P.N. Shinghal, J.
1. The suit giving rise to this appeal against the judgment and decree of the District Judge of Bharatpur, dated March 4, 1960, was raised on October, 5, 1953 by Gopinath, Ramprasad and Mangilal, in a representative capacity, on behalf of the general public of Gangapur City, with the sanction of the Advocate General under Section 92 of the Code of Civil Procedure. Plaintiff Ramprasaddied during the course of the trial and his name was therefore struck off.
2. The property shown in site plan Ex. X (filed with the plaint) and described in paragraph 2 of the plaint is situated, near Mahu gate, in Gangapur town on the railway station road. It consists of a 'bagichi' (or small garden), with a 'dharamshala', a well, a 'Chatri' etc. According to the plaintiffs, it was known as Bhagat-wali-bagichi and the villagers used to take their bath on the well and worship the idol of Mahadevji in the 'chatri'. It was the case of the plaintiffs that the 'bagichi' had been built by the residents of Gangapur and that it was dedicated in trust for the use of the travellers and 'sadhus'. The general public also used to take advantage of the 'bagichi'
Further, the plaintiffs pleaded that on April 13, 1934, one Umraosingh alias Ramanand Das, who had become a 'san-yasi' aftet retirement from Government service, took the permission of the Tehsil-dar to complete that portion of the property which has been shown at No. 1 in the site plan (Ex. X) and that he also took permission to erect a 'pator' (or a hut of stones without the use of lime) on the eastern side, and that this permission was granted on the specific condition that the property shall continue to remain the property of the trust. Ramanand Das made the constructions for which he obtained the permission of the tehsildar, and he again approached the Tehsildar for permission to erect another 'pator' at the place shown at No. 2 in the site plan so that the main building may not be spoiled by using it as a kitchen. He obtained the permission on June 25, 1935, but. according to the plaintiffs, he could not erect the 'pator' even though he used to manage the 'bagichi' including the 'dharamshala' the 'pator' the well etc. as trust property. He however appointed defendant Ramjilal and one Sunderlal (defendant 4) as trustees by a registered document dated August 4, 1936 (Ex 3) with the direction that the trust property should be utilised for the resident of travellers and 'sanyasis' He died thereafter and the persons nominated by him began to function as trustees.
Sunderlal, it was alleged renounced his status as trustees and left Gangapur some 10 vears ago. He became untracenble and defendant Ramiila) began to manage the trust property exclusivelv bv giving it out that Sunderlal had died. He began to use the premises for the Arya Samai He also started living with his family in the 'pator' which the public had erected a1 the place shown at No. 2 in the site plan and then he built an enclosure around it. The plaintiffs felt aggrieved because of this conduct oi defendant Ramjilal. Theyalso felt aggrieved because he executed fictitious gift deed Ex. 18 on July 4, 1953 in favour of his wife Smt. Durga Devi defendant No. 2 and also because he drew up fictitious trust deed Ex. 19 dated June 25, 1953 in favour of his son Suraj Narain defendant No. 3. It was also alleged that Ramjilal removed the idol of Mahadevji and in this way prevented the worship in the 'chatri'. Certain other instances of misconduct were also given, but it is not necessary to refer to all of them.
The plaintiffs pleaded that they were interested in the proper management of the trust property and that they had obtained the consent in writing of the Advocate General to institute the present suit for the removal of defendants Ramji-lal, Surai Narain and Sunderlal from their office as trustees and for the appointment of a suitable person in their place in whom the entire trust property may be ordered to vest. It was also prayed that the gift deed dated July 4, 1953 may be declared to be null and void.
