Judgment :- 1. The plaintiffs are the appellants. The suit is for removal of defendants 1 to 4 form the office of trusteeship of a private family trust, for a scheme for the management of the trust and for other incidental reliefs. The plaintiffs and defendants belong to a family called Chathan Iravi Oollittar in Rajackamangalam. The family has a religious endowment for which the plaint properties have been dedicated. The suit was filed in a representative capacity, notice having been issued under Order 1, Rule 8 of Code of Civil Procedure, there being many members in the family who are not made parties to the suit. For the administration of the trust an Udampadi, Ext. A, was executed by the members of the family on 21-4-1109. According to that Udampadi the members of the family should assemble the day after the Mandakkat Fair in a building called Pandarakkulam Matom and lots should be taken for the election of one trustee and the trustee so elected should nominate another member of the family as his co-trustee and they together should manage the trust for a term of two years. They have to keep regular accounts and submit the same to the members of the family in a meeting to be called for the purpose within a weak after the Panguni Uthram. According to the plaintiffs, defendants 1 and 2 were the trustees on the date of suit. It is alleged that they were not discharging their duties properly and that they have misappropriated the income from the trust properties. The term of defendants 1 and 2 expired on 1-8-1120. It is further alleged that they induced defendants 6 and 7 to file a suit as O.S. No. 634 of 1120 of the Nagercoil Munsiff's Court and to obtain an injunction restraining them from holding the election for the appointment of new trustees. It is also alleged that defendants 3 and 4 pretended to be elected as trustees in the place of defendants 1 and 2. According to the plaintiffs, defendants 3 and 4 have not been elected trustees and the election, if any, is invalid. They, therefore, sued for the removal of defendants 1 to 4 from trusteeship, for a settlement of accounts relating to the trust and for a scheme for the management of the trust. 2. Defendants 1 to 5 filed written statements in the case. They, therefore, sued for the removal of defendants 1 to 4 from trusteeship, for a settlement of accounts relating to the trust and for a scheme for the management of the trust. 2. Defendants 1 to 5 filed written statements in the case. Defendants 1 and 2 denied the acts of maladministration attributed to them. They also contended that no election took place on 1-8-1120, on account of the order of injunction issued from the Munsiff's Court. They stated that they had no objection to a scheme being settled for the management of the trust. After filing the written statement they did nothing further in the suit. Defendants 3 and 4 contended that they were elected trustees at the meeting of the members of the family held on 1-8-1120 and that they were managing the trust from that date. They also contended that defendants I and 2 had misappropriated trust funds, that their accounts should be settled and that they (Defendants 3 and 4) should be allowed to recover from defendants 1 and 9 the amounts that would be found due from them. It was also contended that the injunction order issued in the suit in the Munsiff's Court would not bind the members of the family who were not parties to that suit. They further contended that no scheme for the future management of the trust was necessary and that if the members of the family thought it necessary to modify any of the terms of the Udampadi, Ex. A, it could be done in a general meeting of the members as provided in Ext. A The 5th defendant supported defendants 3 and 4. The plaintiffs filed a replication traversing the allegations in the written statements. 3. Issue 1 raised in the case related to the question whether defendants 1 and 2 still continued as trustees and whether defendants 3 and 4 were validly elected trustees. The court below found that defendants 3 and 4 were elected trustees on 1-8-1120 and that defendants 1 and 2 ceased to function as trustees from that date. 3. Issue 1 raised in the case related to the question whether defendants 1 and 2 still continued as trustees and whether defendants 3 and 4 were validly elected trustees. The court below found that defendants 3 and 4 were elected trustees on 1-8-1120 and that defendants 1 and 2 ceased to function as trustees from that date. Since the term of office of defendants 3 and 4 themselves was to cease on the 28th Kumbhom, 1122 namely, within a weak after the date of the judgment, and since a receiver was appointed for the suit properties learned counsel for the plaintiffs submitted at the time of argument that a finding on the question whether defendants 3 and 4 were validly elected as trustees was not necessary. Therefore, the court below did not record a finding on the question whether defendants 3 and 4 were validly elected as trustees. It was however, held that defendants 1 and 2 did not continue as trustees after 1-8-1120. 4. Issue 3 raised in the case related to the question whether there were valid grounds for removing defendants 1 and 2 or defendants 3 and 4 from the office of trusteeship. In view of the fact that issue 1 relating to the validity of the election of defendants 3 and 4 was not decided by the court below this issue also was not decided. 5. Issue No. 4 related to the question as to what amount, if any, was due to the trust from defendants 1 to 4. This issue also was not tried by the court below, the reason being that the Udampadi, Ex. A, itself provided the necessary machinery for taking accounts from the trustees and that if they failed to submit proper accounts the succeeding trustees could sue them for appropriate reliefs. 