1. This is a suit brought by a trustee under a deed of settlement which admittedly is a trust created, among other things, for public purposes of a charitable or religious nature. The plaintiff asks, among other things, that the deed may be construed and the trust administered by and under the directions of the Court, that accounts may be taken, that defendant No. 1 may be ordered to pay to the plaintiff, or the trust estate, the amount found due and payable by him on the taking of such accounts and that the property may be sold and that the plaintiff may be paid a claim in respect of a debt which he alleges is due to him from the trust estate.
2. A large number of issues were raised. The first raises the point whether the consent of the Advocate General under Section 92 of the Civil Procedure Code, 1908, was necessary for the institution of the suit, and, if so, whether in the absence of such consent the suit is maintainable. With the consent of the parties I decided to try that as a preliminary issue. The facts necessary for the determination of this issue are to be found in the plaint and in the deed of settlement and may be shortly stated.
3. One Bapu Narayan Limaye settled all his properties moveable and immoveable upon trust by a deed of settlement dated April 14, 1921, which was put in as exhibit (A). Under the deed Bapu was to be the sole trustee during his life-time and after his death the plaintiff and the defendants were to be the trustees of the deed. Bapu was a partner in the firm of Messrs. Vishnu Ballal & Co. The plaintiff was also a partner in that firm. Bapu had borrowed various sums of money amounting in all at the date of the deed of settlement to Rs. 85,000. Some of these amounts he had expended upon the building of a temple, referred to in the deed of settlement, which had been founded by one Balkrishna Keshavset Gopalkar, and others of these amounts he had expended upon carrying out repairs and additions to an immoveable property at Chikhalwadi, also referred to in the deed of settlement.
4. By the deed of settlement he made various provisions in respect of the temple. For instance, he directed the trustees to continue the present worshipper during his good behaviour and to pay out of the income Rs. 180 at. the monthly rate of Rs, 15 for the expenses of the daily worship. He also directed other sums to be paid from time to time in connection with the worship of the temple. He directed the trustees to expend Rs. 50 per year for the expenses of the trustees visiting the temple to see that the worship was properly carried out. He further directed that Rs. 125 per year should be paid to Balkrishna the founder of the temple and after his death to his wife. Then he provided that after the death of both the trustees might fill in the office of superintendent or keep it vacant as they pleased and directed that if they kept it vacant they might apply Rs. 125 per year for the purposes of the temple. These, in substance, were the provisions for purposes of a charitable or religious nature.
5. Next the settlement made provision for the payment of various sums of money to different members of the settlor's family. Power was reserved to the settlor to revoke during his life-time all gifts by will or codicil except the gifts for the temple and for the salaries of the worshipper and the superintendent.
6. Under paragraph 14 of the settlement the trustees were to pay off the debt due by the settlor to the firm of Vishnu Ballal & Co. from the balance of the income of the properties, It was further provided that in case the firm refused to wait and called for their debt the plaintiff was, at the settlor's request during his life-time or after his death when the debt was called for, and should be entitled, even if not called for, to pay off the same from his own moneys, which were payable to him by the said firm, it being stated that he had agreed with the settlor so to do. In case the plaintiff did pay off the amount due he was entitled to be reimbursed with interest at six per cent, per annum from the income of the settlor's property as if he was in the same position as the firm itself as regards the debt.
7. By paragraph 16 of the deed the plaintiff and the defendants as trustees were to be absolutely entitled as tenants-in-common to the remainder of the settlor's property left undisposed of, defendant No. 2 to the extent of Rs. 10,000, defendant No. 1 to the extent of Rs. 30,000, and the plaintiff to the extent of the remainder. But it was provided that they were not to be entitled to receive the income or divide the properties until they had liquidated the debt to the firm or to the plaintiff as the case might be and had paid off the dispositions previously mentioned in the settlement. After paying the debt and after the dispositions were satisfied by payments to or extinction of life interests by deaths of the beneficiaries and after setting aside sufficient to yield the income for the gifts of the temple and the office holders, it was provided that the trustees might keep the estate intact and enjoy the income thereof, or sell and divide the same. But liberty was reserved to the plaintiff to keep the whole estate for himself after liquidating the debt to the firm and paying defendants Nos. 1 and 2, who even after receipt of such payments were to remain as trustees, and after setting apart the sums mentioned for satisfying the gifts to the temple and the other gifts mentioned.
8. I will now refer briefly to the relevant portions of the plaint as the construction of the contents thereof will determine the question whether this case falls, or not, under Section 92 of the Civil Procedure Code.
