1. These are two connected appeals arising out of two suits brought in the Court of the District Judge of Benares with regard to the administration of a public trust. There is in the city of Benares a sangat, or monastery, of Nanak Shahi Udasi Sadhus, which has appertaining to it certain immoveable property in the shape of land, houses and trees. The manager of the trust is the Mahant, or religious head of the society, and it is not denied that the office ordinarily descends to the chosen disciple, or chela, of the deceased Mahant. In the year 1910 certain persons interested in the management of the trust obtained the permission of the Legal Remembrancer to institute a suit under the provisions of Section 92 of the Code of Civil Procedure for the removal of the trustee and the preparation of a scheme of management. The trust property was then in the possession of Sadho Prakash as Mahant, and with him were associated two persons named Makund Prakash and Sewa Das. By a decree dated March 1st, 1911, the District Judge of Benares removed these persons from the management and appointed one Baba Bichittar Singh as trustee. There was an unsuccessful appeal against this decree, and finally Baba Bichittar Singh died in September 1913 without having obtained effective possession of the trust property. Two persons named Mahant Makund Singh and Baba Hari Das appear to have asserted independently some sort of claim to succeed as of right to the office conferred by order of the Court on Baba Bichittar Singh; but nothing effective was done, and the management of the trust remained in confusion. Under these circumstances two distinct applications were made to the Legal Remembrancer for permission to institute suits under the provisions of Section 92 of the Civil Procedure Code, in order to obtain fresh directions from the District Court regarding the management of the trust. The Legal Remembrancer probably found it difficult, on the materials before him, to draw any distinction between the two sets of applicants; and on March 17th, 1914, he passed two separate orders, one in favour of each of them.
2. Two suits were accordingly instituted in the Court of the District Judge of Benares. In Suit No. 2 of 1914, instituted in April 1915 of that year, the plaintiffs were Govinda Nand, Daya Nand and Atma Nand, all described as 'Nanak Shahi Udasis', residents of Benares city. In Suit No. 3 of 1914, instituted on the 21st April 1914, the plaintiffs were Mahant Dharam Das and Saran Das, also described as 'Udasis' and residents of Benares city. In each suit the defendants originally impleaded were Sadho Prakash, Makund Prakash and Sewa Das, the trustees removed from office under the decree of March 1st, 1911, the allegation being that they had continued in effective possession and management of the trust property, in consequence of Baba Bichittar Singh's failure to secure the benefits of the decree in his favour. In each suit the plaintiffs at a later stage impleaded Mahant Makund Singh and Baba Hari Das as persons claiming an interest in the matter through Baba Bichittar Singh deceased. The plaintiffs in Suit No. 3 of 1914 went a step further. It appears that, after the two suits had been instituted, a question was raised by Sadho Prakash and the original defendants as to whether this sangat at Benares was not to be regarded as dependent in some way on what has been described as a parent institution in the city of Amritsar. One LachhmanPrakash, as Mahant of a monastery at Amritsar, came forward to assert a right of interference in the affairs of the trust now in suit. He purported to make over the management to a body known as the Panchaiti Akhara of Udasi Sadhus. Documents were executed, by Sadho Prakash on the 15th April 1914, and by Lachhman Prakash on 28th April 1914, purporting to give some sort of legal colour to these arrangements. The plaintiffs in Suit No. 3 of 1914 proceeded accordingly to implead, first, Laohhman Prakash of Amritsar, and secondly, a group of defendants understood to represent the Panchaiti Akhara. The plaintiffs in Suit No. 2 of 1914 refused to implead these persons, and resisted a contention that they were in any way necessary parties to their suit.
3. The District Judge has tried the two suits together, in the sense that they were regularly set down for hearing on the same dates. He has written identical judgments and passed practically identical decrees in the two suits. At the same time he has kept the suits distinct and separate in important respects. He has not impleaded the plaintiffs in Suit No. 3 as defendants in Suit No. 2, or vice versa. He has not merely repelled the contention that Lachhman Prakash of Amritsar and the representatives of the Panchaiti Akhara were necessary parties to Suit No. 2 of 1914, but he has not apparently even considered the question whether it might not be advisable for him to bring them on the record as persons 'whose presence before the Court maybe necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit,' under the very wide powers conferred on the Court by the provisions of Order I, Rule 10, of the Code of Civil Procedure. Finally, we have failed to discover on the record of either suit any formal order to the effect that evidence taken in the one suit may be treated as evidence in the other.
