TIRUNARAYANA PILLAI Vs. PRYMANICKAVACHAGAM CHETTIAR

JUDGEMENT

(1.) The appellants are defendants 1 and 2 in the lower Court. On the death of appellant 1 (defendant 1) pending this appeal the other appellant applied to add his legal representative, who opposed the application and stated that he did not wish to continue the appeal. The appellants being co-trustees and the presence of all trustees before the Court being necessary to determine the appeal by the surviving trustee and the questions arising between the trustees and the respondents oestui que trust, we ordered the addition of the legal representative of the deceased defendant 1 as a co-respondent.

(2.) The suit though originally brought by two plaintiffs was afterwards continued as a representative one on behalf of all creditors of defendants 5 to 8 for whose benefit they executed a trust deed Ex.1 dated 19 August 1923 of all their properties mentioned in the Schedules attached thereto constituting defendants 1 to 4 and another, since deceased, trustees to sell and distribute the proceeds rateably among their creditors mentioned in Schedule A thereto. The plaintiffs (respondents 1 and 2) charged the trustees with several breaches of trust, passive and active, such as not getting in all the properties, not getting the lands cultivated and houses lat, not keeping proper accounts, buying the trust properties at auctions themselves in the name of benamidars while not paying the purchase money due on those purchases, underselling the trust properties, partiality in the distribution of dividends, etc, and prayed for removal of the trustees and appointment of new trustees, administration of the trust properties, accounts of the dealings by the trustees and recovery of what may be found due from the trustees and other appropriate reliefs.

(3.) Defendants 1 to 3 adopted the same defence denying the charges and asking that the suit should be dismissed. The lower Court raised four issues of which the most important was issue 1 which raised the question whether the acts of malfeasance, misfeasance, and gross negligence complained of against defendants 1 to 4 are true and if so to what relief the plaintiffs are entitled. The learned Judge heard the evidence which was voluminous and delivered a careful and painstaking judgment considering the Several charges and passed a preliminary decree in terms of paragraph 95 of his judgment removing the trustees from their office and proposing to appoint suitable persons in their stead at the time of the final decree. He also directed that the new trustees when appointed should take the steps mentioned in the decree and carry out the trust including inter alia the re-sale of certain trust properties which he found the trustees had themselves purchased benami in the names of others provided that the re-sale fetched a better price than that at which the trustees themselves had purchased and ordered the trustees to pay four sums of money which he found that they had made themselves liable for by reason of their neglect of duty.