S. K. MAL LODHA, J. - (1.) THIS civil miscellaneous appeal has been preferred by Manoharlal, Parshava Chand and Prakash Chand sons of Roshanlal (defendant No. 1) under order XLIII, rule 1 (1) C. P. C. against the order of the learned Senior Civil Judge, Udaipur, dated April 13, 1968.
(2.) THE facts leading to this appeal may briefly be noticed. THE plaintiffs Chattar Singh, Sheodan Singh, Himmat Singh and Roshanlal instituted a suit for rendition of accounts under section 92 C. P. C. against the members of Shri Jain Swetamber Prabhu Pujak Dharmsala Committee (hereinafter referred to as 'the Committee') a registered Institution of the former Mewar State in connection with the trust property relating to a Jain Dharmsala. THE suit was instituted in the court of District Judge, Udaipur on November 11, 1955 after obtaining sanction from the Advocate General of Rajasthan. It is necessary here to mention that the Advocate General accorded permission to the plaintiffs to file a suit against the whole body of the Managing Committee of Shri Jain Swetamber Prabhu Pujak Dharmshala Committee for rendition of accounts under section 92 C. P. C. vide his order dated September 5, 1955. While according permission he specifically noted that from the trend of accounting between the Dharmsala and the firm. Roshanlal Chatur cannot be accused of malafides in charging the interest from the Dharmsala on the previous running accounts in the Samvat year 2003. It was also mentioned that Roshanlal Chatur and his predecessors had rendered substantial service in the cause of Dharamsala by supplying the neded funds without which there would perhaps have been serious obstacles in the way of the construction of the Dharmsala. According to the Advocate General the adjustment of Rs. 16127. 9 annas on account of interest after the partners of the firm had declared that they had given up their claims of interest against the Dharmsala raised a serious legal issue as to whether Roshanlal Chatur was legally justified in doing so even though the declaration had been made in the proceedings to which the Dharamsala Committee was not a party. In these circumstances he concluded that it is desirable in the case of this Public Trust that the matter should be submitted before the competent Court for its adjudication, THE following extract from the order of the Advocate General dated September 5, 1955 needs to be quoted: " THE suit should however, be filed against the whole of the Managing Committee including all its members and not against Shri Roshan Lal Chatur and Shri Manoharlal Chatur only because the responsibility for the maintenance of accounts is of the whole committee and not of the two individuals members only, particularly when it is alleged on behalf of the non-applicants and also substantiated to a certain extent that they have been singled out by the applicants Shri Veer Chand Siroya and Shri Chatersingh Nahar on account of the grudge and malice. . . . . . . . . " In the plaint in para 16 rendition of accounts was clamed against all the members of the Committee. After trial of the suit the learned Senior Civil Judge, Udaipur passed a preliminary decree for rendition of accounts on September 6,1960 against defendant No. 1 Roshanlal Chatur ordering him to render accounts to the plaintiffs from the year Samvat 1965 upto that date and Shri Mangilal Khabia was appointed Commissioner for the purpose. An appeal was filed against the said prelimmary decree dated September 6, 1960. But as the defendant No, 1 Roshanlal Chatur had died at Udaipur on February 5, 1964 and his legal representative were not impleaded in time, (he appeal was dismissed on July 23, 1955 as having abated. On May 2, 1964 an application was moved under O. XXII, r. 4 and 10 C. P. C. praying therein that the appellants (three sons of Roshanlal Chatur and Smt. Umrao Bai) maybe substituted in his place. This application was resisted on the ground that heirs of Roshanlal Chatur were not bis legal representatives nor so to be substituted in the place of the deceased Roshanlal Chatur as it was a suit under section 92 C. P. C. It may be mentioned here that Smt, Umrao Bai also died on December 16, 1964 and on April 13, 1965 an application was filed for bringing her legal representatives on record and they are respondents Nos. 9 (a) to (j) in this appeal. The learned Senior Civil Judge accepted the application by his order dated April 13, 1968. Being dissatisfied with the order of substitution, the appellants have preferred this appeal as aforesaid. I have heard Mr. H. M. Parekh, learned counsel for the appellant and Mr. D. L. Mehta for Mr. S. M. Mehta, learned counsel for respondents Nos. 4 and 7 and have also gone through the record of the case Learned counsel appearing for the