1. This is an application in revision to gat revised an order of the District Judge of Aligarh dated the 25th of July, 1921, rather difficult to define and say under what Act or section it was passed.
2. It is necessary to state briefly certain facts leading up do this application before disposing of it finally.
3. Kunwar Mahendrajit's grand-father, Rao Umrao Singh, died in the year 1898, leaving a considerable estate behind him and considerable debts. It is admitted that some years afterwards, his three sons representing the three branches became separate in estate. In order to arrange for the payment of the debts that were outstanding, the three brothers, on the 1st of August, 1912, executed a dead of trust under which three trustees were appointed to take charge of the management of the entire estate and to pry out of its income the debts that; were standing against it Provisions ware made how in ease of the death of any of the trustees his successor should be appointed. We may mention that in 1912 Mahendrajit Singh was a minor of tender years and ha could not himself have bean a party to the deed and there can be no doubt that his father Hari Raj Singh acted as the head of the family and entered into the deed of trust along with his brothers. In 1918, Hari Raj Singh unfortunately died. After his death his widow was appointed the guardian of the person and property of the minor by an order dated the 16th of February, 1920. The learned Judga who pissed that order thought that it was desirable that the management should continue in the hands of the trustees so long as the Court of Wards did not take over the management of the minor's share in the estate. Accordingly in appointing Rani Rajindar Kuar, the widow, as the guardian of her minor son, he made reservations that the management of the property should continue to vest in the trustees pending the decision of the question whether it could not be taken over by the Court of Wards. Subsequently it seams to have been conceded by all the parties concerned that it was not possible for the Court of Wards to take over charge of the minor's share unless his interest be separated and his liability clearly defined. With a view to carry out his purpose the learned District Judga permitted the guardian to enter into a deed of partition with the other proprietors, under which the minor's share was separated and the exact amount of hi3 liability allocated. This deed was executed after the sanction of the District Judge on the 9th of August, 1921, and was duly registered. In his order the learned Judge sanctioned the continuance of the property of the minor under the management of the existing trustees with the addition of the name of Rani Rajinder Kuar as a trustee. There were numerous subsequent orders or directions under which) the trustees were directed that Rs. 500 a month should be paid to the widow as maintenance allowance to her and her minor son.
4. For some reasons which it is not necessary to consider here, Rani Rajender Kuat became dissatisfied with the managemenr of the other trustees, Numerous applications one after another, were filed in the Court complaining against the trustees and pointing out various grievances said to exist. The order in question is supposed to have been passed on one of the nine applications made by her.
5. Under the order before us the learned Judge after expressing the view that it was no longer in the interest of the minor that the trustees should continue to manage the minor's property when his mother was altogether excluded from the management, said that ha thereby 'cancelled the trust.' Ha also directed that the Rani herself should manage the property of the minor and that as she was a pardanashin lady, she should employ two leading pleaders of the Court to work as managers of the estate on a remuneration fixed.
6. So far as the order of the District Judge can be said to amount to directions given by him to the guardian under Section 32 of the Guardian and Wards Act, it is impossible to say that it was without jurisdiction. Whether that order was a proper one or not, was a matter for the District Judge to consider. It is even now open to him to reconsider those directions at any time if certain fresh circumstances are brought to his notice and he is satisfied that the pardanashin guardian cannot be a 6t parson to manage the estate. Those directions are also open to a further amendment in case the Court of Wards is actually prepared to take over the charge of the minor's estate. We, therefore, do not propose to say anything with regard to this order so far as it affects the guardian appointed by the Court.
7. The question that remains is: How far that order can bind the trustees?
It is clear that an order purporting to be passed under the Guardian and Wards Act cannot bind third parties who are in possession of the estate. It ha3 been laid down in several case3 that under the Guardian and Wards Act a District Judge has no jurisdiction to dispossess third persons from the property over which they may be, rightly or wrongly, in possession, but can at best give directions to the guardian to take necessary steps to recover the property.