6. Issue 2 related to the question whether it was necessary or advisable to frame a scheme for the plaint trust and, if so, what should be the provisions of the scheme. This was the main issue that was tried by the court below. 6. Issue 2 related to the question whether it was necessary or advisable to frame a scheme for the plaint trust and, if so, what should be the provisions of the scheme. This was the main issue that was tried by the court below. The learned District Judge took the view that in the case of family religious trust it is only in cases in which the trust properties are vested in the idol or deity that a scheme for management can be framed by the court and that in cases in which the properties are vested in the members of the family themselves and only the income therefrom is set apart for the performance of certain charitable or religious services the court has no jurisdiction to frame a scheme. On a construction of the Udampadi, Ex. A, the court below came to the conclusion that the properties in this case did not vest in the idol or deity but that they vested in the members of the family themselves. The learned judge, therefore, held that he had no jurisdiction to frame a scheme for the management of the trust. Hence the suit was dismissed but without costs. 7. The only point argued in this appeal was that the court below went wrong in holding that it had no jurisdiction to frame a scheme for the management of the plaint trust. It was argued for the appellants that in the case of a family religious trust there is nothing to prevent the court from framing a scheme for its management and that the distinction made by the court below between family trusts in which the trust properties are vested in an idol or deity and those in which the legal ownership of the trust properties is vested in the family itself is unsupportable. According to learned counsel for the appellants the court has jurisdiction to prepare a scheme for the management of a private religious trust, whether the trust properties are vested in the object of the trust or not. According to learned counsel for the appellants the court has jurisdiction to prepare a scheme for the management of a private religious trust, whether the trust properties are vested in the object of the trust or not. Before discussing this question it is necessary to consider an argument advanced on behalf of the respondents that the properties in this case do not belong to a trust at all According to learned counsel for the respondents, in order to create a trust there must be a dedication of properties, and he contended that in this case there is no such dedication. But the fact that this is a private family trust was not denied by the defendants in the court below. Paragraph 1 of the plaint reads thus: In the written statement filed by defendants 1 and 2 they admitted this allegation. Paragraph 1 of their written statement is to this effect: " In the written statement filed by defendants 3 and 4 the allegation in paragraph 1 of the plaint that the plaint trust is a private family trust was not denied. It was only contended that defendants 1 and 2 were not the trustees on the date of suit. It was also stated in paragraph 2 of the written statement that defendants 3 and 4 were appointed trustees and that they were managing the affairs of the trust : In paragraph 9 of the written statement of defendants 3 and 4 it was stated that defendants 1 and 2 have misappropriated large sums of money from the trust and that the former should be allowed to realise those amounts for and on behalf of the trust. In other paragraphs of the written statement also defendants 3 and 4 have admitted that the plaint properties belong to a trust. The 5th defendant also has not denied this in his written statement. Since the allegation in the plaint that the properties belong to a family trust was admitted by the defendants in their written statements no issue was raided in the case relating to that question. Therefore, the defendants cannot be heard to say at this stage that the properties in this case do not belong to a family trust. Since the allegation in the plaint that the properties belong to a family trust was admitted by the defendants in their written statements no issue was raided in the case relating to that question. Therefore, the defendants cannot be heard to say at this stage that the properties in this case do not belong to a family trust. The further question is whether in the case of a private family trust the court has jurisdiction to frame a scheme for the management of the trust even if the trust properties are not vested in an idol or deity. 