1. The parties to this suit are members of the Cutchi Dassa Oswal Bania caste. The evidence shows that the present litigation is the result of two factions in the caste, one headed by Vassonji Tricumji and the other by Jethabhoy Nursey, one of the defendants in this suit. This is not the first time that the caste has been divided into two factions and been launched into litigation. It is the third time that this Court is called upon to deal with differences among its members. The first time its affairs came up before this Court was in 1881, when a suit was filed by some of its members for the removal of the trustees of some of its religious and charitable trusts. See Thaokersey Dewraj v. Hurbhum Nursey ILR (1883) 8 Bom. 432: and the decision of Scott J. therein. The plaintiffs in that suit succeeded, the Court having removed the trustees and ordered a scheme to be prepared for the future administration of the trusts. That decree, having been taken up in appeal, was varied by the appellate Court, consisting of Sargent C.J. and Bayley J., who declined to remove the trustees, holding that though they had been negligent in the performance of their duties, there was no proof of misconduct to justify their removal. The appellate Court also held, as to the scheme sanctioned by Scott J., that since the trusts belonged to the caste, it was undesirable to interfere with their liberty to direct how the funds of the trusts should be expended. I cannot help regretting-and the regret is shared by Mr. Lowndes and the learned Advocate-General, counsel for the plaintiff and the defendants respectively-that a scheme was not sanctioned which would have probably put an end to factions in the caste, saved money that is being now wasted on wearisome litigation and spared to the caste all the bitterness which has been dividing its attention and energy.
2. The plaintiff, Champsey Cooverji and the defendants were appointed in January 1905, trustees of the Derasar and the Sadharan Fund of the caste. On the 19th of August 1905, two trust-deeds (Exs. B and C) were executed to give effect to that appointment.
3. The plaintiff now complains that the defendants, his co-trustees have wrongfully excluded him from the trusts and he asks for a declaration of his trustee-ship and for an injunction to restrain the defendants from denying to him, or otherwise interfering with, his right as a trustee.
4. The defendants, in answer, maintain that the plaintiff has been removed by the caste from the office of trustee, that the caste has sole and exclusive power to remove him and that the question being a caste matter, this Court has no jurisdiction to give to the plaintiff the relief he seeks.
5. The first question is whether the caste has removed the plaintiff from the office of trustee.
6. The defendants' case, shortly slated, is that at a meeting of the caste, held on the 31st of July 1905, a resolution was passed ' delegating all the powers of the caste to its Managing Committee; that the proceedings of that meeting were confirmed at a meeting of the caste held on the 20th of August 1905; that, in accordance with that resolution, the Managing Committee duly called upon the plaintiff to appear before them and show cause why he should not be removed from the office of trustee on the ground that he had ceased to be a member of the caste by acting contrary to its rules and interests ; that, the plaintiff having failed to appear, the Managing Committee removed him from the office on the 6th of October 1905; and that the caste has ratified the action of the Managing Committee at a meeting of the Mahajan (caste) held on the 28th of October, 1905.