4. The identical decrees passed in two suits are to the following effect:
(a) Govinda Nand, one of the plaintiffs in Suit No. 2 of 1914, is appointed trustee of the disputed trust in succession to Baba Bichittar Singh deceased, and the entire trust property has been declared vested in him.
(b) It is declared that all the other parties to both the litigations, including, therefore, the plaintiffs in Suit No. 3 of 1914 and those defendants to that suit who were not impleaded at all in Suit No. 2 of 1914, 'be divested of any right or interest' in the trust property.
(c) Grovinda Nand is directed to take possession of the sangat and of the trust property, with a declaration that this right will descend to 'his successors' after him; and there is a brief declaration as to the objects of the trust.
5. The effect of the procedure adopted in the Court below has been to land us in a perfect quagmire of legal technicalities. I may say at once that these could all have been avoided if the learned District Judge had made a free and intelligent use of his powers under Order I, Rule 10, of the Code of Civil Procedure. I have no doubt that those powers ought to have been exercised in order to make the plaintiffs in Suit No. 2 of 1914 defendants in Suit No. 3 of 1914, and vice versa. It would also have been advisable for all the defendants finally brought upon the record of Suit No. 3 of 1914 to have been formally impleaded also in the connected suit.
6. In this connection I would add a further, remark which may be found useful as a direction to District Courts in dealing with other suits of this nature. There can be no doubt that, in appointing a trustee in a suit brought under Section 92 of the Code of Civil Procedure, the choice of the Court is not limited to the array of parties in the suit before it. The duty of the Court is to appoint the most suitable persons available, whether originally impleaded in the litigation or not. Nevertheless, I think that the person whom the Court proposes to appoint should always be formally impleaded as a defendant before the final decree is passed, The terms of Order I, Rule 10, of the Civil Procedure Code are obviously wide enough to justify such an order. Indeed I am of opinion that the trial of the suit will always be simplified if the Trial Court, as soon as it has evidence before it suggesting a particular person as a suitable trustee, should call upon that person to file a written statement, expressing his willingness to accept the office and putting forward his own qualifications. All the parties concerned will then have timely notice of what is proposed to be done, and will not be able to contend in appeal that they were taken by surprise, or prevented from proving that the person eventually appointed to the trusteeship was not really qualified for the post. Moreover, the Appellate Court will not then be faced by the anomaly of having before it an appeal by an unsuccessful litigant against a decree in favour of a person who was not formally a party to the suit in the Court before.
7. In the two appeals now in question we were faced at the very outset by technical difficulties regarding the array of parties. First Appeal No. 222 of 1915 was filed by Mahant Dharam Das, the principal plaintiff in Suit No. 3 of 1914. He impleaded as respondents all the persons who had been on the record of that suit as defendants; but he did not implead Govinda Nand, the newly appointed trustee, though the whole object of his appeal was to obtain the reversal of that gentleman's appointment. He was naturally met at the outset by the objection that no order passed in an appeal to which Govinda Nand was no party could possibly have the effect of reversing the decree in Govinda Nand's favour. On the other hand, the connected First Appeal No. 249 of 1915 was filed by the representatives of the Panchaiti Akhara. The objection was at once taken that this appeal was technically an appeal against the decree in Suit No. 2 of 1914, to which suit these appellants had not been made parties at all.
8. We endeavoured to meet these difficulties in the first instance by formally adding as respondents to each of the appeals all the parties to the connected appeal not already impleaded in each case; but this did not altogether obviate further controversy as to the validity and legal effect of our order.