8. The view taken by the learned District Judge that it is only in cases in which the properties are dedicated to an idol or deity that the court has got jurisdiction to frame a scheme for the management of the trust is based on the decision in Bimal Krishna v. Iswar Radha Ballav (A.I.R.1937 Calcutta 338). In that case His Lordship B.K. Mukherjea, J. tried to reconcile two decisions of the Privy Council in which apparently conflicting views were taken relating to this question. The first case is Gopal Lal v. Purnachandra (AIR1922 P.C. 253) in which it was held that in the case of a private trust the provisions of Section 92 of the Code of Civil Procedure would not apply and that, therefore, the framing of a scheme by the court for the administration of the trust was inappropriate. The second case is Pramatha Nath v. Pradhyumma Kumar (AIR1925 P. C. 139). That also was a case of private trust. In that case Their Lordships of the Privy Council directed the High Court to frame a scheme for the management of the trust. In Bimal Krishna v. Iswar Radha Ballav (A.I R. 1937 Calcutta 338) which also was a case of a private family trust it was argued for the appellant that in the light of the decision of the Privy Council in AIR1922 P. C. 253 the court had no jurisdiction to frame a scheme for the administration of the trust estate. This argument was not accepted by His Lordship Mr. This argument was not accepted by His Lordship Mr. Justice Mukherjea who explained the observation of Their Lordships of the Privy Council in AIR1922 P.C. 253 in the following manner: "This observation is entitled to the highest respect and it is necessary, therefore, to look into the facts of the case closely to find out what their Lordships actually meant. It is clear from the facts set out in that judgment that in this case there was no gift to the idols but the property was given to one Udoy who was made a trustee in the legal sense of the word and upon whom were cast certain duties both religious and secular in their nature. He was to perform the worship of a certain idol with the income of a particular property and the remainder of the income was given to three people whose names were given in the will. In a case like this, where a private trust was created not of a purely religious character and the ownership of the property was vested in the trustee in the legal sense of the word, the Court could not possibly frame a scheme for the administration of the trust estate. In a religious endowment, however, where the deity who is a perpetual infant is the legal owner of the property and the Shebaits occupy the position of managers or guardians, the position is different." His Lordship also referred to the decision of the Privy Council in AIR1925 Privy Council 139 and relied on it as an authority for the position that the court has jurisdiction to frame a scheme even in the case of a private trust. In 1922 P. C. 253 the facts were these: In a will executed by a Hindu woman her grandson was directed that out of the income of a specific property he should perform the worship of the family idols. The balance of the income was to be divided between the representatives of the three branches of her own family. Their Lordships held that there was no gift of the whole property to the idols and that a trust was created under the will. The balance of the income was to be divided between the representatives of the three branches of her own family. Their Lordships held that there was no gift of the whole property to the idols and that a trust was created under the will. Apart from observing that in the case of a private trust the provisions of section 92 of the Code of Civil Procedure would not apply their Lordships did not discuss the question whether in the case of a private trust the court has or has not got jurisdiction to frame a scheme for the administration of the trust Section 92 of the Code of Civil Procedure applies only to public trusts and not to private trusts. But the fact that section 92 will not apply to a private trust does not necessarily mean that the civil court has no jurisdiction to settle a scheme for the management of a private trust. In AIR 1925 P. C. 139 a Hindu established and consecrated an idol in his family house and in the will executed by him certain funds were given to his widow who was directed to defray the expenses of the idol's sheba and other religious festivals and ceremonies. Their Lordships held thus in that case: "A Hindu idol is, according to long established authority, founded upon the religious customs of the Hindus, and the recognition thereof by Courts of Law, a juristic entity. It has a juridical status with the power of suing and being sued. Its interests are attended to by the person who has the deity in his charge and who is in law its manager with all the powers which would, in such circumstances, on analogy, be given to the manager of the estate of an infant heir." In the decree that was passed their Lordships directed that a scheme should be framed for the regulation of the worship of the idol. Their Lordships did not take the view that it is only in cases in which properties are gifted to an idol and in which the idol can be said to be the owner of the properties that a scheme can be framed by the court for the management of the properties and for regulating the worship of the idol. Their Lordships did not take the view that it is only in cases in which properties are gifted to an idol and in which the idol can be said to be the owner of the properties that a scheme can be framed by the court for the management of the properties and for regulating the worship of the idol. It will thus be seen that the decision of the Privy Council in AIR1922 P.C. 253 and in A.I.R. 1925 P.C.139 do not support the position that the court has got jurisdiction to frame a scheme for the administration of a private trust only in cases in which properties are dedicated to an idol or deity. The observation of His Lordship Mukherjea J. in 1937 Calcutta 338 cannot be taken to be an expression of opinion that in the case of a private religious trust in which properties are not vested in an idol or deity the court has no jurisdiction to frame a scheme for the management of the trust. As stated already, His Lordship was only trying to reconcile the two decisions of the Privy Council referred to above. 