P D U VATAKKEPAT KAVILAKATH Vs. TPRAMA PISHARODY

JUDGEMENT

(1.) The deceased first plaintiff and Ichikutti Pisharasiar are the assignees of Exhibit A. Exhibit A is a kazhaka kanom document executed in favour of Gopal Pisharody and Narayani Pisharasiar by the ancestors of defendants Nos. 1 and 2 and the 3 defendant who are the trustees of a devaswom. The document recites that a sum of Rs. 100 was received by the trustees from Gopal Pisharody and Narayani Pisharasiar. It was while these two were performing the kazhakam service in the temple as deputies of one Chovallor Variar under some arrangement made with him that the trustees of the devaswom persuaded them to advance a kanom of Rs. 100 as security for the due performance of the kazhakam and executed kazhaka kanom deed, Exhibit A, in their favour. The deceased first plaintiff and his sister obtaining the assignment of the kazhakam service as mentioned above carried on their duties in the temple for above 16 years. In the meanwhile, the rights of the family of Chovallor Variar to perform the kazhakam service in the temple were established in a. litigation between the Variar and the trustees. In that litigation it was found that the entrustment of the kazhakam service to the assignors of the present plaintiffs was a fraudulent one intended to defeat the rights of Chovallor Variar. After establishing his rights Chovallor Variar obtained a decree against the deceased first plaintiff and Ichikutti Pisharasiar and in execution of that decree, the kazhakam service was surrendered and the plaintiffs were deprived of the possession of the building they were in occupation. In consequence of this, they have instituted the suit out of which this second appeal arises praying that a decree may be passed directing the defendants personally and by means of the devwswom properties to pay them the amount which was received as kazhaka kanom on behalf of the devaswom under Exhibit A. It has been found by the Courts below that the plaintiffs are bona fide transferees who have paid consideration for the assignment, Exhibit C, of the right to perform the kazhakam service which their predecessors obtained under Exhibit A from the trustees of the devaswom. Both the lower Courts have decreed the plaintiffs claim.

(2.) The learned Vakil for the respondents takes a preliminary objection that the plaintiffs suit is one of a small cause nature for the recovery of a sum below Rs. 500 and hence no second appeal would lie to the High Court; Mr. Ramachandra Iyer on behalf of the appellants contends that, under Art. 18, Schedule II of the Provincial Small Cause Courts Act, IX of 1887, the present suit is exempted from the cognizance of a Court of Small Causes. Under Art. 18, a suit relating to a trust including a suit to make good out of the general estate of a deceased trustee the loss occasioned by a breach of the trust, and a suit by a co-trustee to enforce against the estate of the deceased trustee a claim for contribution are excepted from the jurisdiction of the Court of Small Causes. The last part of the Art. is admittedly inapplicable to the facts of the present case. The question, therefore, for consideration is whether the present suit is a suit relating to a trust, or a suit to make good out of the general estate of a deceased trustee the loss occasioned by a breach of the trust. From the summary given above of the essential facts of the case, it seems clear that the suit is one for the recovery of money against the defendants personally and from the devaswom properties. In order to decide the question raised in the suit, it may be necessary to determine whether the trust property is liable, but this cannot make the suit one relating to atrust. See Venkata-challapathy V/s. Kanagasabhapathia (1910) 33 Mad. 494: That was a suit, as pointed out in Krishnayyar V/s. Soundraja Ayyangar (1898) 21 Mad. 245, by a trustee against his predecessor-in-office for loss to the cestui que trust by the defendant's negligence for breach of trust. It may be that Exhibit A was executed fraudulently by the trustees to defeat the rights of Chovallor Variar, but on account of that finding in a suit to which the present plaintiff were not parties. I do not think it can be said that the cause of action for the present suit is a breach of trust by the trustees. The present plaintiffs have paid consideration for the assignment of the Kazhakam service, and since they were deprived of their rights, they are asking for a refund of the money from the defendants personally and from the devaswom funds. I do not think that the fraudulent motive of the trustee in executing the document under which the present plaintiffs now claim the refund of the money can make the present suit one relating to a trust. If it is a suit not relating to a trust, it is argued that this must be considered as a suit to make good out of the general estate of the deceased trustee the loss occasioned by a breach of trust. The allegations in the plaint clearly show that the suit is against the trust and for the recovery of the money from the trust funds, not against the general estate of the deceased trustee for loss occasioned by a breach of trust. The plaintiff's suit is one for the recovery of a sum of money below Rs. 500 from the defendants personally and from out of the devaswom funds. In my opinion, this is clearly a suit of a small cause nature and is not excluded from the cognizance of the Small Cause Courts under Art. 18 of the Second Schedule. I allow the preliminary objection.

(3.) After the close of the arguments it was stated by the learned Vakil for the appellants thut his second appeal might be treated as a civil revision petition. No alternative civil revision petition has been filed and obviously no question of jurisdiction arises in this case.