1. This appeal arises out of a suit instituted under Section 92 of the Civil Procedure Code, by two individuals, one of whom has died since the institution of this appeal. A preliminary objection has been taken by the respondents that the appeal should fail because one of the two original appellants is dead, and Section 92 of the Civil Procedure Code lays down that at least two persons shall institute the suit under that section. We have heard the learned Counsel for the respondents at length on this point, but we are of opinion that on a simple reading of Section 92, Civil P.C., the hearing of this appeal cannot be barred. All that the section says is 'two or more persons...may institute a suit'. Where the suit has been properly instituted according to Section 92, Civil P.C., there is nothing in that section which says that the suit cannot be continued if one of the original plaintiffs who instituted the suit in the manner laid down by law happens to die. Although this is our plain reading of the section, it appears that there is a conflict of opinion on this point. It would serve no useful purpose to quote the different cases cited to us. In our High Court in Chhabile Ram v. Durga Prasad A.I.R. 1915 All. 59 two learned Judges held that if one of the plaintiffs in a suit instituted under Section 92, Civil P.C. dies; the suit would abate. It was, however, remarked that it would be open to any other member of the public interested in the subject matter to obtain the consent of the Advocate-General and to apply to be brought on the record as a co-plaintiff.
2. The conflict among the High Courts is however set at rest by a decision of their Lordship of the Privy Council in Anand Rao v. Ram Das Dadu Ram A.I.R. 1921 P.C. 123. It was argued before their Lordships that because one of the plaintiffs had died the suit was not maintainable. The argument, however, was not accepted. Their Lordships, at the bottom of page 497 (of 48 Cal.), are reported to have remarked as follows:
There wag also a point that one of the persons who originally raised the suit and got the sanction having died, the suit could not go on; but there does not seem any force in that point either, it being a suit which is not prosecuted by individuals for their own interest but as representatives of the general public.
3. After this pronouncement on the part of their Lordships, we must hold and do hold that the law laid down in Chhabile Ram v. Durga Prasad A.I.R. 1915 All. 59 is, no longer good law. Now we come to the merits of the case. It appears that in Bareilly an orphanage was established many years ago by the Arya Samaj of the place. Gradually it became a large institution and the Government began to send for maintenance to the institution orphans picked up by the police, and the Government made a certain allowance for the purpose. The orphanage was maintained by an association called the Orphanage Committee, Arya Samaj, Bareilly, and the rules which governed it will be found printed at p. 101 of the paper-book. Later on several other institutions managed mostly by the Arya Samaj were amalgamated with this orphanage, and in 1922 a society was registered under the Registration of Societies Act, 1860. The Memorandum of Association framed for the purpose will be found printed at p. 95 and the rules framed will be found at p. 97. The plaintiffs alleged in the plaint that the orphanage was mismanaged and large sums of money belonging to the orphanage was misapplied to other institutions and that some of the money belonging to the orphanage was also converted into his personal use by the defendant 1, who has been described as Doctor Shyam Sarup, Rai Saheb. The reliefs claimed were that the defendant 1 and such of the defendants from 2 to 12, 14 and 16 as may be found liable, should be ordered to render accounts of the entire income and expenditure from 1st October 1918 to 30th September 1927 and they should be ordered to pay to the orphanage whatever money may be found due from them, and that the present trustees be removed and new trustees be appointed and such other relief as might be called for may be granted. The suit was opposed by several of the defendants and principally by the defendant 1. It appears that the defendant 1 took a great interest in the orphanage and the other institutions and he was elected the president of the 'Trust' that was registered as a society in 1922.1 Before the suit was brought there had arisen a dispute as to the management of the orphanage between the members of the Arya Samaj and it was referred to the arbitration of two gentlemen, one Lala Roshan Lal, till) lately a Barristerat-law practising at Lahore, and one Swami Vichara Anand. They exonerated the defendant 1 frona any personal liability, but they suggested that the defendant 1 should resign from his position as the president of the 'Trust.' He accordingly resigned. He, however, was re-elected a member of the 'Trust' in October 1927. The suit was-instituted in November 1928. It appears that the year reckoned by the association commences with October and ends with September. On the 27th of June 1929 the learned District Judge took down certain statements of the parties; and Mr. Kishan Lal, one of the counsel for the plaintiffs, stated as follows:
The suit being under Section 92, Civil P.C., the present trustees only are liable and not the members of the managing committee referred' to in issue 1 and that he does not wish them to be brought on the record.