9. The leading case on the question whether the court has got jurisdiction to settle a scheme for the management of a private trust is Manohar Mukerjea v. Raja Peary Mohan Mukerjee (24 Calcutta Weekly Notes 478) in which Asutosh Mukerji, J. discussed the question at length pointing out the distinction between the English law and the Indian Law relating to trusts. His Lordship observed thus in that case: "Under the law of England it is well settled that if a private person is the founder of a charitable corporation then he and his heirs are the visitors and it is only where the line of heirs of a private founder has become extinct or where they cannot be found or are incompetent to act that the visitatorial power devolves on the Crown: Attorney General v. Gaunt [1790] 3 Swanston 148] and Attorney General v. Dedham School [1856] 223 Beav. 350]. 350]. We are of opinion that on the analogy of this well-recognised principle, the view may be maintained that in respect of a debutter in this country, the founder or his heirs may invoke the assistance of a judicial tribunal for the proper administration thereof on the allegation that the trusts are not properly performed; and the case is strengthened when the management would, under the terms of the trust, vest in the plaintiff as the founder's heir on a vacancy caused by the removal of the actual incumbent for misconduct.. Deddia v. Durganund [22 W. R. 97 [1874], Kazi Hassan v. Sagan Balakrishna [24 Bombay 170], Prosanna v. Kunja Behari [1864] W. R. 157] and Ram Narayan v. Ramoon [23 W. R. 76 [1874]." It may be observed that this decision was confirmed in appeal by tie Judicial Committee. The facts of the case in 24 C. W, N. 478 are more or less similar to those of the present case. In that case a Hindu by his will dedicated certain properties for the sebha or worship of two deities established by him, the annual celebration of Doorga Pooja, Sradha of ancestors and other pious acts such as the maintenance of childless widows, the construction of roads for public use and excavation of tanks. The testator also provided for the order of succession to the office of Shebait among his own descendants. In the present case the object of the trust is the worship of certain family deities, the performance of certain festivals, the supply of butter milk to the devotees during a particular festival and the offering of garlands to the deity. In 24 Calcutta Weekly Notes 478 Mukerji J. did not seek to make any distinction between cases in which there is a gift of properties to the idol and those in which there is no such gift. This case was cited with approval in AIR1937 Calcutta 338. In the latter case also the nature of the trust was more or less the same. Three brothers installed two deities close to their residential house. With the money contributed by them certain immovable properties were to be purchased and the income from them was to be utilised for meeting the expenses of the worship of the idols. In the latter case also the nature of the trust was more or less the same. Three brothers installed two deities close to their residential house. With the money contributed by them certain immovable properties were to be purchased and the income from them was to be utilised for meeting the expenses of the worship of the idols. The three brothers were made joint shebaits with rights of survivorship amongst them and after the death of the last survivor the shebaiti right was to devolve per stirpes upon the heirs of the three founders. It was held that in the case of such a trust a scheme could be framed by the court for the administration of the trust. Other decisions of the Calcutta High Court in which 24 Calcutta Weekly Notes 478 was followed are Rabindranath v. Chandi Charan (AIR1932 Calcutta 117 and (Lalit Mohan v. Kishori Mohan (AIR1949 Calcutta 288). In the first case Mullick and Guha JJ. held thus: "It appears that according to the admitted and established facts in the present case the trust that was created was a private defaulter trust. Now the question is whether in a case of this nature, namely, a case of private trust like the present one, a civil court has got any jurisdiction to frame a scheme for the management and administration of the defaulter property. That a civil court has such jurisdiction would appear clearly from the observations of the learned judges in the case of Manohar Mukherjee v. Raja Peary Mohan Mukherjee [24 C.W.N. 478]." This case was also cited with approval in AIR1937 Calcutta 338. 10. Reference may also be made in this connection to the following passage in the Hindu Law of Religious and Charitable Trusts by B.K. Mukherjea (Tagore Law Lectures) page 460: "We will now deal with suits and judicial proceedings in relation to breach of trust in regard to religious and charitable trusts of a private nature. In Indian law, as you know, there can be a private religious institution the aim of which is to benefit a determinate body of individuals, as for example, the members of a family, The commonest illustration of this form of trust is a family or private debutter. In Indian law, as you know, there can be a private religious institution the aim of which is to benefit a determinate body of individuals, as for example, the members of a family, The commonest illustration of this form of trust is a family or private debutter. The suits relating to such private trust are not regulated by any statute as in the case of publics trusts; they are governed entirely by the general law of the land which prescribes the remedies for enforcement of civil rights. In a private or family debutter, the beneficiaries are a limited and defined class of persons, viz., the members of the family. If the trustee or shebait is guilty of mismanagement, waste, wrongful alienation of debutter property or other neglect of duties, a suit can be instituted for remedying these abuses of trust. The suit could be for the removal of the trustee with a prayer for accounts as ancillary to the removal. It would lie for a declaration that any alienation of the debutter property is not binding on the deity or for recovery of possession of the property thus wrongfully alienated. A suit can also be filed for settlement of a scheme for the purpose of effective carrying out of the trust." The learned author has extracted the observations of Asutosh Mukherji, J. in Manohar Mukherji V. Raja Peary Mohan Mukherji (24 Calcutta Weekly Notes 478). He has also quoted the observations in Bimal Krishna v. Iswar Radha Ballav (1937 Calcutta 338). 