3. Defendant Ramjilal denied the existence of Bhagat-wali-bagichi in Gangapur. He pleaded that there was of course a well and a 'chatri' at different places but that property had nothing to do with the trust in respect of the 'dharamshala'. He took the plea that the 'pator' and the 'chatri' were known after one Maiji, while the 'dharamshala' was known after Ramanand Das and the well was known as 'Bhagat-wala-well' He categorically denied that all these were situated in one compound. So also, he denied the particulars of the suit property given in the plaint. He pleaded that the public was continuing to use the well as before, that he did not find the idol of Mahadevii in the 'chatri', that the 'bagichi' was not built by the residents of Gangapur and that they did not spend money over it and it was not a trust property. It was thus the main line of the defence that only the 'dharamshala' (shown at No 1 in the site plan) was the trust property having been built by Ramanand Das, He denied thai any 'pator' was built by Ramanand Das, but admitted that Ghasi-giri and Kashigiri Goswamis used to look after the 'chatri'. He also admitted that Sunderlal looked after the 'pator' of Kashigiri as 3 trustee after Kashigiri's death He pleaded that Sunderlal sold his property in Gangapur and went away. and that he had therefore to manage the 'dharamshala' and the Maijiwala 'pator' as a trustee and that from 1953 it was Surainarain defendant No. 3 who was discharging those duties
As regards the 'pator' shown at No. 2 in the site plan, the defendant pleaded that it belonged to him and was in his possession and that it was not the properly of any trust although it had been built on Government land. He denied that he had misconducted himself in the management of the trust property, but admitted having appointed his son Suraj Narain as a trustee. alleging that the trust was a private trust. The interest of the plaintiffs in the suit property was denied and it was pleaded that the gift deed was in respect of the defendant's private property and was valid. The defendant also pleaded that he was no longer the trustee because of the appointment of Sura.i Narain as the trustee under trust-deed Ex.. 19. The main line of the defence therefore was that the 'dharymshala' had been built by Ramanand Das and it alone was the property of the trust which he created, while the disputed portion of the property shown at No. 2 in site plan Ex. X was Ram.iilal's private property.
He pleaded that the Khandelwals of Gangapur had raised an objection during the lifetime of Ramanand Das. before the concerned revenue authority of State of Jaipur, that Ramanand Das was not allowing the travellers to stav in the 'dharamshala'. and that the bagichi' belonged to them, but they failed in getting redress. The defendant further pleaded that Ramprasad plaintiff No. 2, along with some others, tried to have the 'dharamshala', the well and the other property declared as public property of the Khandelwals when there was a survey of the town of Gangapur, but without success. According to him the plaintiffs could not succeed in a suit under Section 92 of the Code of Civil Procedure because a period of 12 years had passed in the meantime.
4. Defendant Smt. Durga Deyi, wife of Ramjilal defendant No, 1, was impleaded in the suit because of the gift deed (Ex. 18) which was made by Ramiila! in her favour on July 4, 1953 in respect of the disputed property (shown at No 2 in the site plan). She ioined her husband in denying the existence of Bhagat-wali-bagichi. She pleaded that the disputed portion of the building had been built by her husband and had been sifted to her so that she was its owner in possession. It is not necessary to refer to her other pleas beyond stating that she took the defence that the disputed property was situated on the vacant land of the State and that her husband Ramjilal had built it for his residence and it was not a Part of the trust property.
5. Defendant Surajnarain, son of defendant Ramjilal, in whose favour Ramji-lal executed trust deed Ex. 19 on June 25, 1953. also took the same line of defence and he denied the alleged misconductin the management of the trust. Defendant Sunderlal who, as has been stated, was one of the trustees appointed by Ramanand Das under his will Ex. 3 dated August 4, 1936, filed a long written statement, but in substance he supported the pleas taken by the other defendants and I need not refer to it in any detail.
