Lindsay and Kanhaiya Lal, JJ.
1. This appeal arises out of a suit brought by the plaintiff (respondent) for a declaration that the plaintiff was entitled to act as the sarbarahkar of a certain temple and of the property appertaining thereto and for possession of the said property. The allegation of the plaintiff was that he had been appointed sarbarahkar of the said property and temple by Ganga Prasad, the founder of the trust, by a deed executed by him and registered on the 27th of February, 1901. By virtue of that deed Ganga Prasad had dedicated certain property for the benefit of the temple which he had constructed in his life-time, and appointed himself a trustee for his life and nominated the plaintiff as his successor in that office. By a subsequent document, executed by him on the 22nd of May, 1919, he appointed his nephews as trustees after him. These nephews are the defendants to the present suit. They succeeded in getting mutation of names effected, on the death of Ganga Prasad, in the revenue papers. The plaintiff contended that the defendants had obtained the deed from Ganga Prasad under undue influence, but they failed to prove that allegation. The courts below, however, decreed the claim of the plaintiff on the ground that, by virtue of the deed; of waqf of the 27th of February, 1901, Ganga Prasad had appointed the plaintiff as his successor in the office of trustee and that he had no power thereafter to appoint another man in his place. The view taken by the courts below is supported by the decision in Siddhan Lal v. Gauri Shankar (1917) 40 Indian Cases 165. Ordinarily the founder of a trust is entitled to provide for the management of the trust and to reserve to himself and his heirs the power to appoint trustees; but if he exercises that power and appoints a trustee, the trustee cannot be removed except in the manner laid down in Section 92 of the Code of Civil Procedure.
2. The defendants entered into possession of the trust property under the subsequent deed executed by. Ganga Prasad, by virtue of which they were appointed trustees in the place of the plaintiff. But Ganga Prasad had reserved no power to himself by the earlier deed to alter the scheme of management there laid down, and the subsequent appointment of other persons cannot, therefore, be upheld.
3. It is urged, on behalf of the defendants, that the suit ought to have been brought under Section 92 of the Code of Civil Procedure, but that section provides for the institution of a representative suit by the beneficiaries to secure the proper administration of a public trust either by the removal of the existing trustees or by the settlement of a scheme by which the object of the trust can be properly carried out. The removal of the trustees can be claimed on the ground of an alleged breach of trust, but no such ground is alleged here in regard to the defendants. All that is stated is that Ganga Prasad had committed a breach of trust by appointing new trustees in the place of the plaintiff. It is not stated that the defendants had committed any breach of trust. On the other hand the suit is, as the courts below point out, between rival claimants to the office of trustee. The plaintiff claims that office in his own right by virtue of the earlier deed executed by Ganga Prasad. The defendants claim the same office by virtue of a later deed, which, so far as it is inconsistent with the earlier one, is not enforceable. As pointed out by Woodroffe, J., in the case of Budree Das Mukim v. Chooni Lal Johrry (1906) I.L.R. 38 Calc. 789, in order to bring a case within the purview of Section 539 of the Code of Civil Procedure the suit must be a representative one, brought for the benefit of the public and to enforce a public right in respect of an express or constructive trust, upon a cause of action alleging a breach of trust or necessity for directions as to its administration, against a trustee of such express or constructive trust. Such trustee may be a trustee de jure or a trustee de son tort. But if the suit is between persons who individually claim a right to succeed to the office of trustee, Section 92 of the Code of Civil Procedure has no application. The right here set up is a personal right to act in a particular office. In Muhammad Abdul Majid Khan v. Ahmad, Said Khan (1913) I.L.R. 35 All. 459, it was held in somewhat similar circumstances that a suit by a person claiming to be a mutwalli of certain property, against another who had taken. possession of the same, dill not fall within the purview of Section 92.
4. We see no reason, therefore, to interfere with the decree passed by the courts below and dismiss the appeal with costs.