11. The latest decision on the question is that of the Madras High Court in Narayanaswami Naidu v. Balasundaram Naidu (1952) (1) M. L. J. 487). In that case Govinda Menon, J. has discussed at length the case law on the point. The learned judge observes thus at page 491: "The only other point which remains for consideration is one which arose during the course of the arguments, viz., whether a suit for removing a trustee of a private trust and for the framing of a scheme is maintainable. There is no doubt that Section 92, Civil Procedure. Code, in terms does not apply because that relates specifically and definitely to the case of public trusts. There are no provisions in the Indian Trusts Act for the framing of a scheme and that Act does not apply to private religious endowments. There is no doubt that Section 92, Civil Procedure. Code, in terms does not apply because that relates specifically and definitely to the case of public trusts. There are no provisions in the Indian Trusts Act for the framing of a scheme and that Act does not apply to private religious endowments. The distinction between a public trust and a private trust is not so clearly marked in England as in India. At page 11 of Tudor on Charities, 5th Edition, we find the following statement: "In the first place, it may be laid down as a universal rule that the law recognises no purpose as charitable unless it is of a public character. That is to say, a purpose must, in order to be charitable, be directed to the benefit of the community or a section of the community". At page 180, the learned author observes: "The charitable jurisdiction of the Court does not arise where the gift is not charitable in the legal sense as, where it is for private charily". This rule is based upon the doctrine of the rule against perpetuities. We find in Halsbury's Laws of England, Vol. 4, 2nd Edition, at pages 346 and 347 that at present in England there is general jurisdiction to enforce trusts. That is to say, the High Court has jurisdiction to enforce the observance or redress breaches of all trusts, charitable as well as private. The jurisdiction in the case of charities is more extensive than in the case of private trusts." At page 347, the learned author observes: "After some conflict of judicial opinions the rule is now established that, wherever there is a gift to charity and the donor either created or intended to create a trust, whether the, objects are specified or indefinite, the Court has jurisdiction to enforce the execution of the trust, and, if necessary, to apply the gift to charitable purposes by means of a scheme." The learned judge then observes thus at page 492: "There used to be some divergence of opinion so far as the Indian Courts are concerned, but it seems to us that the more prevalent and satisfactory view is that even in the case of private charities Courts can interfere to see that no breaches of trust are created. So far as the members of the family are concerned, who are interested in the trust, if the trustee for the time being mismanages or acts in breach of trust, it is a civil right which is infringed and under Section 9 of the Civil Procedure Code they are entitled to seek redress in Court for the purpose of remedying the mischief." It was also held in that case that even if the trust is not of a purely religious character and the ownership of the trust property is vested in the trustee the court has jurisdiction to settle a scheme for the administration of the trust. 12. The above discussion of the case law leads to the conclusion that in the case of a private family trust the Court has got jurisdiction to frame a scheme for the management of the trust and that this jurisdiction is not limited to cases in which properties are gifted to an idol or deity. We, therefore, hold that the Court has got jurisdiction to frame a scheme in this case. 13. It was next argued for the respondents that no case has been made out by the plaintiffs in this case justifying the exercise by the court of its jurisdiction to frame a scheme for the management of the plaint trust and that the plaint does not contain any allegations to the effect that the provisions in Ext. A for the management of the trust are in any way unsatisfactory or incomplete. This however, is a question to be decided by the Court below The learned judge has not gone into that question and we do not propose any opinion on that at this stage. 14. In the result, we set aside the judgment of the Court below and remand the case to that court for fresh disposal according to law and in the light of the observations made above. The costs of this appeal will be costs in the cause except the court fee paid on the memorandum of appeal which will be refunded to the appellants. 15. The appeal is allowed in the manner stated above. Remanded.