6. The learned District Judge framed issues on the various points in controversy between the parties, and while he held that the 'bagichi' was known as Bhagat-wali-bagichi, he found that the disputed property (shewn at No. 2 in the site plan) was the personal property of defendant Ratnjilal while the 'dharamshala''. the 'chatri' and the 'pators' were waqf properties. He held, however, that they were not built by any public subscription. He also held that after the execution of the deed of trust Ex. 19 dated June 25, 1953, Ramjilal was no longer the trustee and that it was Suraj Narain who became the trustee. He further held that the trust in question was a public trust and that the suit was maintainable in respect of the 'dharamshala' which alone was the subject-matter of the trust created by Ramanand Das.
The District Judge also held that the plaintiffs had not succeeded in proving that they had subscribed to the construction of the 'dharamshala' and he therefore took the view that as they were not the descendants of the founder of the trust, and were not its beneficieries, they had no real, substantial and existing interest in the trust property. The learned Judge went on to hold, further, that there was no evidence that Ramjilal mismanaged or mis-used the trust property as alleged by the plaintiffs and he therefore decided that the allegation that he was residing in the property and did not allow the passengers to stay there, or that he was not a fit person to continue as a trustee, were not justified. Accordingly, he dismissed the suit with costs by his judgment dated March 4, 1960 and this has given rise to the present, appeal of the plaintiffs.
7. It may be mentioned that plaintiff Gopinath died during the pendencv of the appeal and the application for substitution of his personal legal representatives was rejected by this Court. Defendant Ramiilal also died on November 2, 1963 and his legal representatives have been brought on the record.
8. At the hearing of the appeal, I first ascertained from the learned counsel for the respondents whether he was going to contend in this Court also that only the 'dharamshala' shown at No. 1 in the site plan was the property of the trust and whether it was still the case of the defendants that it was a private trust Mr. Bhandari frankly conceded, however,that he would not place his case that high, and that the Court may proceed to decide it on the basis of his concession that the whole of the property shown in the aforesaid site plan was the property of a public trust, except for that part of it which has been marked in green chalk in the north-western corner and has been shown at No. 2 in the site plan.
Mr. Bhandari is no doubt correct in making this submission because there is overwhelming evidence on the record to show that the ''dharamshala'' (shown at No. 1), the well (shown at No. 3), the 'chabutri' (shown at No. 4) and the 'pator' (shown at No. 5) are undoubtedly the properties of a public trust. I have therefore to decide the question whether the property shown at No. 2 in the site plan, which alone shall hereafter be referred to as the disputed property, was also a part of that trust as claimed by the plaintiffs, or whether it was the self-acquired property of defendant Ramjilal. It may be mentioned that the disputed property is situated towards the north of the 'dharamshala' quite close to it, and is separated by a compound wall which runs through and through and has been marked A to B in the site plan. It separates the well altogether from the rest of the property.
9. Before considering, however, the merits of the appeal, I shall examine the preliminary objection of Mr. Bhandari, learned counsel for the respondents, that the appeal cannot be maintained because of the death of appellant Gopinath and the failure to substitute some- other person in his place as an appellant. The learned counsel has argued that as the suit was brought by the three plaintiffs with the consent of the Advocate General, and as plaintiff Ramprasad died during the course of the trial and no legal representative was brought on the record in his place, the only one surviving plaintiff could not maintain the appeal after the death of Gopinath. for that would reduce the number of the plaintiffs to one while it is the requirement of Section 92 of the Code of Civil Procedure that the suit should be instituted by two or more persons The learned counsel has placed reliance on Raja Anand Rao v. Ramdas Daduram. AIR 1921 PC 123 and Mt Ali Begam v. Badra-ul-Islam Ali Khan, AIR 1938 PC 184 and has argued that it was necessary to bring the other members of the public on the record in order to maintain the appeal.
