Muttusami Ayyar, J.

1. The appellants are parties interested in the due administration of an endowed public charity in Tanjore, and the respondent is its present trustee by right of inheritance. The former charged the latter with negligence and misconduct and instituted this suit in the District Court of Tanjore to remove him from the office of trustee and to have another appointed in his place. The Judge held that he had no jurisdiction to entertain the suit under Section 539 of the Code of Civil Procedure, and, relying on the decision in Narasimha v. Ayyan I.L.R., 12 Mad., 157), dismissed the claim with costs.

2. The contention in appeal is that the Judge has jurisdiction, and if he has no jurisdiction, he ought to have returned the plaint to be presented to a Court of competent jurisdiction. It is urged that since Narasimha v. Ayyan I.L.R., 12 Mad., 157), was decided, Section 539 has been amended, and that, as pointed out in Chimpa v. Pattabhirama (Appeal No. 199 of 1887 not reported), the procedure under Sir Samuel Romillys Act (52 Geo. III, Cap. 101) was by petition and summary order, whereas a regular suit is prescribed by Section 539 of the Code of Civil Procedure.

3. The decision in Narasimha v. Ayyan I.L.R., 12 Mad., 157), rests on two grounds, viz., that the plaintiff in that case had no direct interest in the trust, and that it was not clear that a suit to remove a trustee hostilely could be brought under Section 539. As Act VII of 1888 amended that section by substituting the words "two or more persons having an interest in the trust" for the words "two or more persons having a direct interest in the trust," the question in this appeal is whether a suit to remove a hereditary trustee for misconduct will lie under Section 539, though the trustee denies the misconduct imputed to him and is willing to act as trustee. It is not denied that under Sir Samuel Romillys Act a trustee could not be removed hostilely, but our attention is drawn to the Trustee Act, 13 and 14 Vic, Cap. 60, Section 50. Even under this Statute, the Courts refused to remove a trustee by an order and otherwise than by a suit--(see the cases cited in Lewin on Trusts, 8th edition, p. 1028). A reference, therefore, to the English Statutes does not carry the case further than that Section 539 is taken from them, but that a suit has to be instituted under it whilst the procedure prescribed by the former was summary. The decision in Chimpa v. Pattabhirama (Appeal No. 199 of 1887 not reported) simply pointed out this distinction, and the question has, therefore, to be determined with reference to the language of Section 539 and the construction suggested by it. It is to be observed that the dismissal or removal of a trustee is not specified among the descriptions of relief to be awarded under Section 539, and the proviso for such further relief as the nature of the case may require presupposes, as explained in Narasimha v. Ayyan I.L.R., 12 Mad., 157) some matter incidental to the relief expressly authorized to be granted. This appears to warrant the construction placed upon it that it was intended not to include cases in which a hereditary trustee has to be hostilely removed, but to limit it to the classes of cases dealt with by orders under the English Statutes. The decision of the Judge is right. As regards, however, the contention that the plaint ought to have been returned for want of jurisdiction, I think it is well founded, as no other question has been decided in this case.

4. I would, therefore, modify the decree by ordering the plaint to be returned and confirm it in other respects.

Best, J.

5. The District Judge has dismissed the suit on the ground that the plaintiffs are not entitled to sue under Section 539 of the Code of Civil Procedure, quoting, as his authority, the decision of this Court in Narasimha v. Ayyan I.L.R., 12 Mad., 157).

6. The suit was held in that case to be non-maintainable, because "the plaintiffs had not a direct interest i