4. The issue No. 1, referred to in this stetement, runs as follows:
Are the members of the managing committee between the 1st October 1918 to the 80th September 1927 parties; if not, whether they should not be brought on the record at once?
5. So far as the relief for removal of the present trustees goes the suit no doubt was properly framed by arraying as defendants the members of the committee-elected in October 1927. But so far as the relief as regards accounts and refund of money goes (see relief at p. 8), the suit must be treated as badly framed because the persons who were responsible for the management during the period from 1st October 1918 to 30th September 1927 have not been made party. In this view the claim as regards accounts and refund' must fail. The learned District Judge at the request of the parties appointed a commissioner to look into the accounts and he examined the few witnesses put forward on behalf of the parties. The plaintiffs examined only two gentlemen, namely, Mr. Lakhmi Narain and Mr. Kackar (pp. 42 and 40), and the defendant 1 examined himself. The Commissioner reported that there was no misappropriation of the funds of the orphanage in the sense that it was not proved that any of the defendants had appropriated to himself any money belonging to the said institution. But he found that the funds of the orphanage had been applied for the benefit of some of the institutions affiliated to the orphanage by the formation of the society called the 'Trust' in 1922. The learned District Judge accepted this report, discussed all the points that had been raised before him on behalf of the plaintiffs and gave the decision that the suit should be dismissed against all the defendants as regards relief A, namely, refund of money; that a fresh committee should be appointed; that it should be declared that the Aryji Samaj Orphanage, Bareilly, was entitled to have certain Government Promissory Notes redeemed within one year with interest, plus Rs. 700 as interest from October 1926 to 15th December 1929 and to a refund of Rs. 12,037, with interest from the Arya Vidya Sabha and other institutions which formed part of the Arya Samaj Orphanage Education and Service Trust. Having given this decision the learned Judge proceeded to formulate a scheme for the future management (see p. 86).
6. On behalf of the surviving appellant it has been urged that the learned Judge has incorrectly decided several points raised before him, and we have been taken through such evidence as is on the record on those points. We accordingly propose to briefly examine these points and record our opinion. The first point urged was that in the year 1925-1926 a large amount of money was shown in the books as having been spent on the food of the orphans, that this money was not really so spent and could not have been so spent and that therefore the defendants should refund such amount as they may have misappropriated. This point fails on several grounds. First of all, as we have already pointed out, the learned Counsel for the plaintiffs confined his case only to the 'present trustees' and he declined to make parties such of the members of the committee as held office between the 1st October 1918 and the 30th September 1927. The last mentioned people we're the persons really responsible for the management or mismanagement of the orphanage, and they should have been made parties. Where a suit is instituted against a trustee, all the trustees should be impleaded. This is laid down in Order 31, Rule 2, Civil P.C. As this has not been done, no decree can be made against any of the trustees. It has been argued that under Order 1, Rule 9, Civil P.C. no suit can fail for non-joinder of parties. But this does not mean that only one trustee may be sued in contravention of Order 31, Rule 2, Civil P.C., and a decree may be made against the trustee singled out for the suit. Besides this technical point, the evidence is not sufficient for the making of any decree against any of the defendants. The commissioner has examined the accounts and he found that although expenditure in the year 1925-1926 was very large, the expenditure was supported by vouchers and it could not be said that the money had not actually been spent in the way it is recorded as having been spent. There is no evidence before us as to what should have been the proper amount to be spent on each of the orphans and there is nothing to show that the accounts had been forged. Defendant 1, who seems to be the main target of the attack by the plaintiffs resigned his office as the president of the association in June 1927 and since then all the documents and accounts of the orphanage are not in his possession or power. It is not possible to say that the vouchers that have been put forward before the Court were fabricated before they were produced. They were not in charge of the defendant 1. In the circumstances we hold that the point urged was rightly disallowed by the commissioner and the District Judge. We may point out that the two gentlemen privately appointed to enquire into the matter, namely, Mr. Kishan Lal, Barrister-at-law, and Swatni Vichara Anand, also found that the defendant 1 was not guilty of appropriating any money to himself.
