INDU BHUSAN SEN Vs. KIRON CHANDRA SEN

JUDGEMENT

(1.) This is an appeal under Section 15 of the Letters Patent from a decision of Ghose J. It arises out of a suit for accounts by the plaintiffs-respondents, as the present managing committee of the Kalia Re-modelled High English School, against the defendants-appellants, as the former managing committee, for the period from 1914 to 28 December 1931, when the new managing committee came into office. The trial Court decreed the suit as against defendants 1 and 6, the Secretary, and the Joint Secretary, respectively, but only as regards the period from April 1926 to 28 December 1931. The decree was affirmed on appeal by the District Judge, and again affirmed by Ghose J. on appeal to the High Court. This is now an appeal from his decision. We have been taken in some detail through the history of this school and the arrangements made from time to time for the management of its affairs. It appears that from 1900 to 1931 the affairs of the school were in the hands of a managing committee functioning under what has been described as the Bamford Scheme, but towards the end of 1931 the managing committee was reconstituted on lines recommended by the University of Calcutta. The defendants, of whom there are 16, were amongst the members of the managing committee that went out of office in 1931 and the plaintiffs are the members of the reconstituted managing committee. Three of the plaintiffs, viz. 1, 6 and 10 were also on the old managing committee.

(2.) The first point raised on behalf of the appellants is that the suit is incompetent by reason of the provisions of Section 92, Civil P.C. Their contention is that the school is trust property, that the members of the managing committee who were in office immediately before 28th December 1931 are still the trustees in law of that property; that the plaintiffs are not properly, constituted members of the managing committee and therefore not trustees; and consequently their suit is not a suit for accounts by trustees against ex-trustees but must be regarded as a suit by certain persons on behalf of the general public against the trustees of a public charitable trust. As the consent of the Advocate-General (or of the Collector under Section 93 of the Code) was not obtained, the suit, it is said, is not maintainable.

(3.) This point was not taken in the defendants written statement. No issue was raised on it, with the result that there are not proper materials on the record on which we can come to a finding as to the existence or the character of the alleged trust. But even assuming that the school is trust property and that the members of the managing committee for the time being lawfully in office are the trustees thereof, it appears to us that as the result of the decision in Suit No. 1293 of 1931, the defendant-appellants are not, and that the plaintiffs are the present trustees. It follows that this is a suit by trustees against past trustees for accounts. It is however contended by the appellants that even so Section 92 of the Code is a bar. We do not accept this contention for which no authority has been cited. Section 92 applies only where the suit brought is representative in its nature, that is to say, where the suit is brought by two or more persons as representing the general public in order to secure the proper administration of a public trust : Appana Poricha V/s. Narasinga Poricha (1922) 9 A.I.R. Mad. 17, Budree Das Vs. Chooni Lal (1906) 33 Cal. 789. It seems to us on these authorities that a suit brought by trustees on their own behalf and in the discharge of their own functions as trustees, not being a representative suit, is outside the scope of Section 92.