10. I do not, however, see any thing in the two judgments of their Lordships of the Privy Council which could be said to support Mr. Bhandari's contention. In Raja Anand Rao's case, AIR 1921 PC 123 it was argued that the person who originally raised the suit and got the sanction having died, the suit could not go on. The argument was repelled by their Lordships for the reason that it was a suit which was not prosecuted by individuals for their own interest but as representatives of the general public
So also in Mt. AH Begam's case, AIR 1938 PC 184 their Lordships of the Privy Council held that the consent in writing of the Advocate General required by Section 92 was a condition to the valid in-stitution of the suit, and had no reference to any other stage, so that when the suit was once validly instituted, it was a representative suit subject to all the incidents affecting suits in general and representative suits in particular. They saw no reason why one of several plaintiffs in such a suit should not appeal on the same terms and conditions as those applicable to suits in general. It would thus appeal that the two cases cited by Mr. Bhandari do not support his contention but, cm the other hand, go to show that it is not correct I have no doubt therefore that this appeal can be maintained by the surviving plaintiff as appellant, and 1 may in this connection make a reference to Parmeshri Das v. Girdhari Lal. AIR 1915 Oudh 181 and Ram Ghulam v Shyam Sarup, AIR 1934 All 1 which also support the view I have taken [n such a case there can really be no question of bringing the personal legal representatives of any of the plaintiffs on the record.
11. Having put aside the preliminary objection of Mr. Bhandari, I shall proceed to examine the question whether the disputed property was also a part of the property of the public trust. The main line of defence in this connection was that only the well was known as Bhagat-wela well and not the 'bagichi' or garden as such, and that the 'chatri' was known as Maijiwali-chatri and was occupied bv Khashigiri until his death. As regards the 'dharamshala', the defence was that it alone was the subject-matter of the trust created by Rama-nand Das, while the disputed property belonged to and was built by defendant Ranvjilal. Thus it was the sheet-anchor of the defence that the well, the 'chatri'. the 'dharamshala' and the disputed property were separate and independent units and the plea that they were included in the premises known as Bhagat-wali-bagichi was quite incorrect. In fact the defendants have denied the existence of Bhagat-wali-bagichi and have pleaded that only the well was known as Bhagat- -wala-well.
12. 1 have gone through the entire documentary and parol evidence on the record. I find that there is so much documentary evidence of a reliable nature that it is not really necessary to base afinding on the parol evidence of the parties for it does not appear to be equally reliable. The documents on which I shall rely have all been proved by witnesses, without any objection about their admissibility or genuineness, and they have been marked as exhibits in the cases.
13. It is not denied that Ramanand Das acted as the de facto trustee of the property and was in exclusive charge of the 'bagichi' during his lifetime. It has therefore to be examined how he treated the property and what was the extent of his charge.
(After discussing the documentary and oral evidence on record his Lordship continued) :
14-21. For the reasons mentioned above, it has been proved by overwhelming evidence that the disputed property was also a part of Bhagat-wali-bagichi. the whole of which was the subject-matter of a public trust. In fact, as has been stated, Mr. Bhandari has frankly conceded in this Court that the rest of the garden was trust property, and there is no reason why one small corner of it should have been excluded from that trust. In such a case, the burden of proving the contrary lay heavily on the defendants as would appear from the following observation of their Lordships of the Privy Council in T.P. Srinivas Chariar v. C. N. Evalappa Mudaliar, AIR 1922 PC 325.
'Their Lordships dissent entirely from the view that where the discoverable origins of property show it to be trust property the onus of establishing that it must have Illegitimately come into the trustee's own right rests upon the bene--ficiaries. On the contrary, the onus is, and is heavily, upon the trustee to show by the clearest and most impeachable evidence the legitimacy of his personal acquisition.'
This view that a heavy onus lies upon the trustee to prove the legitimacy of his personal acquisition, has been approved by their Lordships of the Supreme Court in Narayan Bhagwantrao Gosavi Balaji-wale v. Gopal Vinayak Gosavi, AIR 1960 SC 100. The defendants have, however, completely failed in discharging that burden. On the other hand, Ramjilal admitted in the trial court that he had no title deed in respect of the disputed property, and he did not have the courage of denying that Ramanand Das had applied for permission to construct a kitchen ('pator') at the very same place where the disputed property is now situated.
