Varadachariar, J

[1] This appeal arises out of a suit to enforce the terms of an arrangement (Ex. B) entered into between the parties in 1898, in respect of a temple or mutt founded and endowed by one of their predecessors. Shortly before the date of this agreement, a suit had been filed by the present second defendant against the present first defendant impleading the present plaintiff as second defendant therein, to establish the joint right of that plaintiff with the first defendant to manage this institution. The learned District Judge who tried the suit (O.S. No. 34 of 1896) held against the joint right claimed by the plaintiff. It is unnecessary for us to canvass the grounds of this judgment because before the expiry of the time for perferring an appeal therefrom and, according to the finding of the learned Subordinate Judge, in view of a contemplated appeal by the then plaintiff the parties on the advice of respectable friends settled the dispute in accordance with the terms embodied in Ex. B.

[2] Mr. Venkatachariar on behalf of the appellant before us mainly argued the appeal on the basis that this is something like an ordinary contract of which the plaintiff is now seeking specific performance by way of a direction couched in terms of an injunction and he contended that the agreement contains so many details that if the matter should be viewed as a claim for specific performance it is not an agreement which the court would think of specifically enforcing. This argument seems to us to rest on a fallacy. The arrangement is no doubt in a sense the result of an agreement between the parties but it is an agreement by which they defined the manner in which they are to carry out the duties of a trust which in one view of the law had devolved on them jointly. As pointed out by this Court in Ramanathan Chetti v. Murugappa Chetti (1903) I.L.R. 27 Mad. 192 at 201 and 202 : 13 M.L.J. 341 and by the Judicial Committee in Ramanathan Chetti v. Murugappa Chetti (1906) 33 I.A. 139 :

1. L.R. 29 Mad. 283 at 288 : 16 M.L.J. 265 (P.C.) such arrangements, if they are conducive to the interests of smooth administration of the affairs of the trust, are really in the nature of schemes framed for the management of the trust and will be binding upon the parties thereto and their representatives till modified either by common consent or in some manner known to law. It is not therefore correct to describe the action merely as one for specific performance of a contract.

[3] Mr. Venkatachariar next argued that under the terms of Ex. B the position of the plaintiff and the second defendant was merely that of a kind of agent and not that of a co-trustee. We are unable to agree with this contention. There are no doubt certain clauses which deal with documents to be taken-in respect of the transactions of the trust, providing that the document should be taken in the first defendant s name as trustee. We do not understand those clauses to mean that the first defendant was to have any different legal status from his brothers. The only arrangement was that documents relating to the trust should be taken in his name, describing him as trustee. The other provisions of Ex. B make it clear that for legal purposes their rights were regarded as equal, though in respect of prasadams a small excess is provided for in favour of the first defendant. It is noteworthy that the right to settle the budget, the right to inspect the accounts and the right to decide upon loans or purchases out of the funds of the institution are given to the three jointly and the arrangement is intended to be perpetual so as to be binding upon the descendants of the parties as well. The argument that the plaintiff was merely constituted as an agent is therefore untenable.

[4] It was next argued that if the Court should give effect, to the terms of Ex. B the Court will be compelling the first defendant to run the risk of a breach of trust and reference was made in this connection to Section 26 of the Trusts Act. The answer to this argument is furnished by the observation of the Privy Council in Ramanathan Chetti v. Murugappa Chetti (1906) 33 I.A. 139 :

1. L.R. 29 Mad. 283 at 288 : 16 M.L.J. 265 (P.C.). Such arrangements for management of an institution are not in any sense an alienation of the office or delegation of the duties of the office because ex hypothesi the arrangement is made between persons who are jointly entitled to act as trustees. Section 26 no doubt provides for the liability of a trustee who hands over trust funds into the hands of his co-trustee without seeing that the terms of the trust are carried out. If under the terms of Section 26 the obligation rests upon the first defendant to see that the plaintiff carries out the terms of the trust we see no reason why the first defendant should not see to it.

[5] The decision in Ram Charan Bajpai v. Rakhal Das Mookerjee (1913) I.L.R. 41 Cal. 19 and Crosse v. Glennie (1843) 2 Y & C.C.C. 237 : 63 E.R. 104 do not really bear upon the case. Neither of them related to the rights and duties of trustees inter se; and in Crosse v. Glennie (1843) 2 Y & C.C.C. 237 : 63 E.R. 104 Sir J. L. Knight Bruce V.C. only said that the Court of equity need not grant relief in the case because it appeared to the learned Judge that the plaintiff had his remedies at law. At the end of the judgment, he makes it clear that he was dismissing the petition without prejudice to any action or application for mandamus.