9. In considering the legal position of the parties, as the two records now stand before us for disposal, I do not think it necessary to invoke the principles laid down in Sir Dinshaw v. Sir Jamsetji 2 Ind. Cas. 701 : 33 B. 609 11 Bom. L.R. 85 : 5 M.L.T 30 as to the general effect of decrees passed in suits under Section 92 of the Code of Civil Procedure, though I believe those principles to be sound. As regards the representatives of the Panchaiti Ahhara I take it that they have appealed against the decree appointing Govinda Nand trustee of the property in suit. A decree to this effect was passed in Suit No. 3 of 1914, to which these persons were parties, as well as in Suit No. 2 of 1914, to which they were not parties. I am not at all sure that these appellants are themselves responsible for the fact that their appeal has been treated, in the preparation of the record, as one solely against the decree in Suit No. 2 of 1914. I put my point in this way: the appellants in First Appeal No. 249 of 1915 either have appealed against the decree in Suit No. 3 of 1914, or they have not. If they have not, they remain bound by its terms; for it was a decree passed in a litigation to which they were parties, and within the competence of the Court to pass, even if Suit No. 3 of 1914 had been the only litigation before it. I am content to take it that these representatives of the Panchaiti Akhara are in substance appealing against both decrees, or at any rate are undoubtedly appealing against the decree which they could not afford to ignore, namely, the decree in Suit No. 3 of 1914. The difficulty as to Govinda Nand's not having been formally impleaded in Suit No. 3 of 1914 I would lay aside as a mere technicality. I think there ought to have been an order formally adding him as a defendant in that suit; but I hold that when the Court below passed a deoree appointing him trustee of the endowment, a decree which, I must repeat and insist upon the point, the Court was just as competent to pass in Suit No. 3 of 1914 as in Suit No. 2 of 1914, it did in effect make him a party to the former of these suits as well, to this extent at any rate that he ought to have been impleaded as a respondent in any appeal against the decree in Suit No. 3 of 1914. I, therefore, regard the order of this Court adding Govinda Nand as respondent to First Appeal No. 222 of 1915 as one which it was within the competence of this Court to pass, and which removes any formal defect which there might otherwise be about the array of parties in this appeal.
10. I now proceed to deal with both these appeals on the merits, treating them, in the first instance, as if they were both of them appeals against the decree passed in Suit No. 3 of 1914. I propose to pass a separate order on First Appeal No. 249 of 1915, dealing with that appeal on the assumption that it can be regarded as an appeal against the decree in Suit No. 2 of 1914.
11. In the memorandum of appeal filed by Mahant Dharam Das there are nine paragraphs. The seventh contains an allegation as to the improper exclusion of evidence, which was not pressed in argument. The eighth attacks the declaration in the decree as to the objects' of the trust in one small matter of detail; the point is of little importance, but it has not been shown to us that the decision of the Court below was wrong. In the ninth there is a suggestion that that the wording of the decree is defective and that it is not clear what the Court below meant by vesting the trusteeship in Govinda Nand and his successors. I have no doubt the District Judge meant that Govinda Nand would have the right to nominate a suitable disciple or chela to succeed him, just as the Mahant had always done during the previous history of the foundation.