7. It is proved by Khimji Hirji Kayani, who was the Secretary of the Mahajan at the time, that a meeting of the Mahajan was held at the residence of the defendant, Jethabhai Nursey, on the 31st of July, 1905 ; but I am not at all satisfied upon the evidence that that meeting had been duly convened and was held in accordance with the rules of the caste. The rules (Ex. 14) require that a short statement of the business to be transacted at it shall be made known by a notice on the board one day before such meeting; that, on the day the meeting is to be held, the Secretary shall, according to the usual practice, get the appointed time as well as place announced to the caste through a crier, or shall make them known by an advertisement ; and that no business other than that so announced shall be transacted at the meeting (see Rules Nos. 11 and 6 in Ex. 14). The Secretary admits that the rules were disregarded in July 1905-that, in fact, they have never been strictly enforced. According to him, a proper notice of the meeting of the 31st of July was not given; the meeting had first been announced to be held at the temple at 7-30-P.M.; but the defendant Jethabhai put up a notice at 12 p.m. on the 3lst that it would be held at his residence. ''It is true,' says the same witness, ' that a proper notice of the change of the meet- ing was not given. ' And then as to the business to transact which the meeting had been convened, he states that the defendant Jethabhai's notice was in effect that the meeting was for the purpose of informing the Mahajan of all that had occurred in relation to the negotiations which had been going on for a reference to arbitration of the disputes between the two factions in the caste. He adds : ' So far as I remember, there was nothing else in that notice. I attended the meeting knowing that it was to be held for the purpose of considering what fresh steps should be adopted for bringing about peace as all previous steps had failed. ' If the meeting had been called to delegate all the powers of the caste to the Managing Committee, as re' quested by a memorial of 750 members of the caste, that busi. ness ought to have been duly announced beforehand in accordance with the rules, but that was not done. So far from that having been done, the meeting was convened at the temple with the professed object of informing the caste of what had been done in the matter of the peace negotiations. To quote again from the evidence of the same witness, 'till the morning of the 31st July-till about 9 a.m.-it was understood in the caste that the only thing to be done at the Mahajan meeting to be held that day was to get authority to arbitrate'. The defendant Jethabhai, a few hours before the meeting, put up a notice on the board at the temple, changing the place of the meeting ; and having had it held at his own residence, he had the resolution passed, transferring all the powers of the caste to the Managing Committee. I am unable upon the evidence to find that this was a resolution of the caste, binding upon all its members.
8. As to the minutes of the so-called Mahajan meeting held on the 31st of July having been adopted at a meeting of the caste on the 20th of August 1905, I do not think that the confirmation of the minutes can give the resolution any validity, if the meeting, at which it was passed, was itself not a properly and legally convened meeting of the caste. The Secretary is not prepared to deny that the meeting held on the 20th of August was simply for the bidding in maunds of ghee. He cannot suggest that the notice convening the meeting gave intimation of any other business to be transacted at it. It is true that the plaintiff was present at this meeting but he in a way protested against the resolution passed on the 31st of July and his con-' duct in no way implied acquiescence in the validity of the meeting at which that resolution was passed.
9. The Managing Committee, no doubt acting upon that resolution, removed the plaintiff from the office of trustee on the 6th of October 1905 and it is also proved that the Managing Com-mitte's action was ratified by the caste at its meeting held on the 28th of October. But this meeting, again, of the 28th of October, was called for no other purpose than that of taking steps to honour H.R.H. the Prince of Wales on his arrival at Bombay. That is established by the evidence of the Secretary of the caste. He states that, so far as he knows, no notice had been given that the question of upholding the Managing Committee's resolution, would be brought before the meeting. He cannot suggest that the notice mentioned any business other than that connected with the visit of the Prince of Wales.
10. It was contended that, apart from the resolution of the 31st of July, the Managing Committee had power to deal with and dismiss the plaintiff under the rules of the caste. But the only rule that is relied upon is rule No. 8, under the heading of Mahajan, which runs as follows.-
If any person or family whatever of the Mahajan be found to have committed any offence whatever concerning the caste then such a person or family shall be called in (before) the meeting of the Managing Committee for (his or their) inquiry. And after giving them ample opportunity to make (their) defence if the said Committee on an adequate consideration of all the matters should find any (of them) guilty then they will subsequently be duly punished with the consent of Mahajan. And a note in respect of snch a punishment will be taken in the Minute books. And as to those on whom the punishment of excommunication may have been paused, an announcement to that effect in relation to them will be made to the caste through a crier. And such information will be given (? sent) by means of letters to (this) country (or any other) foreign country where people of our caste may be residing. And his name will be struck off from the list of (the members of) the caste, owing to which all the members of the caste will not be able to associate with (take part in) the good or bad occasions at the place of that person or family. And they will not be allowed to associate (with them on such occassions). And such guilty person or family shall be deemed to have forfeited (his or their claim) over all the properties belonging to the caste and all other rights of the caste.
11. Under this, the Managing Committee is doubtless the delegated authority of the caste for the purpose of dealing with members who have committed any offence in breach of the caste rules, customs, or injunctions. But I do not think that, except by unduly straining the words, the conduct of a trustee of caste funds or property can be regarded as falling within the purview of a 'caste offence', properly so called. There is nothing to prevent the caste from appointing as trustee any person who does not belong to it. In his case the rule in question would obviously not apply. And if the rule is inapplicable to him, why should it apply to a trustee who is a member of the caste
12. But, even assuming that the caste has removed the plaintiff from the office of trustee, the question arises whether the caste had or has power to remove him.
