1. The property concerned in this litigation admittedly belonged to one P. R. Hanumanthappa. He is said to have left a registered will dated 22-7-1921 by which he purported to create a trust over it for certain charitable purposes, viz., advancement of education of some orphan boys. By that will he appointed five trustees including his widow defendant 1 who died subsequent to the suit. The other trustees were also dead before the suit was filed. Plaintiffs l and 2 and defendants 4 and 5 were the sons of those trustees. Defendant 2 is said to have purchased the suit item from defendant 1 under a sale deed dated 12-9-43 and later on sold it to defendant 3 by a sale deed dated 30-3-46.
2. The plaintiffs having applied for and obtained the permission of the Deputy Commissioner, Bangalore District, to bring a suit under Section 92 Civil P. C., brought their suit and prayed for the removal of defendant 1 from her trusteeship, for settling a scheme in accordance with the directions contained in the will of Hanumanthappa and appointing new trustees and vesting the property in them, for accounting by defendants 1 to 3 and for recovery of possession of the property from the said defendants. The suit was contested by defendant 3. Defendant 2 merely filed a statement and later on absented himself. Defendant 3 denied the genuineness and validity of the will. He pleaded that defendant 1 was entitled to sell the property as no trust had been created by the will nor had it been acted upon. He also pleaded that he had spent some monies for improving the property and that he was a bona a fide purchaser for value.
3. The learned District Judge held that the will was genuine and that it created a trust, and he directed the framing of a scheme and the vesting of the property in the new trustees to be appointed as the terms of trust were not being carried out. He was, however, of the opinion that he could not direct in this suit defendants 2 and 3 to deliver possession of the property to the plaintiffs or to any trustees that might be appointed or to render any account of the income of the suit property as the suit was one brought under Section 93 Civil P. C. He, therefore, dismissed the suit as regards the last two matters. Defendant 3 has now come up in appeal.
4. Before us it has not been seriously contended for the appellant that the will of Hanumanthappa is not genuine or that it does not create a trust; nor is there any room for so doing. (After discussing the evidence the Judgment proceeded) : There could, of course, be no question of defendant 1 enjoying the property in her own right as she was a trustee expressly appointed by her husband, nor her prescribing for any title by adverse possession.
5. It is also not shown how the plaintiffs are estopped from bringing this scheme suit. The plaintiffs filed an earlier suit O. S. No. 55 of 43-44 for recovery of possession of the property and appear to have applied for and obtained an order of temporary injunction restraining defendant 2 from dealing with the suit house. That suit was dismissed as not maintainable on the ground that it should have been brought as one under Section 92, C. P. C., after obtaining the necessary permission of the Deputy Commissioner and was also barred under Section 40, Religious and Charitable Endowments Act. Thereupon the plaintiffs applied for and obtained the consent of the Deputy Commissioner, Bangalore District, to bring the present suit. Defendants l and 2 and later on defendant 3 also were parties in the proceedings before the Deputy Commissioner under Section 92 though defendant 3 has now chosen falsely to deny it.
There is also now no substance in the contention that the provisions of the Religious and Charitable Endowments Act in any way bars this suit. In --'Narayan Krishnaji v. Anjuman-E-Is-lamia', 54 Mys HCR KP.B.) it has been held that it is open to two or more persons interested in a charitable endowment to institute a suit under Section 92 Civil P. C. having obtained the sanction in writing of the Deputy Commissioner, without moving the Muzrai Officer to take action under Section 17, Religious and Charitable Endowments Act, 1 of 1927, even though it is a matter in which the Muzrai Officer has power to take action.
6. Mr. Gundappa's main contention before us is that defendants 2 and 3 were not necessary or proper parties to the suit. In support of that position he has relied on a case of this Court reported in --'Mustapha Khan Sab v. Syed Abdul Gaffoor Sab', 13 Mys LJ 98 and on --'Johnson. D. Po. Min v. U. Ogli', 10 Rang 342 which is referred to and relied on in that decision. In 13 Mys LJ 98, it has no doubt been held that in a suit under Section 92 Civil P. C. claims Of persons who are strangers to the trust and who set up a title hostile to the trust such as alienees and mere trespassers cannot be gone into nor can such a suit be merely for declaration that the suit property is trust property. In that case the suit had been brought in a representative capacity under Order 1, Rule 3, Civil P. C. for a declaration that the property in suit belonged to the public and for a permanent injunction restraining the defendants from interfering with the use thereof by the plaintiffs and others. The Munsiff who tried the suit found that the plaint disclosed a trust and as the suit fell within the provisions of Section 92, Civil P. C. it was not maintainable without the consent of the Deputy Commissioner. He accordingly dismissed the plaintiffs' suit. On appeal the District Judge was of the opinion that the suit did not fall within the purview of Section 92, that the Deputy Commissioner's sanction was not necessary and that the suit as brought was maintainable. He, therefore, remanded the case to the Munsiff. In a miscellaneous appeal against the order of remand it was contended before the High Court that the order of remand was incorrect. It was held by the High Court that the reliefs asked for in that case did not fall within the purview of Section 92, C. P. C., and that the suit was maintainable without the sanction of the Deputy Commissioner. In those circumstances the order of remand was upheld and in that connection reference was made to 10 Rang. 342 and -- 'Budree Das v. Chooni Lal, 33 Cal 789, 13 Mys LJ 98, therefore, does not lay down that in a suit under Section 92, alienees are not necessary much less proper parties at all nor was it necessary in that case to decide that question. We do not think, therefore, that 13 Mys LJ 93, in any way concludes the matter.