12. The remaining pleas amount to nothing more than this, that Govinda Nand is not a fit and proper person to be trustee of this endowment, and that the appellant Dharam Das is. This question is complicated by somewhat vaguely worded pleas asserting the right of the appellant to be appointed, and suggesting that there has been no proper inquiry into 'the custom and practice' of this monastery. In this connection it seems necessary to lay stress on the fact that there is no plea to the effect that the property in suit does not appertain to a 'trust created for public purposes of a charitable or religious nature', within the meaning of Section 92 of the Code of Civil Procedure. Of course the appellant Dharam Das could not possibly take this point; he was himself suing under that section. The pleadings of Lachhman Prakash of Amritsar and of the defendants representing the Panchaiti Akhara are perhaps a little ambiguous, but I do not find that the right of the Court to deal with all the property in suit under Section 92 of the Code of Civil Procedure was ever definitely challenged. These suits must, therefore, be distinguished from all suits in which the position of the Mahant of a monastery, or similar association, has been claimed to be that of a corporation sole,' or in which the litigation has been between persons claiming as of right that the office of Mahant had vested in them and in which none of the parties concerned had invoked the provisions of Section 92 of the Civil Procedure Code. The law applicable to suits under this section is laid down in the case of Mahomed Ismail Ariff v. Ahmed Moolla Dawood 35 Ind. Cas. 30 : A.L.J. 741 : (1916) 1 M.W.N. 460 : 20 C.W.N. 1118 : 20 M.L.T. 110 : 18 Bom. L.R. 611 : 31 M.L.J. 290 : 24 C.L.J. 198 : 4 L.W. 269 : 9 Bur. L.T. 141 : 43 C. 1085. The Court has 'complete discretion' in arranging for the management of a trust to which this section applies. No doubt it is the duty of the Court to take into consideration such matters as the 'wishes of the founder' (where these can be ascertained), and 'also the past history of the institution and the way in which the management has been carried on heretofore;' but the question which we have to determine is merely whether there has been a proper exercise of discretion on the part of the Court below. That the said Court was within its jurisdiction in appointing Govinda Nand is simply beyond question.
13. Nor can any party be heard to plead any right purporting to be derived by any transfer or devolution from Mahant Sadho Prakash of a date subsequent to the decree of March 1st, 1911. The effect of that decree was finally to divest Sadho Prakash and the two defendants impleaded along with him of all title to the office of Mahant of this sangat, or to the management of this trust, and of all right to possession in respect of th6 trust property. From the date of that decree nothing remained to Sadho Prakash which he could transfer to anybody else by deed, or which could devolve on any one else by virtue of any supposed relinquishment or surrender. Moreover, the decree of March 1st 1911 appointed a new trustee; it thus extinguished the right of any person to succeed by inheritance or under the custom of the institution, in the event of the death of Sadho Prakash or of his voluntarily vacating the office. There has in fact been no such vacating of the office by Sadho Prakash; he was removed by the decree of a competent Court, and it is sheer contumacy on his part to profess to be able to transfer the trusteeship, or to surrender it in favour of any other person, after the date of the decree.
14. Once these points are clearly apprehended there remains no force whatever in First Appeal No. 222 of 1915. The reasons given by the District Judge for refusing to appoint Mahant Dharam Das to the trusteeship are perfectly sound. The man was trying to ran with the hares and hunt with the hounds. He actually accepted a deed of gift, dated February 1st 1913, from Sadho Prakash, and the learned' Judge had, in my opinion, good reason for regarding him as belonging to the 'same gang' as Sadho Prakash and his co-defendants. I strongly suspect his suit of having been largely collusive, at any rate to this extent that it was intended as a counterblast to Suit No. 2 of 1914, and was filed in the hope that in any event the management of the trust might be retained by the knot of dishonest trustees whom the decree of March 1st, 1911, was intended to displace. There is no force in the plea that Govinda Nand was disqualified from the office of Mahant by anything in the constitution of established customs of this sangat. The learned Judge has, in my opinion, shown due regard to the past history of the institution and the way in which the management had been carried on heretofore, when he decided that the thing most to be desired in the interests of the trust was the complete and final exclusion of Sadho Prakash and his friends from all concern with the management. As regards the custom and practice of the institution, the only custom established by reliable evidence is that the Mahant for the time being has the right to appoint a chosen disciple, or chela, to Succeed him on his death. This custom could not be pleaded by any person claiming as heir to Sadho Prakash, for reasons already stated. If any party to the litigation could set up any-arguable plea on the basis of this custom, it would be those defendants who claimed some sort of devolution from Baba Bichittar Singh, the trustee appointed by the decree of March 1st, 1911. These defendants have not appealed against the decree of the Court below, so that their case is not before us and need not be discussed.
15. I now pass on to consider the pleas taken by the appellants in First Appeal No. 249 of 1915, the representatives of the Panchtaiti Akhara.