appellants argued that the suit in which the preliminary decree was passed was for rendition of accounts. The permission was granted by the Advocate General under section 92 C. P. C. and the court below should not have gone beyond the permission. As member of the Committee, Roshanlal Chatur was directed to render accounts to the plaintiffs from the year Samvat 1965 upto the date of the preliminary decree and this liability came to an end with his death. He further contended that the heirs of Roshanlal Chatur namely the appellants cannot be asked to render accounts in as much as it is only the succes or-in office or the Managing Trustee of the Committee. who can be asked to render accounts. Mr. Parekh drew my attention to the Division Bench judgment dated November 19, 1959 passed in D. B. Civil Misc. 1st appeals Nos. 34 and 38 of 1956 wherein while disposing of the application for the appointment of a receiver during the pendency of the suit the learned Judges observed as under: " In the first place, the suit is merely a suit for rendition of accounts. We have had the benefit of reading the order of sanction given by the Advocate General for the institution of the suit and we find that in granting the sanction he took note of only one item in the account. That was with regard to appropriation of a certain amount of interest, otherwise there is nothing to show that there was any case of misfeasance or misappropriation of the income of the trust property found therein. " In support of the proposition that the court while deciding the application, could not go beyond the permission accorded by the Advocate General, he placed reliance on two decisions of the Allahabad High Court in Roshanlal vs. Banwari Lal (1) and Umashanker vs. Saligram (2 ). He also invited my attention to Mr. Moti Bala Debi vs. Styanand Tirtha Swami (3), Kubrabi vs. Seth Shuberati (4), Mt. Hasinabai vs. Shrikisandas Tikamdas (5), Bishambhar Nath vs. Raghunath Prashad Sharma (6) and Suraj Narain vs. Mangilal (7) to show that the right to render accounts would not survive against the legal represea-tatives of the deceased trustee as right to demand accounts from a trustee in a personal right available against him and dies with him.
(3.) MR. D. L. Mehta, learned counsel for the respondents, contended that the appellants, who are heirs of deceased Roshanlal Chatur, (defendant No. 1) against the preliminary decree for rendition of accounts was passed, are liable, as they are legal representatives of the deceased Roshanlal Chatur within the meaning of section 2 (11) C. P. C. In this connection he invited my attention to Roshanlal Kunja Mal vs. Kapur Chand (8 ). MR Mehta also submitted that the preliminary decree dated September 6, 1960 was passed against defendant No. 1 Roshanlal Chatur in his personal capacity and, therefore, his legal representatives are liable. After making reference to sections 15, 19 and 63 of the Indian Trust Act, 1962 (hereinafter referred to as 'the Act'), MR. Mehta submitted that the heirs of Roshanlal Chatur cannot escape the liability of rendering accounts in pursuance of the decree passed against him. Reliance was placed by him on Maharaja Srish Chandra Nandy vs. Supravat Chandra (9), Purushottam Vasudeo vs. Ramkrishna Govind (10), Bhusan Chandra Mondal vs. Chhabimoni Dasi (11), Prafulla Kumar Mullick vs. Sm. Firoza Sundari Dassi (12), Girijanandini Devi vs. Bijendra Narain Choudhary (13) and R. S. Shri Ram Parshad vs. Smt. Chhano Devi (14 ). As to who is the legal representative learned counsel made reference to Brijkishore Singh vs. Sm. Nasuk Bai (15 ). Before examining the rival contentions raised by the learned counsel for the parties, it is necessary to read the relevant provisions of law hearing on the question which I am called upon to decide in this appeal. Section 2 (11) defined legal representative as follows: " (11) 'legal representative' means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. " O. XXII R. 4 provides for procedure for substitution in case of death of one of several defendants or of sole defendant. For the application of this rule five conditions are necessary (i) there must be a suit, (ii) one of the defendants must have died, (iii) the death of the defendant must be pending the suit, (iv) the suit must be pending in a court having jurisdiction to entertain it; and (v) the right to sue should survive but not against the surviving defendants alone. Thus, if the right to sue does not survive at all, the rule will not apply. O. XXII, r. 10 lays down that whenever there is an assignment, creation or devolution of any interest during the pendency of the suit, then by leave of the court the suit can be continued by or against the person to or upon whom such interest has come or devolved. ;