9. In paragraph 4 it is admitted that some of the sums settled were to be utilised for purposes of charity. Then after a reference to the borrowings from the firm and to the provisions of Clause 14 of the deed, which I have referred to in some detail, it is alleged in paragraph 7 that the total amount borrowed by the settlor from the firm by October, 1921, came to Rs. 98,046-13-2, and that the plaintiff paid off that debt with moneys payable to him, by the firm and became entitled to be reimbursed that sum with interest at six per cent, per annum from the income of the properties as if he were in the same position as the firm itself.
10. Paragraph 8 alleges that Bapu died on or about April 26, 1922. Then it is alleged in paragraph 10 that after Bapu's death the trustees managed the properties and the net rents and profits realised were utilised in paying Rs. 150 to defendant No. 1 and Rs. 50 to defendant No. 2, and the balance was credited towards the indebtedness of the settlor to the plaintiff till November 14, 1936, when the plaintiff entrusted the management of the property to defendant No. 1 as he was keeping unwell and unable to look after his affairs and was getting old.
11. Paragraph 11 alleges that thereafter defendant No. 1 has managed the said property exclusively, has not made any payment to the plaintiff in respect of the amount due and payable by the settlor to him, that he has not kept proper accounts and has appropriated all the rents and realisations of the said property to himself. Thus there is an allegation of a breach by these trustees of their duty to devote part of the funds towards public purposes of a charitable or religious nature. This paragraph then alleges that defendant No. 1 has refused to show the accounts to the plaintiff and has refused to allow the plaintiff to take part in the management of the said properties.
12. Paragraph 12 refers to Clause 16 of the settlement, the terms of which I have already referred to. In paragraph 13 it is alleged that defendants Nos. 1 and 2 have taken certain sums out of the income of the property wrongly and that the trust estate is entitled to be reimbursed those sums out of the beneficial interest of the defendants in the sums of Rs. 30,000 and Rs. 10,000 respectively and that the plaintiff or the trust estate is entitled to recover from the defendants personally the amounts of the over-payments. Paragraph 14 alleges that the debt of the settlor to the plaintiff amounts to Rs. 1,31,641-13-8. In paragraph 15 the plaintiff submits that he is entitled to recover that amount out of the income of the properties of the settlor in priority to all the gifts provided by the deed of settlement. This allegation amounts to a claim by the plaintiff to take priority even over the gifts for public purposes of a charitable or religious nature. By the same paragraph the plaintiff claims that he is entitled to get the property sold and recover the debt due to him in full, and that on a proper construction of the deed if the sale proceeds are insufficient to pay him in full the debt due to the plaintiff and the other gifts mentioned therein the gifts in favour of the defendants should abate proportionately.
13. In paragraph 16 the plaintiff repeats his previous allegation that defendant No. 1 is in exclusive management of the properties and is utilising the rents and profits of the property for his personal use and is excluding the plaintiff and defendant No. 2 from the management. The plaintiff complains that his debt is not paid, and states that he desires that the trust created by the deed of settlement including the trust for the satisfaction of the plaintiff's debt should be administered by and under the directions of this Honourable Court. The plaint ends with the various prayers to which I have already-drawn attention, and a prayer that for the purposes previously mentioned enquiries be made, directions given and accounts taken, and other prayers which it is not necessary to refer to.
14. Section 92(1) of the Code of Civil Procedure provides that in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate General, may institute a suit to obtain a decree of the kind mentioned in Sub-clauses (a) to (h) of the section. For the present purposes it is only necessary to refer to (d) directing accounts and enquiries, (e) declaring what proportion of the trust-property or of the interest therein shall be allocated to any particular object of the trust, and (f) authorising the whole or any part of the trust-property to be let, sold, mortgaged or exchanged. By Sub-section (2), it is laid down that save as provided by the Religious Endowments Act, 1863, no suit claiming any of the reliefs specified in Sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.
