1. This is an appeal by the defendants against the judgment and decree of the learned Additional District Judge, Ganganagar dated 2-12-1969, decreeing the plaintiffs' suit for declaration and other ancillary reliefs which will be referred to hereinafter in detail. For reasons which will presently appear, it is necessary to set out the allegations of the plaint clearly and in considerable details. It is stated in the plaint that Baba Baggasingh of Tarantaran established a religious institution for the propagation of the tenets and preachings of the Radhaswami faith at Tarantaran. He accordingly initiated many disciples to this order and acquired movable and immovable properties for the development and progress of the order. He consequently established a Dera which is known as Sant Sat Guru Baba Bagga Singh Dera at Tarantaran hereinafter referred to as the Baba Bagga Singh in his lifetime nominated Sant Sat Guru Deva Singh as his principal disciple descendant to the Gaddi. On the death of Baba Bagga Singh, Devasingh succeeded to the Gaddi. He also acquired properties and made accretions to the Dera's properties. Baba Deva Singh died on 20-12-60. Three or four months prior to his death, he had become extremely weak and was not in a position to even walk. It is further stated in the plaint that some interested persons had created factions amongst the sewadars and won some of them over their side with a view to grab the properties of the said Dera. To achieve this end, it is stated that they managed to get executed by Sant Sat Guru Deva Singh, trust-deed Ex. 2 and deed of transfer Ex. 3 in respect of the properties of the Dera by exercising coercion, undue influence and fraud upon him on 15-12-60, and also got established an Association under Memorandum of Association Ex. 1. It is pertinent to mention here that under the trust-deed Ex. 2 dated 15-12-60, Baba Deva Singh appointed himself the sole trustee of the properties of the Dera and in the capacity of the sole trustee, transferred on the same day all the properties under Ex. 2 belonging to the Dera in favour of the Association hereinafter to be referred as defendant No, 1, for the management of the aforesaid properties. The plaintiffs allege that the trust-deed Ex. 2 and the transfer-deed Ex. 3 as well as the Memorandum of Association Ex. 1 and the Association made thereunder were illegal, void and contrary to the provisions of law. The plaintiffs impeached the validity of the trust deed inter alia on the following grounds. (1) That the Dera Baba Bagga Singh being a public religious institution and its properties being religious property in the nature of trust property and that Baba Deva Singh beingmerely a trustee of this property could not create any further trust in respect thereof. That in any event, the trust-deed was void as the same was not executed by free-will and was vitiated by coercion, fraud and undue influence. The transfer-deed Ex. 3 dated 15-12-60 was impeached mainly on the grounds (1) that the properties transferred thereunder were public religious trust properties and were therefore inalienable, and (2) that Baba Deva Singh had no authority to alienate the public religious trust properties. The plaint further goes on to state that the defendants had taken over the possession of the properties of the said Dera illegally and were even dealing with them in contravention of the object of the trust. It has been stated that one Pratap Singh, defendant No. 2, had illegally proclaimed himself to be the Sant Sat Guru of the said Dera. The plaintiffs, therefore, stated that the trust-deed and the transfer-deed being void could not confer any right on the defendants and their possession was merely that of a trespasser. On these allegations, the plaintiffs prayed for a declaration for declaring the transfer-deed Ex. 3, the trust-deed Ex. 2 and the Memorandum of Association Ex. 1 to be void. The plaintiffs also prayed for three more reliefs as a consequence of the said declaration: firstly, for the removal of defendant No. 2 from the post of Sant Sat Guru of the said Dera, secondly, for convening a meeting of the Sangh for appointment of a new Sant Sat Guru, and thirdly, for the appointment of a Receiver and taking accounts with regard to the properties of the said Dera.
2. Defendants Nos. 1 and 2 filed a joint written statement in which they admitted that the Radhaswami Dera Baba Bagga Singh is a religious institution and the properties belonging to it are religious properties of the public trust. They, however, pleaded that the properties are not in the nature of properties as contemplated under the ordinary trust law, and that Baba Deva Singh's position was not that of an ordinary trustee. According to them, the position of Sant Sat Guru is very much different from an ordinary trustee. They alleged that Sant Sat Guru is looked upon as an incarnation of God and has an unlimited and absolute power over the properties of the Dera. They traversed the rest of the allegations and denied that the trust-deed Ex. 2 and the transfer-deed Ex. 3 were executed by Sant Sat Guru Deva Singh under undue influence, coercion or fraud. They further contended that the suit as framed was governed by the provisions of Section 92, C. P. C. and was, therefore, not maintainable for want of sanction of the Advocate General. They also pleaded that the plaintiffs had no locus standi as they were not at all interested in the affairs of the Dera and that the suit was not triable by the Courtas the impugned documents were executed at Tarantaran and the Dera is also situated at Tarantaran and consequently the cause of action if any did not arise wholly Or partly at Ganganagar. It may be mentioned that the defendants participated in the proceedings till the plaintiffs' evidence was examined, but on 2-9-68, learned counsel for the defendants pleaded no instructions and therefore the suit was proceeded under Order 17, Rule 2, C. P. C.
