed that in the present case there is the express direction contained in the decree that the trustees should continue in charge of the testator''s estate until the further order of this Court, and it seems to me that the execution of the power of appointment by the trustees under such circumstances must necessarily conflict with that order.
23. I hold, therefore, that it was not open to the trustees Jugul Kishore and Madho Prasad to appoint the Defendants Kanhai Lal and Chutterbhuj without sanction of this Court which was admittedly not applied for, and that they were not validly appointed. Inasmuch, however, as the effect of the decree does not take away the right of nomination which Jugul Kishore possessed, the deed of appointment by him may, I think, be recognised as such nomination and it will be referred to the Official Referee to enquire whether the Defendant Chutterbhuj is a fit and proper person to be appointed a trustee. For the purpose of such enquiry it will not be open to the Plaintiff or any other party to enter into any question of alleged mismanagement since the date of the deed purporting to appoint him. If Chutterbhuj is a fit and proper person he must be appointed a trustee.
24. There will also be a reference to enquire as to what two other persons are fit and proper persons to be appointed as trustees of this Will.
25. Then as regards the other prayers of the plaint there will be an enquiry in terms of prayer (e) of the plaint and an account must be taken in terms of prayer, (f) except that the account is not to be on the basis of wilful neglect or default. There will be a direction that a scheme be framed for the purpose of carrying out such of the trusts of the Will of the testator, including the erection of a dhurumsala, as have not been already carried out.
26. There will be a decree in terms of clause (i) of the plaint. There will be a direction to frame a scheme in respect of the management of the ''mandir'' if such a scheme be necessary, it being open to the Plaintiff to establish before the Referee that no such scheme is necessary. There must be also, I think, a direction to the managers of the ''mandir'' to render accounts of their management.
Mr. Dunne
27. There will be no question raised or argued before the Referee as to mismanagement as that has been abandoned here.
28. The Court.--That is so. I have dealt with this in my judgment. As regards costs of suit, costs of the Plaintiff and of all the Defendants appearing here through Messrs. Wilson & Co. to be out of the estate. As regards the Defendants appearing through Messrs. Wilson & Co. there will be one set of costs only. The Plaintiff''s costs, as they are trustee''s costs, will be as between attorney and client, including all reserved costs--if any. Costs of the Defendant Chutterbhuj will also come out of the estate and if he be found on the reference to be a fit and proper person to be appointed trustee he may under the circumstances have his costs as trustee''s costs.
Mr. A. Chaudhuri
29. I am entitled to my costs out of the estate. They have withdrawn all charges against me and I am in the same possession as Chutterbhuj and my previous insolvency ought not to be a bar.
30. The Court.--Your client has lost monies of the estate and is directed to render accounts. I will not make any order upon you to pay any one else''s costs but you must pay your own.
Mr. Chuckerburtty
31. For four months no money has been sent to Brindabun. Some money ought to be paid now as the administration is suffering there, I understand Mr. Dunne''s client has Rs. 30,000 in his hands.
Mr. Dunne
32. We can pay if the Court directs but it must be without prejudice to any question upon the accounts if we have already paid any money in advance.
Mr. Chuckerbutty
33. I have no objection to that.
34. The Court--Very well.
Mr. Dunne
35. I ask that the reference be treated as urgent reference.
36. The Court.--Yes.
Mr. Avetoom
37. I am entitled to my costs as between attorney and client.
38. I was not here when judgment was delivered.
Mr. Chuckerbutty
39. Mr. Avetoom''s client can have a share in that one set of costs directed to be paid out of the estate. The Court.--Yes. I have directed one set of costs to be paid to all the Defendants appearing through Messrs. Wilson & Co., and one of those Defendants is entitled to costs as between attorney and client. The coats will be on that basis.