16. The one plea in their memorandum of appeal about which I have felt a certain amount of difficulty is the plea that their case was prejudiced by the procedure followed in the Court below. The suggestion is that, if they had been made defendants in Suit No. 2 of 1914, they could have produced evidence against the fitness of Govinda Nand 'for appointment as trustee, which they were precluded from producing by the procedure actually followed. I have come to the conclusion that there is no real substance in this plea. It seems to me that these appellants, as defendants in Suit No. 3 of. 1914, had every opportunity of Supporting the case set up by them, and that this case has been rightly decided against them on the merits. In view of the manner in which the two suits were conducted in the Court below, it is absurd to Suggest that these appellants did not know that Govinda Nand was a candidate for appointment as trustee, or that a decree so appointing him could lawfully be passed in Suit No. 3 of 1914 as well as in Suit No. 2 of 1914. They never took up the position that the Mahantship was in fact vacant, and that they were prepared to put forward one of their own body as a preferential candidate for the office of Mahant, with claims supesrior to those of Govinda Nand.
17. They Came into the litigation under the wing of Lachhman Prakash, the Mahant from Amritsar, and their written Statement requires to be considered along with him. It is interesting to notice that Lachman Prakash endeavoured to conceal the fact that he had taken a deed of transfer from Sadho Prakash. He certainly had no arguable case on the basis of that deed of transfer, but it does not seem to me that he even attempted to set up such a case. What he said was that he himself, as Mahant of an institution known as the Chitta Akhara of Amritsar, was the true head of the sangat at Benares and manager of the trust in suit. He represented the local Mahant at Benares as a mere agent of his own, appointed by him and removable at his pleasure. He alleged that he had, in the exercise of his lawful authority, removed Sadho Prakash from the management and made over the same to the Panchaiti Akhara. The present appellants, as representatives of this institution, simply associated themselves with the above pleas. They have been decided against the appellants by the learned District Judge, and the case against them is, in my opinion, overwhelming. There is no evidence worthy of consideration of the alleged subordination of the Mahants of the Benares Sangat to the so called 'parent institution' at Amritsar. In the suit decided in March 1911 Lachhman Prakash, though cognizant of the proceedings, never set up any such plea, but on the contrary came forward as a candidate for appointment by the Court, in the event of its removing Sadho Prakash. If it were necessary, I should even be prepared to hold that the point is concluded against Laohhman Praksh by the decree of March 1st, 1911.
18. I think the learned District Judge has taken a substantially correct view of the effect of this previous litigation on the present suits. I have said enough to dispose of all the points taken in the memorandum of appeal now under consideration. The plea that the Court below was mistaken in holding that the office of Mahant became vacant on the death of Baba Biohittar Singh might have required consideration, if it had been put forward by persons claiming to be his heirs and successors under the custom of the institution. In the mouth of the present appellants it does not mean that (the office has vested de jure in any such heir or successor, but that Bichittar Singh (in spite of the decree in his favour) was never the Mahant of this institution, and that Laohhman Prakash was all, along the true Mahant. The objections taken by the present appellants to the appointment of Govinda Nand are substantially those taken in the other appeal. If the plea had been taken that the learned District Judge had acted irregularly in basing his decree (appointing Govinda Nand) in Suit No. 3 of 1914 partly on the strength of evidence recorded in Suit No. 2 of 1914, it would have required consideration. It could never, in my opinion, have been more than a question of form; but it has not been taken at all in appeal, and we are under no obligation to discuss it.
19. I would, therefore, dismiss First Appeal No. 222 of 1915 with costs, including fees on the higher scale. I would add to the same decree a direction that, if First Appeal No. 249 of 1915 be regarded as an appeal against the decree in Suit Nos 3 of 1914, and in so far as it is susceptible of being so regarded, it do also stand dismissed, the question of the costs of that appeal being reserved for a separate order and a further decree which I propose to pass on the record of that appeal itself.
20. See my judgment delivered today in the connected First Appeal No. 249 of 1915. See 40 Ind. Cas. 182.
21. This appeal is dismissed with costs including fees on the higher scale. It is also directed that if the connected First Appeal Nos. 249 of 1915 be regarded as an appeal against the decree in Suit No. 3 of 1914, and in so far as it is susceptible of being so regarded, it do also stand dismissed.