3. The trial Judge after recording the evidence of the plaintiffs and hearing the arguments decreed the plaintiffs' suit as prayed.
4. Mr. Bhargava, learned counsel for the appellants has challenged the findings of the learned trial Judge recorded against the appellants and urged that the suit was not maintainable in view of non-compliance of the provisions of Sec. 92, C. P. C. He further submitted that the trial Court had no jurisdiction as the cause of action did not arise partly or wholly in the local limits of the Court at Ganganagar. Lastly it was urged that the plaintiffs had no interest in the affairs of the Dera, and therefore, had no locus standi to bring the suit.
5. Having heard the learned counsel for the parties, we are of opinion that this appeal must be accepted on the ground of non-maintainability of the suit for want of compliance with the provisions of Section 92, C. P. C. We, therefore, do not think it necessary to decide the other points argued by learned counsel for the parties.
6. In order to appreciate the contentions of Mr. Bhargava' as to the non-maintainability of the suit, it is necessary to state the reliefs claimed in the prayer clause of the plaint. They are as follows :--
(1) The plaintiffs pray that their suit be decreed against the defendants and decree be passed as prayed.
(2) It be declared that the trust-deed and the transfer deed dated 15-12-60 and the formation of the Association defendant No. 1 is contrary to law and is void.
As a consequence of the above declaration the following further reliefs be granted to the plaintiffs:
(i) Defendant No. 2 (Baba Pratap Singh) be removed from the office of Sant Sat Guru and the meeting of the 'Sangat' of the followers of the Dera Baba Bagga Singh be convened and new Sant Sat Guru of the Dera be appointed:
(ii) the defendants be dispossessed from all the movable and immovable properties of the Dera and a Receiver be appointed to take over the properties and after tbe appointment of the Sant Sat Guru, the same should be handed over to him.
(iii) the accounts should be taken of the income and expenses in respect of theproperties of the Dera Baba Bagga Singh ana whatever is found due after accounting, the same should be given to the newly appointed Sant Sat Guru;
(iv) Costs of the suit be awardedto the plaintiffs.
7. Mr. Bhargava, the learned counsel for the appellants has urged that the suit relates to trust properties for public purposes of religious nature and the reliefs claimed therein are some of those specified in Section 92, C. P. C. He further submitted that there is an allegation of breach of trust on the part of the Sant Sat Guru Deva Singh and the defendants. It may be stated that in order to attract the applicability of Section 92, C. P. C., four conditions are necessary; (1) the trust must be for a public purpose or a charitable or religious nature; (2) the plaint must allege that there is a breach of such a trust or that the direction of the Court is necessary for the administration of the trust; (3) the suit must be not only in the interest of the plaintiff individually but in the interest of the public or in the interest of the trust itself; and (4) the relief claimed in the suit must be one of the reliefs mentioned in the section, as held in Ramdas Bhagat v. Krishna Prasad, AIR 1940 Pat 425, and Sugra Bibi v. Haji Kummu, AIR 1969 SC 884. We have, therefore, to see whether the four requirements of Section 92 are satisfied in the present case so as to attract the bar laid down in Section 92, C. P. C.
8. The first requirement of Section 92, as stated above, is whether the suit relates to property of a trust for public purposes of religious or charitable nature. In this regard, Mr. Bhargava invited our attention to para No. 4 of the plaint and urged that tbe plaintiffs have not disputed that the properties of Dera Baba Bagga Singh were in the nature of public trust properties of religious nature. He, therefore, urged that according to the plaintiffs' own showing, the properties are admittedly of a public trust of religious nature. On the other hand, learned counsel for tbe plaintiffs when confronted with this position contended that what they had admitted is that the Dera Baba Bagga Singh was from the very inception a public trust of religious nature. But this fact has been denied by the defendants. He pointed out that though in para No. 4 of the written statement, the defendants have admitted the public religious nature of the Dera and itsproperties in the nature of trust, but they ave qualified their statement by stating that it was tbe absolute property of Sant Sat Guru who had the absolute right to alienate the property and was not like the ordinary trust property. Learned counsel for the respondents contended that as the defendants have denied the trust as set up in the plaint, the objection with regard to Section 92, C. P. C., is not at all maintainable.