13. Mr. Lowndes for the plaintiff contends that no beneficiary or truster, as such, has any right to remove a trustee and that the power of removal is vested exclusively in the Court. And in support of the contention he points to the fact that his industry and research have not enabled him to find any case either in the text-books or any of the law reports where a beneficiary or truster has been held to have the power of removing a trustee without the intervention of the Court. There is one case, however, which seems to recognise the power when it is conferred by the deed of trust. In Pepper v. Tuckey (1844) 2 Jo & Lat. 95, there was a deed of trust relating to a marriage settlement. It contained a clause expressly empowering the cestui que trust, the wife in that case, to change the trustees appointed by the deed and appoint other fit and proper person or persons to supply their place. In exercise of the power so conferred, the wife removed one of the trustees, appointed a new man in his place and called upon the former to transfer the property to the latter. The old trustee having refused, she applied to the Court to direct him to transfer the property. The Lord Chancellor in his judgment described the power given by the deed to the cestui que trust to remove any of the trustees as 'a very unusual power to appoint trustees, authorising the wife to change a trustee whenever she should think proper'; but he said that 'she had a right to do' that. He, however, rejected the application upon the ground that the trustee had acted properly and that the wife had exercised the power unreasonably. The principle to be deduced from this case is that an instrument creating a trust may confer on its beneficiaries the right to remove a trustee appointed under it and appoint a new one in his place, but even then the power must be exercised reasonably; and the Court will not uphold the removal unless it is satisfied that the power was exercised for the benefit of the trust and not in a capricious manner.
14. In the present case, the deeds of trust (Exs. B and C), upon which the right of the plaintiff as trustee is founded, give the ' caste no power of removal in express or implied terms. It is in evidence that before those deeds were executed it had been intended to insert a clause in each of them, conferring that power on the caste; but at their execution it was deliberately omitted. (Vide Ex. 12). That evidence, however, cannot be of avail to the plaintiff for the purpose of construing the deeds. The intention of the parties thereto must be gathered from the language they have used where the words of the deed are clear and all evidence of what occurred or what was said when the parties were in a state of negotiation is inadmissible. Here the language is perfectly clear. Both the deeds mention in express terms the cases in which the caste has power to appoint a new trustee, in place of one appointed under the deed. The power arises only when any ' of the trustees appointed by the deed dies, or goes to reside permanently out of the Presidency of Bombay, or desires to be discharged, or becomes incapable to act ' in the trusts hereof.' The express mention of these clearly excludes the right of the caste to remove any of the trustees in any other case and appoint a new one in his place.
15. But a faint attempt was made by the defendants in the course of the trial to prove that there was a usage or custom in the caste, empowering it to remove a trustee of any of its charities or funds. That attempt has, however, in my opinion failed. There is no evidence worth the name to prove such custom or usage. The learned Advocate-General seemed, if I have understood him correctly, to rely upon the decision of the appellate Court in Thackersey Dewraj v. Harhhum Narsey, but all that the appellate Court decided was that no scheme need be prepared but that the caste should be left free to direct how the funds of the trusts should be expended. The Court said nothing and expressly decided nothing as to the power of the caste, according to any usage or custom, to remove any of the trustees. If it is to be treated as an authority at all on the point, it is an authority, so] far as it goes, unfavourable to the argument of the learned Advocate General. Had there been any usage of the caste, giving it power to remove a trustee of its charitable endowments, such usage would have been pleaded then either before Scott J. or the appellate Court. In any case, the Court would have declined to remove the trustees as prayed on the ground that it was a matter for the caste, not the Court. The fact that the Court was called upon to remote the trustees ' then in existence, that Scott J. directed their removal, but that (the appellate Court, differing from him, declined to remove them on a consideration of the merits of the case, shows that the caste had no power of removal and that there was no usage conferring such power.
16. It was, however, contended before me by the learned Advocate General that the question of the power of the caste to remove a trustee of any of its charitable trusts raises a caste question, which the Court has no jurisdiction to entertain and decide.
