The main legal point established in the judgment is the liability of a trustee de son tort under Section 92 of the Code of Civil Procedure, and the secondary liability of other trustees for the proper administration of trust property.

Phillips, J.

1. The plaintiffs bring this suit under Section 92 of the Code of Civil Procedure against seven defendants and pray for the removal of the defendants from management, for the appointment of new trustees, for an account from the defendants and for the settlement of a scheme. In the plaint it is stated that defendants Nos. 6 and 7 are the "present trustees" of the plaint temple and defendants Nos. 1 to 5 are the Nattamaikars who are entrusted with collecting money due to the temple; and, although defendant Nos. 1 to 5 are not specifically described in the plaint as trustees, it is clear from the language of the plaint that the allegation is that they have been in management of the trust and should be removed on account of their misappropriation of The temple funds.

2. When the case came on for trial The plaintiffs and defendants Nos. 6 and 7 agreed upon a schedule which was approved of by the Court, but defendants Nos. 1 to 5 were ex parte to this hearing. A preliminary decree was, therefore, drawn up settling the scheme and ordering a Commissioner to examine The accounts in order to find out which of the defendants were liable to make good monies to the temple.

3. In accordance with this decree, The Commissioner proceeded to examine the accounts and to take evidence and, as a result of his enquiry, he sent in a report to which objections were taken by the defendants. After hearing these objections, the learned Subordinate Judge has found that defendants Nos. 6 and 7 have to make good a sum of Rs. 338; that the 1st defendant has to account for Rs. 2,774-8-2, and that the 7th defendant is also liable for another sum of Rs. 60.

4. Defendants Nos. 1 to 5 appeal against the preliminary decree in Appeal No. 85 of 1921 and the first defendant alone appeals against The final decree in appeal No. 118 of 1922 The first objection that is token in appeal is, that this suit, under Section 92, Civil Procedure Code, will not he against the defendants Nos. 1 to 5 as they are not trustees but mere alienees of the trust property. It has been held that no relief can be granted against alienees of trust property in a suit under Section 92, vide Kalyana Venkataramana Aiyengar v. Kasturi Ranga Aiyengar (1917) 40 Mad. 212, Asam Raghavalu Shetty v. Pellati Sitamma (1914) 27 M.L.J. 266 and Rangayya Naidu v. Chinnasamy Iyer (1915) 28 Bom. 326 and if the 1st defendant, to whose case the argument is almost entirely addressed is a mere alienee, it is clear that no relief can be granted against him in this suit.

5. It is, however, contended for the plaintiffs that the 1st defendant is not a mere alienee but a trustee de son tort and it is well settled that a suit under Section 92 will lie against such a person, for he is in effect a trustee de facto, though not de jure, I may refer to Jugalkishore v. Lashmandas (1899) 23 Bom. 659, Budree Das Mukin v. Chooni Lal Johurry (1906) 33 Cal. 789, Ram Bilas v. Nitya Nand A.I.R. 1922 All. 542 and Siddan Lal v. Gauri Shankar (1917) 40 I.C. 165.

6. It is argued that the Subordinate Judge, when directing an account to be taken, did not find that the 1st defendant was a trustee de son tort and that apparently is correct, for no finding is recorded and admittedly no evidence on the point was taken; but the Commissioner was ordered to enquire as to which defendant was liable and although the Subordinate Judge seems to have taken it for granted that the 1st defendant would be liable, he did not definitely consider the point, probably because, defendants Nos. 1 to 5, being ex parte, the question was not argued before him.

7. When evidence was taken by the Commissioner, two witnesses were examined on behalf of defendants Nos. 6 and 7 who wore not at all cross-examined, and their evidence shows clearly that the 1st defendant was actually collecting money for the temple and was in effect, managing all the affairs of the temple. There is no counter-evidence and, consequently, I think we must accept the statements o