[6] Our attention was invited to the decision of this Court in Krishniengar v. Viraraghavathathachariar (1915) 2 L.W. 607 where it was pointed out that even as against a trustee there could be no executable direction to carry out a particular festival. We are not at present concerned with the stage of execution of the decree. But we do not think that the learned Judges there intended to say that the rights of a person claiming to be a joint trustee could not be declared by a decree or that an injunction could not be issued against trustees for any purpose whatever.

[7] There is however some force in the appellant s contention that the decree as framed by the learned Subordinate Judge may give rise to difficulties as throwing upon the Court the duty of executing every direction contained in Ex. B. We do not think this was really what was intended; but to avoid any misapprehension we could modify the terms of the decree as follows. For the words

It is ordered and directed that the first defendant do carry out the terms of the suit agreement. (Ex. B.). dated 6th April 1898 "substitute" that the terms of the agreement Ex. B dated 6th April 1898 are binding on the parties.

[8] For the words:

Allowing the plaintiff to act as joint trustee and the first defendant do further bring into the mutt accounts and mutt custody the produce of the mutt lands and rnnd it over to the plaintiff in terms of the said agreement dated 6th April, 1898 (marked as Ex. B in the suit).

[9] Substitute the following.

and it is ordered and directed that the first defendant do bring into the mutt accounts and mutt custody the produce of the mutt lands or their proceeds up to this date and hand the same over to the plaintiff in terms of Ex. B to be applied by the plaintiff for the purposes of the trust and the first defendant be restrained by an injunction from interfering with the exercise of the plaintiff s right as joint trustee and in accordance with the terms of Ex. B.

[10] As the appeal has substantially failed the appellant will pay the respondent s costs of this appeal.

Appeal No. 48 of 1932.

This is an appeal by the plaintiffs against a decree dismissing a claim made by them against the defendant on a promissory note dated 31st May 1925. It is admitted that the money was lent out of the funds of a trust of which by our judgment in Appeal No. 445 of 1931 we have declared that the 1st plaintiff and the defendant and another are joint trustees. Even according to the 1st plaintiff he was away for sometime prior to June 1927 and during the period of his absence the defendant was looking after the affairs of the institution. The accounts were no doubt being maintained by a clerk but the defendant was supervising the management of the institution. The 1st plaintiff admittedly returned in June 1927 and if his case was that on his return he did not resume possession of the accounts of the institution or take charge of its management from the defendant, it merely means that the defendant was allowed to continue in management as trustee. It is the defendants case that the amount borrowed under this promissory note had been repaid into the trust account to the knowledge of the 1st plaintiff in December 1927 and in proof of it he relies on an entry in the account books of the trust dated 15th December 192

7. It has not been suggested that there is anything suspicious about that entry except the fact that the defendant was the person then in charge of the accounts. In the ordinary course the entry must have been made in the place and in the book in which it has been made and as the 1st plaintiff was at the time and had ever since been in the village itself, he must have had ample opportunities of inspecting the trust accounts if he chose. In these circumstances we do not see any reason why the entry in the account books of the trust should not be regarded as prima facie proof of the repayment of the money into the trust. If thereafter the defendant continued under any liability at all, it can only be his liability as a trustee to account for that sum to the institution and no longer the liability of a debtor under the promissory note. In this view we affirm the decree of the learned Subordinate Judge and dismiss the appeal with costs to be paid by the 1st appellant.

C.M.A. No. 85 of 1934 .

This is an appeal by the 1st defendant against an order passed by the learned Subordinate Judge of Berhampore in E.P. No. 24 of 1932 in O.S. No. 5 of 192

9. The order has not finally decided any question of rights but has merely directed the 1st defendant to bring into Court a sum of Rs. 4743-1-1 admitted to be in his hands. We see no reason to interfere with that direction. All other questions arising on that execution application will, we presume, be dealt with in the light of our observations in our judgment in Appeal No. 445 of 193

1. It is therefore unnecessary to say anything further in the C.M.A. beyond dismissing the same. In the circumstances we do not propose to make any order as to costs in the C.M.A.