In 10 Rang 342, it has, no doubt, been decided that strangers to the trust are no proper or necessary parties in a suit under Section 92 and that no relief can be granted against them in such a suit. In coming to that conclusion Page, C. J. has differed from the Madras, Bombay and Calcutta decisions.
7. On the other hand there are several cases in which it has been held the other way. In --'Anjaneya Sastri v. Kothandapani', 1936 Mad WN 245, Varadachariar and Stodart, JJ. held that alienees from a trustee of property belonging to the trust are not necessary parties but are proper parties to a suit under Section 92, C. P. C., even though no relief can be granted against them regarding the alienation especially when they deny the existence of the trust and the title of the trust to the properties alienated; and that persons suing under Section 92 have to establish as their cause of Section (1) that there is a trust, express or constructive, created for public purposes of a charitable or religious nature and (2) that it has been broken. In that view persons who deny title of the trust and on that footing claim to be in possession of the property which is necessary for the proper discharging of the trust are proper parties to the suit when in their absence the Court cannot effectually and completely adjudicate the question. Varadachariar, J. after reviewing all the 'previous Madras and Allahabad cases refused to follow the Rangoon case referred to above. The Rangoon case has been expressly dissented from in that Judgment.
Their Lordships place their conclusion on another ground also that Section 92 contains no provisions for the joinder of parties or causes of action and can create no exception to the general rules on that subject which are to be found in Orders I and II, C. P. C. They observe that grounds of misjoinder' are not to be set up to de-Jay decisions or multiply litigation. Therefore even if the impleading of third party transferees under Section 92 is irregular, the decree passed by a competent Court alter a fair contest will not be set aside merely because there has been an irregularity of procedure in impleading third parties.
In --'Abdul Majid v. Akhtar Nabi', 39 Cal WN 1103, it has been held that a stranger who purchases or receives trust property through a trustee with notice of the trust is in law a constructive-trustee although he may not after his purchase act in the interest of the trust. Accordingly an alienee of trust property who according to the allegations in the plaint purchased with notice of the trust is a proper party in a suit under Section 92, C. P. C., and such a suit is maintainable against him. In --'Ratan Sen v. Suraj Bhan' : AIR1944All1 , it has been held, relying upon --'Ramrup Goshain v. Kamdhari Bhaghat : AIR1925All683 , that in a suit under S. 92 third party transferees of the alleged trust property who claimed the property in their own right or deny the validity of the trust can be impleaded and the declaration, that the property is trust property can be granted against them. In -- 'Collector of Poona v. Bat. Chanchalbai', 35 Bom 470 also it has been held that where a breach of trust is complained of and where the alienee of trust property denies that the property is the subject of public trust for religious purposes he is a proper and necessary party to a suit brought under the provisions of Section 539 Civil P. C., 1882, though no relief can be given as against him by way of a decree in ejectment.
8. Mr. Gundappa has also relied on a ease reported in --'Pragdasji v. Ishwarlalbhai', : 1SCR513 , and has argued that the finding as-to the existence of a public trust in circumstances like those in the present suit would be no more than an 'obiter dictum' and cannot affect his client and that, therefore, there is no object- in making an alienee like his client a party. But it is seen that the case in : 1SCR513 , was brought for a declaration that the properties-in suit were subject of a public trust of a religious character and that the defendant had been acting in a manner contrary to the usages of the institution and was guilty of incontinence, mismanagement and improper alienation of trust properties. It was found by the District Judge who tried the suit that the allegation of misconduct and breach of trust were not proved and in this view he dismissed the suit but made a declaration that the temple and the properties in the possession of the defendant were public, religious and charitable properties. Their Lordships of the Supreme Court pointed out that a suit under Section 92, C. P. C., is a suit of a special nature. It presupposes the existence of a public trust of a religious or charitable character and can proceed only on the allegation that there is a breach of such trust or that directions from the Court are necessary for the administration thereof and it must pray for one or the other of the reliefs that are specifically mentioned in the section.
'The defendant had denied the existence of the trust and denied further that he was guilty of misconduct or breach of trust. Though his denial could not certainly oust the jurisdiction of the Court when the Courts had found concurrently on the evidence adduced by the parties that the allegations of breach of trust were not made out the very foundation of a suit under Section 92, C. P. C., was wanting and the plaintiffs had absolutely no cause of action for the suit they instituted'.
They accordingly held that in a suit framed under Section 92, C. P. C., a relief praying for a declaration that the properties in suit are trust properties does not fall within the reliefs which can be claimed under that section. When the defendant denies the existence of a trust a declaration that the trust does exist might be made as ancillary to the main relief claimed in the plaint if the plaintiff is held entitled to it. But when the case of the plaintiff fails for want of a cause of action there is no warrant for giving him a declaratory relief under the provisions of Section 92, C. P. C. The finding as to the existence of a public trust under such circumstances would be no more than an 'obiter dictum' and cannot constitute a final decision in the suit.
9. In view of the finding of the Court below, with which we agree, viz., that the suit property is trust property and that a public trust of a religious or charitable character has been created by the will of Hanumauthappa and that there has been a breach of that, trust and mismanagement which necessitates an interference by the Court under Section 92, C. P. C., the Supreme Court case can have no application to the present case & it is to be decided in the light of cases reported in -- 'Collector of Poona v. Bai Chanchalbai, 35 Bom. 470, -- 'Katan Sen v. Suraj Brian' : AIR1944All1 , -- 'Abdul Majid v. Akhtar Nabi', 39 Cal. W. N. 1103 and -- 'Anjaneya Sastri v. Kothan-dapani', 193S Mad. W. N. 245 (2).
10. In the result, we think that the judgment and decree of the learned District Judge are correct. This appeal fails and is accordingly dismissed with costs. Advocate's fee Rs. 50/-.
11. Appeal dismissed.