17. A trust, charitable or otherwise, creates certain rights of property in the trustee; he is what in English law is called legal owner of the trust property. His acceptance of the trust confers on him certain contractual rights and subjects him to certain contractual obligations, which are defined by the deed of trust and which, moreover, are regulated by the law.
18. What difference can it make, if, for an individual, we substitute a collective body of individuals, called caste, as a beneficiary ortruster? In either case the trustee has a right of property; he is the legal owner of the trust property. And if in one case he is entitled to say that his beneficiary or truster cannot remove him of his own will but must get him removed by a Court of law after making out a proper case, he is entitled to say the same in the other case as well.
19. It is true that, generally speaking, our Courts have no jurisdiction in caste matters and that every caste has an autonomy with which we cannot interfere. But that rule is subject to certain exceptions. What the limits of and exceptions to the rule are I have endeavoured to show at some length in my judgment in Nathu v. Keshawji (1901) I.L.H. 26 Bom. 174.
20. But the contention that the question of the removal of a trustee of caste property by the caste that appointed him is a caste question is founded upon a fallacy. A caste has no doubt power to do what it likes for the internal regulation of its affairs and all questions relating to them are caste questions. But where a caste deals with its own property and creates civil rights in others according to law, the rights and obligations arising out of such dealing do not appertain to caste questions as such or the internal regulation of its own domestic or social affairs. They are legal rights and legal obligations, enforceable by our Courts as much as if any entity such as a private person had been a party to their creation. The fact that the caste ' happens to be a party to the creation is merely accidental.
21. A caste as owner of its funds or other property can do what it likes with them as much as an individual owner can do with his own; provided that what is done is according to law. It can sell or let or mortgage its property; and when it does enter into such transactions, it is as much subject to the laws of the land as any private person dealing with his own property. Its transactions in such cases are no more a matter of internal regulation than those of a private person. And where a trust is created, whether by a caste or by an individual, the same law applies to both. There is nothing in the judgments of the appellate Court in Thachirsey Dewraj v. Hurbhum Nursey to show that, according to its view, the question of the removal of a trustee is a caste question. What the Court held was that the caste should be at liberty to determine how the funds of its trusts should be expended. That meant that it was undesirable to fetter the discretion of the caste by a scheme of the Court as regards the mode of distribution or expenditure of the funds. The appellate Court did not hold that the caste should be at liberty to remove and appoint trustees without the intervention of the Court or that the question of their removal was a caste question beyond the Court's jurisdiction.
22. It was further argued for the defendants that, in any case, this suit was not maintainable in the absence of the caste as a party to it. This objection as to non-joinder of the caste was not taken either in the written statement or at any time before the first hearing. It was taken in fact after the evidence for the defendants had closed and in the learned Advocate-General's address, summing up their case in reply. According to Section 34 of the Code of Civil Procedure, all objections for want of parties shall be taken at the earliest possible opportunity and in all cases before the first hearing; and any such objection not so taken, shall be deemed to have been waived by the defendant. That is a sufficient answer to the contention. But, apart from that, I fail to see how the caste is a necessary or even a proper party to the suit. The plaintiff complains of no grievance against the caste; his grievance is that the defendants, his co-trustees, have excluded him from his rights as a trustee under colour of a resolution of the caste. He alleges that there is no resolution binding upon him or the defendants or the caste. His legal character being denied, he is entitled, according to Section 42 of the Specific Relief Act, to institute a suit '''against any person denying' such character. Because there are other persons than those sued, who also are denying the right, it does not follow that he must sue them all. The only ground upon which it may be urged that the plaintiff cannot sue for relief against the defendants is that, even if the defendants are restrained by an in' junction, the caste can prevent the plaintiff from acting as a trustee and that the defendants are merely acting under the instructions or directions of the caste. As was held by Jessel M.R. in Howley v. Steele (1877) L.R. 6 Ch. D. 521, ' if you are asking for an injunction, you must have as the defendant the man, who, in future, can authorise or per-mit the continuance of the nuisance and he is not here.' But here, according to my finding upon the evidence, the defendants have not been authorised by the caste to deprive the plaintiff of his legal character as trustee. And there is no evidence to show that the caste has threatened to exclude him from his right. The defendants are relying upon an authority which does not exist in fact or law. Further, even if the caste did give the authority, according to my finding again, the caste has no right to give such authority and the defendants are not justified in depriving the plaintiff of his right upon a resolution which was passed at a meeting not legally called or held and by which they are, therefore, not bound.