8. The learned Advocate for the respondent has contended that inasmuch as the deed of partition had been sanctioned by the District Judge and as such sanction was absolutely necessary under Section 7 of the Indian Trust Act, it must be taken that the trustees came under the direst control and supervision of the District Judge and that he had absolute power of directing them to give up possession at any time when he was satisfied that they could not act in the interests of the minor. We are unable to accept this contention. It is true that the dead of partition was executed after the sanction of the District Judge had been obtained, but the sanction of the District Judge merely amounted to a permission to the guardian to enter into a deed of partition. Assuming for the sake of argument that this partition deed really created a new trust, even than the creation of the trust must be deemed to have been made by the guardian after the permission of the Judge. It cannot be said that it was the District Judge who appointed the trustees. The trustees not having been directly appointed by the Judge are not under his direct control and the learned Judge in a summary proceeding had no jurisdiction either to issue orders to the trustees to hand over the possession of the property or to terminate the trust. We are far from saying that the partition deed of 1921 created anew trust. On the other hand, in the proceedings it seams to have bean assumed all along that the old trust which was created by the deceased father of the minor, who than admittedly was the head of the family, was still in existence. Even in his order dated the 9th of August, 1921 Mr. Same referred to that trust as the existing trust. The deed of partition also does not anywhere suggest that the old trust had terminated and a new trust was being created If, therefore, it be taken that the old trust had continued and all that had happened was that a new trustee was added than the learned District Judge would still more clearly have no jurisdiction to set that old trust aside. On the other hand, even if it be assumed that a new trust was created on behalf of the minor by the guardian in 1921, it cannot be cancelled or revoked unless the case falls within the provisions of Sections 77 and 78 of the Indian Trus Act. Section 77 obviously cannot apply because the purpose, namely the payment of the debts for which it was created, has not been completely fulfilled, nor has it become unlawful, nor impossible. Sub-clauses (a) and (6) of Section 78 do not apply. The learned Advocate for the respondent has contended strenuously that Clause (c) of Section 78 does apply and ha says that this is a case where the trust, being for the payment of the debts of the author of the trust and not having been communicated to the creditors, is liable to be revoked at the pleasure of the author of the trust. The first difficulty in his way was that there ware three authors of the trust and only one of them can be said to be trying to revoke it. The learned Advocate, however, has tried to get over it by saying that this is really a composite document under which three distinct trust were created and that therefore under the Trust Act this is merely a revocation of the trust by its sole author. But assuming that that position can be taken, it is clear that Clause (c) does not apply unless it would be a fact that the trust has not been communicated to the creditors. In the present case this of course is impossible to say. Although the creditors were no parties to the dead of partition or the deed of trust nevertheless they have been receiving part of the debts all along from the trustees and there is no suggestion, either in the applications or anywhere on the record that the trust had not been brought to their notice. The learned District Judge has not passed this order on this ground, nor was this made a ground of attack in the applications filed on behalf of the Rani. It, therefore, seems to us that this cannot be said to be a case where the trust can be revoked by the District Judge in these proceedings.
9. On the other hand, it may be possible for the minor to say that he is not bound by the deed of trust which was created by his father as joint owner of the property. That would be a mixed question of law and fact which cannot be decided in these summary proceedings. It may also be open to the guardian of the minor to have this deed of trust set aside by a subsequent instrument or through Court. Or if there was in reality no trust at all but a mere appointment of managers, her course would be easier.
10. We accordingly do not in any way wish to suggest that it is not open to the guardian to have the deed set aside or revoked in the way open to her and allowed by law. All that we wish to say is that in these summary proceedings the learned Judge had no jurisdiction to pass an order setting aside the trust so as to bind the trustees for all time to come and compel them to hand over the property immediately. If really the trust can be revoked and has been validly revoked by the guardian, then the possession of the minor's estate by the trustees would be without right and they may be liable to pay mesne profits to the minor. But that is altogether a different question.
11. We are accordingly of opinion that the order of the learned District; Judge cancelling the trust as against the present trustees was passed without jurisdiction and cannot be upheld.
12. We may, however, note that Mr. Durga Charan Banerji and Mr. Sapru on behalf of the trustees have given an undertaking that they have never objected to the payment of Rs. 500 a month to the Rani Saheba for her maintenance and the maintenance of her son so long as the management remains in their hands and they undertake to pay this sum to her regularly month by month.
13. In view of these undertakings we would set aside the order of the District Judge so far as the trustees are concerned, leaving the contents of that order as if they were mere directions to the guardian to take steps as directed. We would also like to add that the receipt of the monthly allowance of Rs. 500 by the lady from the trustees would in no way prejudice her right to get this trust revoked or cancelled in the way allowed by law.
14. In view of the fact that, except on the last date when the trustee did not agree to the trust being put an end to at once, there seems to have been some acquiescence on their part in the procedure adopted by the learned Judge, we direct the parties to bear their own costs of these proceedings both here and in the Court below.