1. This is a first appeal arising out of a suit in which the plaintiffs, a father and son, alleged that the land in suit was the property of a trust or wakf which had been created in favour of a shivala and dharamshala. Defendant 1 was alleged to be the trustee, defendant 2 to be in possession under an alleged mortgage executed by defendant 1 and defendant 3 to be claiming the property as a grove-holder. Defendant 3 is the father of defendant 2. All three defendants set up a plea that there was no trust and that defendant 1 was the owner of the property. The reliefs were : (a) that defendant 1 might be removed from the office of trustee and manager of the wakf property and that another trustee or other trustees should be appointed, (b) that the new trustee or trustees should be put in possession of the wakf property and that the rights of all the defendants should be extinguished and (e) that the defendants should be required to render an account of the income and expenses and that the amount which might be found due by any particular defendant should be awarded to the new trustee against that defendant. The learned District Judge dismissed the suit against defendant 3 on the sole ground that the Advocate-General had given the plaintiffs permission to sue only the first two defendants. He removed defendant 1 from the office of trustee and directed that a scheme should be drawn up for the management of the trust. Against defendant 2 he granted only a declaration that the property in suit was the property of the trust.
2. The appellant before us is defendant 2. Before considering his grounds of appeal and the arguments which have been addressed to us on his behalf it will be convenient to set forth certain facts. It appears that one Bhagwan Das sold the property to Hargu Lal, the father of the plaintiff, Suraj Bhan under a deed of sale dated 21st June 1892. In 1895 Jiwan Das brought a suit against Hargu Lal in order to obtain a declaration that the property in dispute was the subject of a religious and charitable trust in favour of a shivala and that the sale deed was null and void. This suit was concluded by a compromise decree. Hargu Lal agreed that the deed in his favour should be set aside on the understanding that the property in suit was wakf property relating to a shivala and dharamshala, that Jiwan Das should be the trustee and manager of the wakf, that he should be succeeded by his disciples and that he should have no right to alienate the property. Jiwan Das was succeeded by his disciple, Mohan Das, who executed a deed of usufructuary mortgage in favour of defendant 2 in the year 1932. Defendant 1, Babu Hira Das, is said to be the disciple of Mohandas. He did not appear in the Court below after filing a written statement and he has acquiesced in the ex parte decree which was passed against him. Defendants 2 and 3, son and father, are in possession of the property.
3. As for the grounds of appeal I may take them in order. The first is that there was no wakf because none could be created without the execution of a registered instrument. The answer to this is that the predecessor-in-interest of the defendants admitted the existence of this trust and that the decree on the basis of the compromise is binding upon the defendants. There was no necessity to have the decree registered and there is no suggestion that a wakf was created at the time when the decree was passed. The second ground is that there was in fact no idol or temple in existence at the time of the decree and that for this reason there could be no wakf. It was suggested that one of the plaintiffs had admitted that no idol existed at the time of the compromise, but an examination of his evidence will show that his statement was to the contrary effect. It does not however seem to matter whether there was an idol or not at that time. The par-ties to the decree accepted the position that there had been a wakf in existence for some time and even if there was no idol, there is nothing to prevent any person creating a trust in favour of a temple or of a dharamshala. There might be some question whether the property vested in the idol or vested in the trustee, but that would be a question which could not in any way affect the result of this suit. The third and the fourth grounds appear to rest upon the contention that the trustees could appropriate the property and defeat the trust by failing to carry out its provisions and misappropriating the profits of the property for a period of years. This proposition has merely to be stated in order to be rejected. The fifth ground is that the compromise decree was fraudulent and was the result of collusion between the parties. It is not explained on whom the fraud was practised and no fraud or collusion was pleaded by any of the defendants.
4. The sixth ground was that the plaintiffs could not be said to have any interest in the trust because they were Arya Samajists and that they could not be treated as two persons within the meaning of Section 92, Civil P.C., because they were members of a joint family. One of the plaintiffs admitted that he had been an Arya Samajist at one time but said that he no longer was. He admitted that he still accepted many of the principles of the Arya Samaj, but he did not say that he had no belief in idols or in the Hindu gods and counsel for the defendants in the Court below did not put any direct question to him upon this point. I may add that the plaintiffs are zamindars in the village in which the property lies and that they are the son and the grandson of the man who gave up the property on the understanding that it should be treated as trust property. Even if they do not believe in the Hindu gods, there is no reason why they should not be interested in the upkeep of the dharamshala and they would have a direct interest in seeing that the property which would have ultimately descended to them should be used for the purpose for which it was surrendered. As zamindars they might be interested in the upkeep of a temple in their village for the benefit of their tenants even if they were not in the habit of making use of it themselves.