22. The dedication of a garden for public purposes has been known from Vedic times as a charitable act and where, within such a garden, are located the 'chatri' of an idol, a public well, a ''dharamshaia' for the use of 'sadhus' and its kitchen, and they have been used for a long period of time for common good and are shown to lie within a com-mon compound, it is quite natural and reasonable to conclude, until the contrary is proved, that the entire area is the campus of one integrated public trust. It may be that the origin of such a trust may not be known or may have become incapable of determination, but the nature of the property and its user, and the mode of its management, are the usual and satisfactory modes of determining whether it is the property of a public trust of which the grant has been lost to living memory or whether it is the property of a private individual. These criteria have been approved in AIR 1960 SC 100 and, as has been shown, they lead to no other interference than that the disputed property is also a part of the public trust. The finding of the District Judge in respect of issue No. 1 is not correct inasmuch as the entire suit property has been proved to be the property of a public trust even though it has not been proved that it was built by public subscription. The learned District Judge also erred in finding, in respect of issue No. 4, that the suit was maintainable only in rerpect of the 'dharamshaia' and not for the rest of the property. These find-ings are therefore set aside and it is held that the whole of the Bhagat-wali-bagichi and all the suit properties are the properties of a public trust, that defendant Ramjilal was a trustee of the whole of tha) property and not merely for the 'dharamshaia,' and that the suit was maintainable for all the suit properties.
23. The question then is whether the finding of the learned District Judge in respect of issue No. 5 that the plaintiffs had no interest in the suit property within the meaning of Section 92 of the Code of Civil Procedure, is correct. Mr. Bhandari has supported the finding on the ground that the plaintiffs failed to substantiate their plea that they had made subscription for the construction of a part of the trust property and were therefore interested in it. The learned counsel has argued that the sort of interest which the plaintiffs have pleaded and proved is not a substantial or a genuine interest in the property and that the finding of the District Judge is quite correct. He has tried to support his submission by reference to Vaidyanatha Ayyar v. Swaminatha Ayyar, AIR 1924 PC 221; Shadi Ram v Ram Kishan, AIR 1948 East Punj. 49; Swami Gaya-nand v. Jagdish Chandra Bagchi, AIR 1942 All 315, Kirpa Singh v. Ajaipal Singh AIR 1930 Lah 1 and Muhammad Khan Sahib v. Kadir Batcha Sahib, AIR 1920 Mad 466.
24. A perusal of the re-cord shows that the plaintiffs took the plea in paragraph 4 of the plaint that I he well was used by the public for bathing and that the public used to worship at the temple if Mahadevji which was located in the 'chain'. They further pleaded in paragraph 5 that they contributed to the construction of a part of the property and that the public as a whole utilised the garden. The plaintiffs are residents of the town, and they pleaded that they were interested in the proper management, of the trust property. It is true that they did not succeed in proving, by satisfac-tory evidence, that they contributed for the construction of a part of the trust property, but they have no doubt succeeded in proving that they are the residents of the town and plaintiff Ramprasad has stated that he lives only at a distance of about 200 yards from the suit property.' It is the plea of the plain-tiffs that the garden was used by the public as a whole and that the well was used for bathing by everyone. It has also been alleged that the defendants were not allowing the public to use the gardener take bath at the well and this is one important grievance of the plaintiffs. Then there is the statement of plaintiff Ramprasad P. W 9 that he instituted proceedings under Section 107. Cr. P. C against defendant Ramjilal in connection with the ''bagichi' in question because Ramjilal was not allowing the travellers and the 'sadhus' to stay there. Even defendant Ramiilal D. W. 5 has admitted that the plaintiffs had filed a petition, byway of an objection, to pre-serve the suit property when one Chauth-mal made an application in the tehsil for permission to build a shop in front of the 'bagichi' in 1951.