9. We may point out at once that in order to determine the applicability of Section 92, C. P. C., we have to look to the allegations in the plaint and even if the defendants denied the existence of the public trust from the very inception of the Dera, that cannot take out the case from the ambit of Section 92 if otherwise the conditions of this section are fulfilled. The reason is obvious that the defendants by mere denial cannot be allowed to evade and defy the statutory provisions of Section 92 which are mandatory in character.
10. In the present case the defendants have admitted that the properties in dispute were the public trust properties of religious nature. The plaintiffs have alleged that Baba Bagga Singh had created a public religious endowment of the properties in question. There is of course controversy as to when and how the properties became of the public religious endowment; but this much is also admitted by the defendants that at the time of the institution of the suit they were of such nature. It is, therefore, clear that at the time when the suit was brought, there was no dispute about the properties being of the public trust of religious nature.
11. Mr. Hastimal, the learned counsel for the respondents, however, contended that the public religious trust set up in the plaint is different from the one admitted by the defendants. He submitted that whereas the plaintiffs have set up the case that the Dera Baba Bagga Singh was a public religious institution from its very inception and its properties were in the nature of trust properties, the defendants have not admitted this trust but have set up a different trust created by Deva Singh, and in view of the stand taken by the defendants, the suit cannot be said to relate to a public trust of religious nature as set up by the plaintiffs. It is extremely difficult for us to accept this contention of the learned counsel. In our opinion, the crucial time for determining whether the properties are public trust properties of religious nature is the date of the institution of the suit. We cannot conceive that simply because the defendants did not admit the fact of Baba Dera Bagga Singh being a public religious institution from its inception, that will take out the case from the ambit of Section 92, C. P. C. It is not in dispute that at the time of the institution of the suit, the properties to which the suit relates, were properties of public religious trust. We, however, do not think it necessary to go into this controversy as to whether the properties of the Dera were public religious trust properties from its inception inasmuch as we are in a position to determine the points in controversy on the admission of the parties in respect of the nature of the properties as it existed at the time of the institution of the suit. Admittedly at thetime of the institution of the suit, the properties were public religious trust properties. In our opinion, therefore, the first condition of Section 92 is fully satisfied.
12. Coming to the second condition of Section 92 with regard to the breach of trust, we are of opinion that it also stands fulfilled in the present case. Learned counsel for the respondents in this connection urged that a suit under Section 92, C. P. C., can be brought if a breach of trust is alleged or a direction of the Court is necessary. He contends that in the present case, no breach of trust is alleged, much less proved, and no occasion arose for any direction as contemplated under Section 92, C. P. C. We may here point out that the principle of law is well settled that it is allegations contained in the plaint that determine the jurisdiction of the Court under Section 92. In Ram-das Bhagat's case, AIR 1940 Pat 425 (supra), the Patna High Court has held that if a breach of trust is alleged in the' plaint, it is sufficient to confer jurisdiction under Section 92, C. P. C. It is in the light of the above principle that we have to see whether the condition as to allegation of breach of trust is satisfied in the present case.
13. The plaint alleges more than once the breach of trust on the part of the defendants. In para No. 3 of the plaint, the plaintiffs have clearly alleged that Baba Deva Singh has illegally created a trust and unlawfully transferred the properties of the trust by constituting himself as the sole trustee and has established an association and the defendant No. 2 has illegally proclaimed himself as the Sant Sat Guru of the Dera. In para 6 of the plaint it has been alleged that the defendants have illegally taken possession of the Dera's properties and have been wasting it in contravention of the object of the trust and it was with a view to protect the interest of the followers of the Radhaswami faith that the present suit is being brought. There is also clear averment in para No. 10 (kha) and 'gha' that the defendant No. 1 has been brought into being for wiping out the very existence of the aforesaid religious endowment in direct breach of the object of the trust. The plaintiffs have on these very reasons asked for the appointment of a new Sant Sat Guru and for the dispossession of the defendants and for the administration of the properties according to the objects of the trust and even have asked for the appointment of a receiver. All these allegations, in OUT opinion, establish the breach of trust on the part of the defendants, who according to the plaintiffs themselves occupy the position of a de facto trustee or a trustee de son tort It may be that the plaintiffs have labelled the defendants as trespassers but looking to the plaint allegations, we are satisfied that the allegations substantially amountto intermeddling with the properties by the defendants without asserting adverse title in themselves. In this view of the matter, the second condition of Section 92, in our opinion, is fully satisfied.