5. I agree with the learned Judge that two persons referred to in Section 92, Civil P.C., are two individuals and the fact that the two persons were father and son and members of a joint Hindu family would not convert them into one person for the purposes of that section. The seventh ground, which was not argued before us, is that the suit was barred by the provisions of Section 41, T.P. Act. That section lays down a particular case of the general rule of estoppel. Its intention is that an owner of property who induces some person to accept the transfer of that property by leading him to believe that somebody else is the owner is estopped from setting up his own ownership. If the property vested in an idol, no estoppel could operate against the idol unless perhaps it was guilty through its recognised agent of some deception or laches and thereby induced a purchaser to believe in the ownership of a stranger. It would be impossible to hold that the human representative of the idol could defeat the claims of the idol merely by setting himself up as the owner of the property. If the property vested in the trustee, there was no person against whom any estoppel could operate.
6. I am satisfied that there is no force in any of the points raised in the grounds of appeal, but learned Counsel for defendant 2 in the course of his arguments has suggested that the learned District Judge was not entitled to give a declaration against him in the suit because he was a third party, that is, a person not directly interested in the trust. He contended that no decree should have been passed against him in the course of a suit under Section 92, Civil P.C. His contention is contrary to the rule laid down by this Court in Ramrup Goshain v. Ramdhari Bhagat : AIR1925All683 but he argued that that decision had been overruled by their Lordships of the Privy Council. He relied upon the case in Abdur Rahim v. Mahomed Barkat Ali ('28) 15 A.I.R. 1928 P.C. 16 There were two questions in that case before their Lordships. The first was whether it was necessary for plaintiffs to get the sanction of the Advocate-General if they instituted a suit relating to a trust and claimed some relief other than those mentioned in Section 92. Their Lordships held that it was not necessary for such plaintiffs to get such sanction. The other question was whether a particular decree on the basis of a compromise operated as res judicata. The suit which gave rise to the appeal was instituted by certain Muslims in order to obtain a declaration that certain property was wakf. There had been a previous suit instituted in the first place under Section 92, Civil P.C., against the mutwalli of the wakf, but after the suit had been instituted various transferees had been impleaded and the plaint had been amended in order that the plaintiffs should get a declaration that the property was wakf property. The amendment was made without the sanction of the Advocate-Greneral. Their Lordships held that the amendment gave rise to a request for a relief which was not within the ambit of section 92, Civil P.C., and that the suit after the amendment proceeded against the transferees not as a representative suit under Section 92 but as a personal suit by the plaintiffs. The plaintiffs and the transferees entered into a compromise and their Lordships held that that compromise was not binding upon the section of the public which the plaintiffs originally set out to represent. The remarks made by their Lordships on the second point do not suggest that they considered that the first suit should have failed by reason of the later amendment or that any decree which had been passed would not have been binding upon the parties who were before the Court at that time. In discussing the question whether it was necessary for a plaintiff who was seeking a relief other than those mentioned in Section 92 to obtain the sanction of the Advocate-General, they mentioned that it had been generally accepted by the Courts in India that a relief against third parties did not fall within the provisions of Clause (h) of the section and that it was not intended that plaintiffs in a suit under Section 92 should get a relief against third parties, but the passage must be considered in its context and it is clear to me that their Lordships were not intending to express any definite opinion upon the subject of the joinder of parties or causes of action or upon the effects of non-joinder or misjoinder. In my judgment there is nothing in Abdur Rahim v. Mahomed Barkat Ali ('28) 15 A.I.R. 1928 P.C. 16, which would justify us in holding that the case in Ramrup Goshain v. Ramdhari Bhagat : AIR1925All683 , has been overruled. Learned Counsel has also drawn our attention to the case in Johnson D. Po Min v. Ogh ('32) 19 A.I.R. 1932 Rang. 132, but I would prefer to follow the ruling of our own Court. For the decision of the appeal before us it would be sufficient to rest upon authority, but I would like to add some remarks upon the merits.