23. Lastly, it was maintained, by the learned Advocate-General that, as the plaintiff is suing for a declaration, which the Court can grant only in the exercise of sound discretion guided by judicial principles, the Court ought to refuse the declaration and injunction prayed for because of certain equitable considerations. But what are the equitable considerations relied upon It is said that here is one of eight trustees opposed to the rest who are acting together; that the deeds of trust provide that in the management of the trusts, the decision of a majority of the trustees shall prevail. And the learned Advocate-General asks : ' How inequitable it would be for one trustee to come into Court and ask for relief, the result of which, if granted, must be to fetter the majority ?' But the provision in the deeds was intended to apply where every trustee has acted and is allowed to act as such-not where a majority of the trustees wrongfully exclude him from acting. The ostensible ground upon which the Managing Committee removed the plaintiff from the office of trustee is that he had addressed a letter to the defendant Jetha-bhai Nursey through a solicitor asserting his right to inspect certain documents etc. of the caste, that he had violated certain caste customs and had joined Vasunji Trikamji's party. But those might have been very good grounds from the standpoint of the caste, for excommunicating him from it or for fining him, according to caste rules or usage. The evidence, however, shows that the plaintiff has not been excommunicated. One witness Meghji Khetsey, for the defendants does indeed state that the plaintiff is not in the caste. But Bhimji Hirji Kayani admits that the plaintiff is still a member of the caste. There is no evidence to show that the plaintiff has done anything prejudicial to the interests of the trust. All that appears upon the evidence recorded in this suit is that there is hostility on account of caste disputes between him on the one hand and the other trustees and perhaps a majority of the caste, on the other. But that by itself is no valid ground for removing the plaintiff from the office unless it is clear that in the execution of the trust he has been guilty of some misconduct. 'Friction or hostility between trustees and the immediate possessor of the trust is not of itself a reason for the removal of the trustees, But where the hostility is grounded on the mode in which the trust has been administered, when it has been caused wholly or partially by substantial overcharges against the trust estate, it is certainly not to be disregarded'. (Letterstedt v. Broers (1884) 9 App. Cas. 371 at p. 381). Of such conduct on the part of the plaintiff there is no proof in the case. The conclusion I come to on an examination of the evidence, the surrounding circumstances and probabilities, is that the defendants, of whom Jethabhai Nursey is the leader, have removed the plaintiff from the office of trust under colour of a caste resolution, which is invalid, merely because the plaintiff has joined the party opposed to them and filed a suit against the defendant Jethabhai in assertion of his alleged right of inspection. So far as the equities go, they are, in my opinion, in favour of the plaintiff and I see no reason, in the sound exercise of judicial discretion, to refuse to him the declaration and injunction as prayed.
24. If the defendants, or any other members of the caste, or the caste itself, think that the plaintiff ought not to continue as a trustee, they must take proper steps, according to law and have him removed by a decree of the Court. They have no right to take the law into their own hands. The action of the defendants, which the plaintiff complains of, is clearly illegal.
25. The result is that the plaintiff's suit is decreed with costs. There is one remark I should make before parting with this suit. After the defendants' case had closed and the learned Advocate-General had begun addressing me, Mr. Setalvad for the plaintiff intimated that he wished to call evidence in rebuttal as to the issues, the onus of which lay in the first instance on the defendants. But I declined to accede to Mr. Setalvad's prayer for the reasons briefly recorded by me at page 20 of my Notebook No. 7 of 1906. The last paragraph of Section 180 of the Civil Procedure Code applies to the prayer. Mr. Lowndes, who conducted the plaintiffs case, not only never intimated his intention to reserve his evidence by way of answer to the evidence that would be produced by the defendants, but throughout he kept remarking that he was not going to call any oral evidence, because, in his opinion, the questions involved were mainly of law and the suit ought not to last for more than an hour, He was right, there, I think.