14. This brings us to the consideration of the question as to whether the third condition or Section 92 is satisfied in the present case. In our judgment, it is also fully satisfied. There is no case of rival claimants asserting their own right. The defendants have no personal claim of their own. So far as the plaintiffs are concerned, it is quite apparent from the plaint that they do not purport to sue on their own but sue in a representative capacity in the interest of and to safeguard the rights of the followers of the Radhaswami faith. A look to the frame of the suit will show that the suit has been brought in a representative capacity for the benefit of the followers of the Radhaswami faith.
15. We are now to see whether the fourth condition of Section 92, C. P. C., namely whether any of the reliefs claimed are those specified in Section 92, C. P. C.? In this connection we have reproduced the verbatim translation of the various reliefs claimed in the plaint. From the perusal of the reliefs, it will appear that the suit is substantially for dispossession of the defendants and for the appointment of a new trustee. In Clause (1) or sub-para 'kha' of para 16, the plaintiffs have asked for the appointment or a new Sat Guru as the successor to the Dera. In Clause (2) of the said sub-para, the plaintiffs have prayed for the ejectment of the defendants and for the appointment of a receiver with a direction to hand over the properties to the newly appointed Sant Sat Guru. In Clause (3) of the said sub-para, the plaintiffs have asked for the accounting of the income of the said Dera and for a direction to hand over the money found due after accounting to the newly appointed Sat Guru. The counsel for the respondents contended that none of the reliefs is covered by Section 92, C. P. C. He submitted that the suit is substantially for declaration and the remaining reliefs are incidental and consequential to the prayer for declaration and as such they do not fall under the mischief of Section 92. The provisions of Section 92, C. P. C., indicate inter alia that a suit for appointment of new trustees is competent only after compliance with the provisions of Section 92, C. P. C. The plaintiff-respondents in the present case allege that the defendants were strangers and trespassers in relation to the trust. The plaintiffs further allege the act of misfeasance on the part of the defendants. Section 92, G. P. C., prohibits a plaintiff from obtaining relief of appointment of new trustees without the compliance with the provision of the said section of the Code. The question, therefore, is whether any of the reliefs mentioned inthe plaint are covered by any of the reliefs specified in Section 92.
16. Having perused the reliefs contained in the prayer carefully, we are of the opinion that all the sub-clauses contained in sub-para 'kha' of para 16 are covered by the reliefs contemplated by Section 92, C. P. C. Under Sub-clause (2) the plaintiffs have asked for ejectment of the defendants and for appointment of a receiver. Under Sub-clause (3) the plaintiffs have asked for the accounting of the income of the Dera and for a direction to hand over the money found due after accounting to the duly appointed Sat Guru. Under Sub-clause (1) there is a definite prayer for removal of the defendants and for the appointment of a new trustee. Sub-clauses (2) and (3) are definitely covered by the reliefs specified in Section 92, C. P. C. With regard to the prayer contained in Sub-clause (1), it has been contended that the plaintiffs have not asked for the removal or the trustees as the defendants appellants are strangers and trespassers and therefore the relief could not come under the mischief of Section 92. We have, therefore, to see whether the aforesaid Sub-clause (1) is also covered by Section 92. Learned counsel in this regard contended that the defendants could not be considered as trustees within the meaning of Section 92. Learned counsel relied upon a number of decisions which have laid down the proposition that Section 92 does not cover a suit against a trespasser. In our opinion, the position of a trespasser is different from that of a trustee de son tort; the former claims adversely to the trust and so cannot be deemed to be a trustee within the meaning of the section, while the latter does not claim adversely though there may be defect in his title to act as a trustee. In Muhammad Nasim v. Muhammad Ahmad, 18 Oudh Cas 38 = (AIR 1940 Oudh 408), a Bench of the Court of the Judicial Commissioner Oudh discussed the matter and held that Section 92, C. P. C., covered a suit for removal of a person who though not a trustee de jure had taken upon himself the management of trust property and thus became a trustee de son tort. The same view was also taken in Mulchand Bassarmal v. Devigir Motigir, AIR ]936 Sind 179; Radha Krishna v. Lachmi Narain, AIR 1948 Oudh 203 and S. K. Mitra v. H. C. Dey, AIR 1960 Cal 558.