7. Section 92, Civil P.C., gives the Advocate-General a cause of action which he would not otherwise have and prevents others from instituting suits without his sanction in order to obtain certain definite reliefs in a representative capacity. It 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 1 and 2 of Schedule 1. These are rules only of t procedure framed to facilitate the administration of justice Und promote the convenience of parties by preventing, on the one hand, a multiplicity of suits and, on the other, any undue complexity which may cause delay or obscure the issues or produce undesirable results of other kinds. It is not intended that they should be used to defeat their own objects. It is laid down (Order 1, Rule 9) that no suit shall be defeated by the reason of misjoinder or non-joinder of parties and (Order 2, Rule 7) that all objections on the ground of misjoinder of causes of acton shall be taken at the earliest opportunity and, in all cases where issues are j settled at or before such settlement unless the ground of objection has subsequently arisen and any such objection not so taken, shall be deemed to have been waived. If such objection is taken and overruled it is laid down in Section 99 of the Act itself that no decree shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any misjoinder of parties or causes of action not affecting the merits of the case or the jurisdiction of the Court. It is clear that grounds of misjoinder are not to be set up to delay decisions or multiply litigation. A decree passed by a competent Court after a fair contest is not to be set aside merely because there has been an irregularity of procedure.
8. It is not suggested that there was not a fair contest in the suit which is before us and the District Judge certainly had jurisdiction. The rule in Section 15, Civil P.C., that every suit should be instituted in the Court of the lowest grade competent to try it is intended for the protection of Courts of higher grade and does not affect their jurisdiction : Nidhi Lal v. Mazhar Husain ('85) 7 All. 230.
9. Even if there was a misjoinder of parties or causes of action that would not justify any interference with the decree in appeal. The question, however, remains whether there was any misjoinder. All persons may be joined as defendants against whom any right to relief arising out of the same act is alleged to exist (Order 1, Rule 3). It seems to me that a relief is claimed against any person who is interested in denying the right to the relief. In this case the plaintiffs sought the appointment of a trustee and, in order to succeed, had to allege the existence of a trust. The appellant denied the existence of the trust and was opposed to the appointment of a trustee and he was, therefore, rightly impleaded. Once he was impleaded the finding that there was a trust was binding upon him and the facts were such that it was impossible to separate the question of the existence of the trust from the question whether the property in suit was trust property. A finding on this second point was necessary far the decision of the suit and, once the finding was there, it made no difference whether it was or was not embodied formally in the operative part of the decree as a declaration. This is not one of that class of cases in which a prayer for the removal or appointment of a trustee is combined with a prayer for the recovery of items of property alleged to belong to an admitted trust. The question whether a Court Should allow such reliefs to be combined does not arise but, if it did arise, I should have no doubt that it ought to be answered on the Ibasis of the provisions of Orders 1 and 2 of Schedule 1. I would dismiss the appeal with costs.
10. There is also a cross-objection by the plaintiffs. The only point which has been pressed before us is that a declaration against defendant 3 similar to that against defendant 2 should be passed. The two defendants as I have already said, are father and son and are members of a joint Hindu family. There is nothing in Section 92, Civil P.C., which justifies the conclusion that no defendant may be impleaded without the express sanction of the Advocate-General whose attention should be directed towards the plaintiffs and the nature of the suit. The learned District Judge's ground for dismissing the suit against defendant 3 was not a good one. This defendant contested the existence of the trust equally with defendant 2 and I think that a declaration should be given against him in the same terms as against defendant 2 in order to avoid misconception and further dispute. He has not appeared in this Court and the decree against him must be passed ex parte. As there were several grounds of cross-objection and the others are not, in my opinion, of any force, I would direct that the plaintiffs should bear their own costs of the cross-objection.
11. I agree.
12. We dismiss the appeal with costs. As a result of the cross-objection we amend the decree so that there shall be a declaration against defendant 3 in same terms as that which was given against defendant 2. The parties will bear their own costs of the cross-objection.