7. Again there is nothing to show that the defendant 1 took it upon himself to spend the money. The institution was very large and there was a regularly constituted committee for managing it. Unless therefore it can be shown (and this has not been shown) that the moneys were spent by the defendant 1's orders, he cannot be held liable. There is no evidence to hold any of the other defendants liable. The second point urged was that the Government Promissory Notes of the face value of Rs. 11,000, should not have been pledged for the purpose of raising money to purchase land for one of the affiliated institutions. The learned Judge has held that this was so and has declared that the institution which has utilised the money should pay back the amount. Beyond this the learned Judge could not have gone because the association which had benefited by the money was no party to the suit. The next point is that a large amount of money has been shown in the books of account as having been spent on miscellaneous expenditure. The commissioner has examined this point and has shown that most of the entries are really paper entries and that there is nothing suspicious in this expenditure. We are also of the same opinion, which has been endorsed by the learned District Judge.
8. The next point urged was that a sum of Rs. 7,100, was shown in the account books as being the 'stook-in-hand,' and that defendant 1 should be held liable for the price. We have looked into the accounts and we find that the vernacular word 'saman' used in the books never meant that furniture worth Rs. 7,100 had been manufactured in the orphanage carpentry shop and was for sale. The value of Rupees 7,100 was shown from year to year, and, as the learned District Judge has decided, it represented the value of the furniture, fittings, etc., actually used in the orphanage. This point therefore also fails. It appears that a small portion of the land belonging to the orphanage has been leased out to one of the affiliated institutions, namely Sarasuti Vidyalay, by a lease for 99 years. This lease has not been annulled by the learned District Judge and it could be annulled only in the presence of persons representing that institution. The learned Judge has further pointed out that the lease was not unfair in the circumstances of the case. We agree with him. Lastly it was urged that the decree of the Court below was an ineffective decree because it did not direct anybody to pay the money. It having been found that none of the defendants were personally liable to pay, we do not see how the learned Judge could have directed any of the associations benefited by the money to pay as they were no party to the suit. It was urged that the scheme framed by the learned District Judge was incomplete and ineffective. We think that what the learned Judge meant to do was to direct that the rules framed for the orphanage (p. 101) should be accepted for the future and that over and above those rules the three rules framed by him at p. 86 should be followed. We have been told by the parties that, as directed by the learned District Judge, the orphanage has already been registered as a charitable society under the Act of 1860. If this has been done, a memorandum of association must have been prepared and certain rules must have already been framed for the purpose. In the circumstances we do not think that we should supplement the order of the learned District Judge by framing any rules that may clash with the rules already framed or with the memorandum of association registered with the Registrar. In the result we dismiss the appeal with costs, leaving it to the parties to approach the learned District Judge, if and when they think it fit to alter or add to the scheme already framed by him.
9. There is one matter which we want to bring to the notice of the learned District Judge. It is this : the Government rules provide for the inspection of the orphanage from time to time because the orphans sent to it by the Government have to be inspected by the Civil Surgeon or Assistant Surgeon from time to time. If and when the Government withdraws this privilege from the orphanage, it would still be necessary that the orphanage should be subject to inspection by a medical man in the service of the Government so that the orphan's health and sanitation in general may not suffer. The learned District Judge in framing the rules may provide for medical inspection in the case of withdrawal of inspection under the Government orders. We have been told on behalf of the respondents that the surviving appellant is not solvent enough for payment of the costs of the successful respondents. It is competent to this Court to make an order for costs against the estate of the deceased appellant. We make that order in the circumstances of the case in addition to the order as to costs made personally against the surviving appellant.