15. The case of Narsidas v. Ravishankar : (1930)32BOMLR1435 laid down that to bring Section 92 of the Civil Procedure Code into operation there must be a suit alleging (a) a breach of some express or constructive trust created for public purposes of a charitable or a religious nature, or (b) that some direction of the Court is necessary for the administration of any such trust. The case decided that if either of these conditions is fulfilled and a suit is filed asking for any of the specific reliefs mentioned in the sub-heads (a) to (h), then the case falls within Sub-section (1) of Section 92. There are on the other hand cases where a trustee has brought a suit for accounts against other trustees of a trust created for public purposes of a charitable or religious nature, and has complained that he is not allowed to take part in the administration of the trust, and has asked for an injunction against his co-trustees to restrain them from preventing him from taking part in the administration of the trust, where the Courts have held that such allegations raise merely a private dispute between the trustees inter se and that such cases do not fall within the purview of Section 92 of the Code. A typical case of this kind is Bapuji Jagannath v. Govindlal Kasondas (1916) I.L.R. 40 Bom. 439
16. Mr. Daphtary for the plaintiff did not profess that this was a simple case of a trustee asking for accounts against his co-trustees of a character such as I have mentioned. His submission was that this settlement was of a composite character. He conceded that the plaintiff was a beneficiary under the trust and that he was suing for the purpose of enforcing his rights as a beneficiary. He submitted, however, that this settlement should be looked at from two points of view, as a settlement partly for a public purpose of a charitable or religious nature and partly for purely private purposes. He referred to a number of authorities in which it has been pointed out that a suit brought with the leave of the Advocate General under section 92 is a representative suit in which the plaintiffs claim on behalf of the public generally for relief in respect of breaches of trust created for public purposes of a charitable or religious nature. Mr. Daphtary submitted that in the present suit the plaintiff was really seeking to enforce as a beneficiary a private right conferred upon him under the deed of settlement, and that even though he was asking for other reliefs some of which fell within Sub-heads (a) to (h) of Section 92 that was immaterial, and he contended that the plaintiff was entitled to seek to enforce his private right without infringing the requirements of Section 92. In support of his argument Mr. Daphtary referred to Appanna Poricha v. Narasinga Poricha (1921) I.L.R. 45 Mad. 113 a full bench decision of the Madras High Court, and Aboo v. Aboo  Ran. 140, where Mr. Justice Braund held that although the disposition of the trust in that case was a compound one, being partly within and partly outside Section 92 of the Civil Procedure Code, the breaches alleged were with regard to the primary or non-public trust and the plaintiffs interest in the suit was confined only to such trust, and the case therefore did not fall within Section 92 of the Code.
17. I do not agree with Mr. Daphtary that this case is one in which the plaintiff is merely seeking to enforce his private rights under the deed of settlement against his co-trustees. It is alleged in paragraphs 11 and 16 that defendant No. 1 has appropriated all the rents and profits of the property to himself. This amounts to an allegation that defendant No. 1 has committed a breach of a trust admittedly created for public purposes of a charitable or religious nature. This allegation, in my opinion, takes this case outside the class of authorities of which Appanna Poricha v. Narasinga Poricha and Aboo v. Aboo are typical instances. The plaintiff having alleged a breach of trust created for public purposes of a charitable or religious nature the case, in my opinion, clearly falls within the express words of Section 92. No doubt the plaintiff brought this suit really for the purpose of enforcing payment of the debt due by the settlor to the firm which the plaintiff himself paid. It may be that he could so have framed his suit against defendants Nos. 1 and 2 as not to bring himself within the ambit of Section 92. In my opinion, however, he has not done so. As a trustee he is not only interested in seeing that there are no breaches of trust created for public purposes of a charitable or religious nature, but he is bound to take proper steps to prevent such breaches. Having regard to the wording of Section 92, as he has filed a suit alleging such breaches and has asked for some of the reliefs contemplated in sub-heads (a) to (h), viz., for accounts and inquiries, that it may be decided what proportion of the trust property is to be devoted to various objects, and that the property may be sold for the purpose of giving effect to the terms of the settlement, in my opinion, he does bring himself within the provisions of Section 92, and is not entitled to bring that suit without the consent of the Advocate General, or without joining along with himself some other person having an interest in the trust. Having regard to the express words of Section 92, it is, in my opinion, idle to contend that this is merely a suit by a beneficiary for the purpose of enforcing a private right of his own. It is a suit by a trustee alleging breaches of the trust and asking for some of the reliefs contemplated by Section 92. I therefore answer the first issue by saying that the consent of the, Advocate General is necessary, and that in the absence of such consent this suit is not maintainable.
18. As regards costs Mr. Daphtary submitted that the plaintiff ought to have his costs out of the trust estate. I am unable to accede to this submission. The plaintiff must be deemed to know the provisions of Section 92. If a trustee brings a suit which he is not entitled to bring according to Section 92 without complying with its terms, in my opinion, he must bear the ordinary consequences for the failure of such a suit, and I ought not to allow the fact that he is a trustee bringing a suit against co-trustees to out-weigh the ordinary rule that a man who brings a suit in a form not permitted to him, which suit must therefore necessarily fail, must bear the consequences. Accordingly, I dismiss this suit with costs.
19. On July 22, 1940, Mr. Justice Kania reserved the costs of a summons taken out by the plaintiff for adding the Official Assignee as a party defendant to the suit. Mr. K.T. Desai asks for the costs of this summons. Mr. M. M. Desai for the plaintiff concedes that as the whole suit has failed the defendants must be entitled to the costs of this summons. Accordingly, I direct that the defendants should have the costs of this summons, viz., Rs. 135.