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Judgment
The appellant in this second appeal is the 1st defendant and he was sued by the plaintiff for the recovery of possession of the suit land as a
tenant thereof. It is clear that the land pertained to the Kallur Devaswom as the trustee of which the original plaintiff Kappiyar Swamiyar instituted
the action. The plaintiff described himself also as the Muppil Sthanam in the Nadhuvil Madham. It is admitted before us that shortly after the
institution of this suit the Durbar of the Maharajah of Cochin removed the plaintiff from his office as trustee of the Nadhuvil Madham. The Durbar
also purported to appoint in his place in the said Madham one Azhakapra Swamiyar who is now the 6th respondent in this second appeal. He was
added as respondent in the lower Appellate Court not on any application by him under Rule 10 of Order XXII of the CPC or any other provision
of law, but so far as we are able to see by the Court itself auo motu. The learned District Judge appears to have made such an order because of
his having in connection with some other litigation come to the conclusion that the said Azhakapra Swamiyar had succeeded not only to the
trusteeship of the Nadhuvil Madham, but also to the trusteeship of another Devaswom in respect of which the plaintiff had been the trustee. It is
clear that the learned District Judge made the order only because of the view taken by him that his removal from the one involved his removal from
all the rest. But we find on appeal to the High Court this Court set aside that order in the other litigation holding that, having regard to the usage of
the particular institution concerned there, the removal of the Kappiyar Swamiyar from his trusteeship of the Nadhuvil Madham did not operate as a
removal of him from the trusteeship of the particular Devaswom concerned. A decree having been passed in favour of the plaintiff it has on this
second appeal been contended by the learned Counsel for the appellant that the only point proposed to be raised by him was that it was
incompetent to the original plaintiff Kappiyar Swamiyar to continue the action after his removal from office and that the decree should have been
passed only in favour of the present 6th respondent. No doubt, it has not been determined in these proceedings whether or not the original plaintiff
Kappiyar Swamiyar has ceased to be the trustee of the Kallur Devaswom by reason of his removal from office as the trustee of the Nadhuvil
Madham. If it were necessary it could be determined only by determining the usage with regard to this particular Devaswom, and if such a question
were required to be determined for the disposal of this second appeal we should have been constrained to remand the question for determination
by the lower Courts. But in the view we have taken of the case, it is unnecessary to come to any finding with regard thereto. The 6th respondent,
Azhakapra Swamiyar, has not as already pointed out come in as a party to the suit on any application by him under Rule 10, Order XXII asking
the leave of the Court to continue the suit as the person on whom the trusteeship has devolved during the pendency of the suit. We must, therefore,
take it that the suit is still only by the original plaintiff, and the only question that arises in that view is whether a trustee who files an action which is
properly framed and constituted at the time of its institution, ceased to be entitled to maintain and continue the suit merely by reason of his removal
from office during the pendency of the suit. No doubt, the language of Rule 10 with regard to that matter is not as explicit as might be desired, but
it seems to us that the expression ""by leave of the Court"" in that rule indicates clearly the real intention of the Legislature to have been that it was
merely optional on the part of the assignee to apply to continue the suit and it is also in the discretion of the Court to allow him to do so or not. No
doubt, the word ""continue"" is the word used, and that word may indicate under certain circumstances the proceedings stopping otherwise. But
there is no indication that such was the real intention of the Legislature. If it had been the real intention of the Legislature that there should be a sort
of abatement on any such assignment or devolution taking place, it is inconceivable that the Legislature should have used such an expression as ""by
the leave of the Court"" and there is also no doubt that, if such had been the intention, provision would have been made for the assignee being
brought on the record and provision made also for default in doing so as has been made in the case of insolvency or in the case of the death of a
party. It is, however, unnecessary to discuss the question at any great length. The question is really covered by distinct authority. We need only
refer to the decision of Rai Charan Mandal v. Biswanath Mandal 26 Ind. Cas. 410 : 20 Cri.L.J. 107. We may also refer to the observations in the
case of Sivakasi Viswanathaswami Devasthanam and Others Vs. Koodalinga Nadan and Others, and in Thirumalai Pillai and Others Vs.
Arunachella Padayachi and Others, . Our attention has been called by the learned Counsel for the appellant to the decision of their Lordships of
the Privy Council in AIR 1927 57 (Privy Council) but that decision has no application to the present case because there, though the original party
continued on the record, his assignee was also allowed to come in under the provisions of the CPC and thereafter it is clear that, having regard to
the terms of the rule, he would be the person entitled to continue all further proceedings. The case in Policherla Veeraraghava Reddi Vs. Cherla
Subba Reddi (died) and Others, is also to similar effect. It follows, therefore, that there was no disability on the part of the original plaintiff to
continue the action merely because during the pendency of the suit his office ceased. In all such cases the policy of the law is that the decree that
may be obtained by him may enure for the benefit of the trust itself and may be enforced as against him by his successor if there be one. In the
result the second appeal fails and is dismissed. We consider it also necessary in this case, to pass an order formally striking out the 6th respondent
from the record. It is clear that he was made a party to the appeal by the lower Court merely acting on the conclusion arrived at by the learned
District Judge in some other proceeding. In any case, such striking out would really be in the interests of the 6th respondent himself because he can
enforce his rights, if any, only in separate proceedings. His name, therefore, will be struck out from the record and there will be no order as to his
costs. The memo, of objections filed by him is also dismissed. There will be no order as to costs thereof. The second appeal is dismissed with
costs.