1. One Mathura Prasad of the town of Mohammadabad Gohna executed a deed of wakf in the year 1908 by which he transferred certain property to an idol, that is, Sri Ram Janki or Sri Earn Chander Ji and appointed one Hanuman Prasad to manage the property and expend the proceeds for the benefit of the idol and for certain charitable purposes. There was a provision in this deed that Hanuman Prasad might appoint a successor when he wished to do so. Hanuman Prasad himself transferred his own property to the idol in the year 1921. In exercise of his power of appointment he appointed or is alleged to have appointed another Mathura Prasad, Darbari Lal and Sheo Prasad, the plaintiff-appellant, as managers for the idol. Darbari Lal died in the year 1934. He executed a will in which he appointed Ram Chander Prasad, the defendant-respondent, as manager of the property.
2. Sheo Prasad instituted the suit which has given rise to this appeal in order to obtain a declaration that Ram Chander Prasad had no right as a trustee or manager either separately or jointly with the plaintiff or in the alternative for such other relief as the facts of the case would justify. The defendent-respondent raised the plea that the plaintiff-appellant was not himself a trustee or manager. The learned Judge of the Court below decided in favour of the defendant-respondent upon the ground that the question in issue was res judicata because in a previous suit No. 280 of 1933 the Munsif of Mohammadabad Gohna had held that the plaintiff had given up the trusteeship. This was a suit filed by Darbari Lal against a tenant, Ram Sarup Halwai, for the recovery of the rent of a house belonging to the trust. Mathura Prasad and Sheo Prasad were defendants and they both denied the right of Darbari Lal to institute the suit. Mathura Prasad pleaded that he was the sole mutawalli while Sheo Prasad pleaded that he, Darbari Lal and Mathura Prasad were appointed joint mutawallis, that Darbari Lal had for some time managed the property but that he had been subsequently removed on account of his mismanagement. The learned Munsif apparently held that Sheo Prasad and Mathura Prasad had disclaimed the office of mutawalliship in a plaint filed by them and Darbari Lal in suit No. 47 of 1926. The judgment of the learned Munsif has not been made available to us but it is stated in the judgment of the lower Court what his findings were and we must, in the circumstances, accept that statement to be correct. We have, however, before us the judgment in the appeal which was filed against the Munsif s decision and we find that the learned Judge of the appellate Court based his decision merely upon the finding that Darbari Lal was the one who had really managed the affairs of the idol and consequently was entitled to sue the tenant for arrears of rent. As the judgment of the learned Munsif was made the subject of an appeal and as it does not appear that the learned Judge of the appellate Court maintained his finding that Sheo Prasad had given up the mutawalliship, that finding, in our opinion, cannot be res judioata against the plaintiff, appellant. It is unnecessary for us to discuss other questions which have been raised and in particular the question whether the decision of the learned Munsif could operate as res judicata in the present suit which was instituted in the Court of the Civil Judge and which the learned Munsif would have had no jurisdiction to try. As we have found that the question at issue between the parties is not concluded by the previous decision of the learned Munsif in Suit No. 280, we must now consider whether the appellant did as a fact give up the mutawalliship so that he was no longer a mutawalli at the time of the institution of the suit which has given rise to this appeal. The only evidence is the statement made in the plaint in Suit No. 47. That plaint has not been made available to us and, therefore, we must accept the statement of its contents contained in the judgment of the learned Judge of the Court below. He reports that it is stated in the plaint that although the names of Darbari Lai, Mathura Prasad and Sheo Prasad were recorded in the khewat Darbari Lal alone was in possession of the endowed property. It does not seem to us that this statement alone justifies the conclusion that Sheo Prasad and Mathura Prasad had retired from the position of trustees. We do not know what the other contents of the plaint were and in what connection this statement was made. All three men were jointly plaintiffs and it may be that they were asking merely that the decree should be drawn up in favour of Darbari Lal alone because he was in fact managing the property on behalf of them all. Learned Counsel has urged that it appears from the evidence of Sheo Prasad that he knows very little about the trust property but that does not justify us in holding that he resigned his position. He may have relied upon Darbari Lal and taken little personal interest in the actual management of the property. There can be no doubt that he and Darbari Lal were jointly plaintiffs in suits after the year 1926 and the names of all three trustees were entered in the register of proprietors in respect, of villages belonging to the trust and remained in the khewat all through this period. We are satisfied that there is nothing to justify the finding that the plaintiff-appellant did resign his trusteeship.