Besides, plaintiff Mangilal P W 11 has stated that he conducted certain proceedings before the Municipal Board on behalf of the public in connection with the trust oroperty and he produced the judgment of the Board of Revenue (Ex. 15) dated February 11, 1938 (1939?) which related to the complaint against defendant Ramjilal by plaintiff Ramprasad and others and in which it was held that all the properties were meant for the 'dharam-shala' and that they should not be used for any purpose other than the stay of 'sadhus' and travellers etc All this shows that the plaintiffs were taking a long period of time. They have therefore a genuine interest in the preservation and proper management of the disputed trust property for they have shown vigilance and have devoted their time and energy for its preservation. There is no reason why it should not be held that they have an interest in the trust property of the naturecontemplated by Section 92 of tht Code of Civil Procedure.
Some decisions A.V.M. Ramaswami Chettiarv. V. M. Muthukaruppan Chettiar, AIR 1925 Mad 1011 and Shadeo Das v. Raja Ram, AIR 1932 All 708 have been cited at the bar in which it has been held that persons who have made subscriptions or offerings are persons interested in the trust within the meaning of Section 92, and there is no reason why those who, instead of merely giving some contribution or offering, have gone to the extent of devoting their time and energy for it? preservation, should not be treated as persons interested in the trust within the meaning of Section 92 of the Code of Civil Procedure. I am fortified in this view by a decision in Gopalakrishnier v Ganapathy Aiyar, AIR 1920 Mad 238. The cases cited by Mr Bhan-dari are not really relevant because they relate to different facts. It will be enough to say that they do not take a view different from that taken by me on the facts of this case, for the question is one of fact and has to be decided on a consideration of the particular circumstances of each case. The learned District Judge erred in taking a contrary view. His finding in respect of issue No. 5 is set aside, and the issue decided in favour of the plaintiffs.
25. The next question is whether defendant Ramjilal committed a breach of the terms of the trust and whe-ther he was not a fit person to be continued as a trustee because of the gift which he made in favour of his wife Smt. Durga Devi and because he did not allow passengers to stay in the trust property. These points were the subject matter of issues Nos. 6 and 7 and the learned District Judge decided them also against the plaintiffs. As Ramjilal has died, it is hardly necessary to give serious thought to the question of his misconduct as a trustee. But it has been strenuously argued by Mr. Bhandari that defendants Surai Narain and Surendralal are the surviving trustees and that they are not guilty of any misconduct and should be allowed to function as such. It has however been proved beyond doubt that Ramjilal committed as act of gross misconduct in respect of the trust when he gifted away a sizable portion of its property to his wife under gift deed, Ex 18 dated July 4. 1953 Both Sunderlal and Surai Narain have taken the plea that the gifted propertv belonged to Ramiilal and was not the property of the trust In other words, it has been proved that they falsely supported the gift of the trust propertv instead of taking a stand that the gift was unauthorised and illegal.
Thus both these defendants have failed to discharge the important duty ofdefending the trust, property from mis-use. This is sufficient to prove that both of them are unsuitable and should not be allowed to continue as the trustees of the property. It has also been proved that while Sunderlal has sold away his property in Gangapur and has been living at Nagpur for many years, defendant Suraj Narain is in service and was last posted at Khetri as a school teacher. He cannot also be expected to look after the management of the trust property. Both Sunderlal and Suraj Narain cannot therefore be allowed to continue as trustees any further and a direction of the Court is necessary for the proper administration ol the trust.
26. The appeal is allowed, the impugned judgment and decree arc set asideand Suraj Narain defendant No. 3 andSunderlal defendant No. 4 are removedas trustees. It is ordered that the entiresuit property shall vest in a trustee to beappointed by the District Judge and thedefendants are directed to deliver theproperty to the trustee so appointed. Giftdeed Ex. 18 is declared to be void andillegal and shall not affect the trust property. The appellant is allowed costs hereand below.