Relief of removal of trustees.

The petitioners, who were the plaintiffs in O.S. No. 135 of 1955 on the file of»the Subordinate Judge’s Court, Madurai, applied under section 115, Civil Procedure Code, to revise the order of the learned Subordinate Judge, who rejected their application to amend the plaint in that suit.

The suit was filed under section 92, Civil Procedure Code, and the main reliefs asked for in the plaint were: (1) to modify the scheme and to provide for expenses for educational purposes out of the trust funds, and (2) the removal of defendants 1 to 5 from the trusteeship and the appointment of fresh trustees in their place. I am not concerned in these proceedings with the first of these two reliefs. In paragraph 14 of the plaint the plaintiffs set out the grounds on which they sought the removal of the trustees, defendants 1 to 5, which in substance were mismanagement of the trust funds, to which it was alleged internecine quarrels between the trustees also contributed. The amendment sought was the addition of a further plea which ran:

“The plaintiffs submit that the election of defendants 2 and 3 is invalid for the reasons that at the meeting which is said to have elected them, they brought outsiders as stated above and made their, vote in their favour. The plaintiffs further submit that under the custom and usage governing the institution and the letter and spirit of the scheme it is only the managing trustee who is entitled to call a meeting of trustees to elect the managing trustee. In this case it appears that though the 7th defendant who was the then managing trustee had applied for directions in E.A. No. 778 of 1955 as early as 1st November, 1955, from this Honourable Court, defendants 1 to 5 claimed to have called a meeting and selected the first defendant as the managing member. The plaintiffs therefore submit that the so called selection of the first defendant as managing trustee even if true is invalid and illegal”.

The learned Subordinate Judge held that it was a new case that the plaintiffs attempted to set up, which was not permissible by way of amendment. He held further that the scope of the suit filed under section 92, Civil Procedure Code should not be permitted to be enlarged beyond that of the sanction accorded by the Advocate-General.

The main contention of the learned counsel for the petitioners was that the amendment was sought only to set out additional grounds for the relief already asked for in the plaint, the removal of defendants 1 to 5 from their office of trustees. In my opinion, the learned counsel for the respondents was well-founded in his contention, that the proposed amendment could only furnish material for a different relief based on a cause of action different from that pleaded in the plaint.

To consider the scope of a suit unit under section 92, Civil Procedure Code, the following observations of Woodroffe, J., in Budree DasMukim v. Chooni Lal johurry1, are apposite:

“ It is of course admitted that the trust is a public one. But the section further assumes that the suit is a representative one brought for the benefit of the public and to enforce its rights upon a cause of action alleging a breach of trust or necessitv for directions for administration against a trustee and for the particular relief mentioned.”

A suit for a declaration, that the person in office was not entitled to be a trustee and that the assumption of office itself was invalid, does not in my opinion, fall within the scope of section 92, Civil Procedure Code.

In Vythilinga Pandara Sannadhi v. Temple Committee, Tinnevelly Circle2, a Division Bench of this Court considered the scope of the analogous provision, section 73 of Madras Act II of 1927. At page 1014, Curgenven, J., observed:

".....it appears to me very doubtful whether a suit by a trustee to establish his hereditary right to his office is a suit in respect of the administration or management of the religious endowment to which the trusteeship appertains. It is a suit relating t