3. It has been argued before us that he was never properly appointed a trustee. This-argument is based on a statement which he made in the witness-box that he had not been appointed trustee by Hanuman Prasad at the time when Hanuman Prasad transferred his own property to the trust but at a time, a few days later when Hanuman Prasad was on the point of deaths Learned Counsel argues that Hanuman Prasad having once created a trust in respect of his own property was not thereafter entitled to meddle with the affairs of tha trust and appoint a mutawalli. In our judgment there is no force in this argument. We do not think that much importance can be attached to the admission of the plaintiff-appellant. He was faced with a statement which he had made in a previous suit to the effect that he had been appointed just before Hanuman Prasad's death and not at the time when the property was transferred to the trust. We do not know in what circumstances he made that statement and whether it can be accepted as true. It may have been a statement which at that particular time he considered to be in his own interest. When he was faced with it in the witness-box he felt unable to deny it. On the other hand, we have the undoubted circumstances, that Darbari Lal accepted the plaintiff-appellant and Mathura Prasad as co-trustees that the names of all three were entered in the register of proprietors at their joint request and that the plaintiff-appellant and Mathura Prasad were associated with Darbari Lal in instituting suits in various Courts. In our judgment these circumstances are sufficient to justify the finding that Sheo Prasad was originally appointed one of the-trustees of this trust. We may add that it was so held in the appellate judgment in Suit No. 280 which the respondent himself has put up as res judicata. As we have already held that Sheo Prasad did not at any time give up his position, we must hold that he is still one of the trustees of this trust.
4. The next question which arises is whether the defendant-respondent is a trustee. It is urged that Darbari Lal had no power to make an appointment. We think that the question whether he had such a power depends on a consideration of the original deed executed by Mathura Prasad in 1908. In that deed, as we have already said, the power of appointment was expressly given to Hanuman Prasad. No other arrangement was made for the management of the trust property after it had passed into the control of the person appointed by Hanuman Prasad and we think it is reasonable to suppose that the creator of the trust intended that the power of appointment given to Hanuman Prasad should pass to his nominee so that each successive trustee might be in a position to appoint a person to act for him when he ceased to be a trustee himself. There is a further question whether Darbari Lal who was only one of the three trustees appointed by Hanuman Prasad could make a nomination or whether an appointment should have been made by the trustees jointly. Unfortunately, there is no document to establish the facts but we think that it may be presumed that Hanuman Prasad when he made his appointment intended that his property should be treated in the same way as the property of Mathura Prasad and as he appointed three trustees that he preferred that the trust should not be controlled by a single person. In these circumstances it is safe to assume that he intended that each one of the trustees should appoint a successor to himself so that there would always be three trustees to manage the property. In these circumstances we see no reason for holding that the appointment of the defendant-respondent was incompetent. In these circumstances, we cannot grant the first prayer of the plaintiff-appellant that we should declare that the defendant-respondent has no right to be a trustee of this trust, but as the defendant-respondent has denied throughout that the plaintiff-appellant, Sheo Prasad, has any right as a trustee, we think it is proper that we should grant under the alternative relief demanded a declaration that the plaintiff-appellant, Sheo Prasad and the defendant-respondent, Ram Ghander Prasad, are jointly entitled to act as trustees of this trust. We may mention that it was argued on behalf of the defendant-respondent that the suit should have been dismissed because the declaration which the plaintiff sought was in a negative instead of a positive form, that is, that the plaintiff instead of asking for a declaration that he was the sole trustee of this trust asked for a declaration that the defendant was not a trustee either jointly with him or separately. It seems to us that this objection is not one of substance, but as we are granting a positive declaration that the parties are joint trustees, the question does not arise. Another argument was that the plaintiff could not be granted a mere declaration that he was the sole trustee because he had not applied for the consequential relief of possession or an injunction. That might possibly have been a good objection if there had been any question of granting the plaintiff his first relief but as we are granting a declaration that the parties are jointly entitled to be trustees, the objection has no force. In the circumstances that we have now found to exist there would be no need for a decree for possession or for an injunction. The result is that we allow the appeal, set aside the decree of the learned Judge of the Court below and give the plaintiff a declaration that he and the defendant-respondent are entitled jointly to be trustees of this trust. In all the circumstances we think the parties should bear their own costs in both Courts and we direct that they shall do so.