17. The learned counsel for the respondents invited our attention to a case reported as Sundaralingam Chettiar v. S. Nagalingam Chettiar, AIR 1958 Mad 307, in which it has been held that the removal for which Section 92 provides is in respect of a de jure trustee and not of a trustee de son tort. We have carefully examined this authority. We do not find any substantial reason contained in this authority for theview propounded in it. The term 'trustee' in Section 92 in our opinion has been used in a wider sense to include both the express as well as implied trust. The trustee de son tort who is acting as a de facto trustee is in our opinion covered by Section 92, C. P. C., as we think there is no warrant for putting a narrow construction on the term 'trustee' occurring in Section 92, C. P. C. A person who without title chooses to take upon himself the character of trustee becomes a trustee de son tort and is liable to account for what he has done or what he has received while so acting in the same way as if he were a de jure trustee. Such a person may be described as a de facto trustee or a trustee de son tort and is distinguishable from a trespasser. In view of the preponderance of judicial opinion referred to above to the contrary, we are unable to agree with the proposition laid down in this case. It may be pointed out that the respondents in the present case have not claimed any title of their own but they have claimed themselves to be trustees and are managing the property in that capacity.
18. Learned counsel for the plaintiffs then urged that the suit being substantially for declaring Exs. 1, 2 and 3 void and the other reliefs relating to removal of Sant Sat Guru and appointing new one in his place and for administration of property being simply of ancillary nature, it is not barred under Section 92, C. P. C. In support of this contention, he cited Nil-kanth v. Ram Krishna, AIR 1923 Bom 67; Pragdasji v. Isharlalbhai, AIR 1952 SC 143 and Bishwanath v. Radha Ballabhji, AIR 1967 SC 1044. After perusing these authorities, we are of opinion that they are really of no assistance in. the present case.
19. Nilkanth's case, AIR 1923 Bom 67 (supra), related to a declaration that the defendants were not properly appointed trustees of the temple and for injunction appropriate to that declaration. There was no allegation of any breach of trust in the plaint nor was there any direction sought for the administration of trust in question. As already pointed out, to attract the provisions of Section 92, C. P. C., four conditions referred to above should be fulfilled. All the condtions were not fulfilled in that case, and, therefore, it is clearly distinguishable.
20. In AIR 1952 SC 143 (supra) a suit was brought under Section 92, C. P. C., for declaration and various other reliefs specified in Section 92. C. P. C. There. was, however, no allegation and proof in respect of breach of trust. In the absence of allegation of breach of trust, theirLordships held that there being no cause of action, even relief of declaration could not be granted. It was observed by their Lordships that the declaration as to trustmight be made as ancillary to the main relief claimed under the section. Their Lordships, however, pointed out that when the case of plaintiff fails for want of causa of action, there is no warrant for declaratory relief under Section 92 which only contemplates reliefs specified therein. The case is, therefore, clearly distinguishable,
21. The last case in this connection cited by learned counsel is AIR 1967 SC 1044 (supra). This case is also of no assistance. It related to a suit for declaration by the worshippers of an Idol against the alienees who asserted their adverse title to the properties. In the background of these facts, it was held that the suit for declaration of title and possession of property from a person under a void alienation claiming his own title thereto was maintainable not being for any of the reliefs specified in Section 92, C. P. C.
22. In the present case, the facts are quite different from those covered in the above-referred to cases. Substantially the plaintiffs' suit is for the reliefs specified in Section 92. There is of course an additional prayer for declaring Exs. 1, 2 and 3 as void; but, in our opinion, mere addition of a prayer for declaration cannot take the suit out of the ambit of Section 92, C. P. C., wben substantially all other conditions of the section are otherwise fulfilled.
23. In view of the above discus-sion, we hold that the suit against the defendants appellants is covered by Section 92, C. P. C. as all the four conditions laid down in that section are fulfilled in the case.
24. Counsel for the respondents in the last contended that in any event, the prayer of declaring the three documents namely Exs. 1, 2 and 3 as void could at least be granted. This contention is also unacceptable to us inasmuch as the suit for bare declaration of this right without further relief for possession and other reliefs in the facts and circumstances is not sustainable in law. The reason is that a bare declaration of right will be within the mischief of Section 42 of the Specific Relief Act, 1877, and Section 34 of the Specific Relief Act, 1963. We are fully fortified in our view by the Supreme Court authority reported in M. K. Rappai v. John, (1969) 2 SCC 590.
25. We cannot help observing that the learned trial Judge has not at all ap-plied his mind in a judicial manner and as decided this point in a very perfunctory way. We may observe that in the absence of the representation of the defendants, it was all the more obligatory for the learned Judge to have judicially examined the legal position and arrived at a finding after due care and caution. In our view, the judgment of the trial Judgeis wholly erroneous so far as the point with regard to Section 92, C. P. C., is concerned.
26. We, therefore, accept the appeal, set aside the judgment and decree of the learned Additional District Judge, Ganganagar, on the reasons mentioned above ana dismiss the suit. However, looking to the facts and circumstances of the case, we leave the parties to bear their own costs throughout