1. The Collector of Trichinopoly is the plaintiff. The suit is instituted under Sections 92 and 93 of the Civil Procedure Code.
2. The first defendant (now deceased) was the alleged trustee and manager of the charities referred to in the plaint. The second defendant was alleged to be a transferee from the first defendant of a portion of the lands appertaining to the charitable trust.
3. The prayers against the 1st defendants were for removal of the 1st defendant from the trusteeship and for accounts. There was a prayer (b) 'to declare the sale to the second defendant of the lands belonging to the charity to be invalid.' This is the only relief claimed against the 2nd defendant. There were other prayers for the appointment of a new trustee and for vesting the trust property in the trustee so appointed. The plaintiff obtained all the reliefs asked against both the defendants in the lower court.
4. There were appeals against this decree by each of the defendants. But the first defendant is now dead, and her representatives not having been brought on the record, her appeal has abated and has been dismissed by us. The present appeal is by the second defendant.
5. It was contended before us on behalf of the plaintiff that the second defendant's appeal must also abate, inasmuch as the first defendant who was originally a respondent to this appeal is now dead and her legal representatives have not been brought on the record as required by Order 22.
6. In my opinion the appeal does not abate.
7. The mere fact that one of the respondents is dead and that his representative is not brought on the record will not make the appeal abate if the right survives to the appellant. In Gopal v. Ramachandra I.L.R. (1902) B. 597. It was succinctly stated that when the sections of the C.P.C. which are now replaced by Order 22 have to be applied to appeals the words ' the right to sue' must be construed as meaning 'the right to prosecute by law, to obtain relief by means of legal procedure.' This is not expressly stated in Order 22 Rule 11 which may be styled the interpretation clause of the Order. But several rules in the order become meaningless in their application to appeals unless these words are added; and the addition of these words would follow from giving to the expression ' a right to sue' a meaning cognate to that which the rule expressly gives to the word '' suit ' Gopal v. Ramchandra I.L.R. (1902) B. 597 was followed in Paramen Chetty v. Sundaraja Naick I.L.R. (1902) M. 499.
8. The relief which the second defendant claims in appeal is first, that, as he was not a necessary party to the suit, his name should be struck off from the record, and secondly that if there was any cause of action against him it was barred by limitation ; that in either case the suit should be dismissed as against him. If the second defendant is entitled to claim this relief, he is entitled to do so in his sole right. The only person against whom this relief is claimed is the plaintiff. On the death of the 1st defendant, the second defendant's right to claim this was not affected. A test for deciding whether the right survives was suggested by the Government Pleader: viz., whether the appellant can succeed, and the decree can be reversed, without bringing the legal representative of the deceased party on the record. This test is satisfied in the present appeal. The question on which adjudication is sought by the second defendant as appellant before us will not affect the deceased party. See Srinivasa Chari v. Gnanaprakasa Mudaliar I.L.R. (1906) M. 67. An ingenious argument was put forward on this point, that the lower court's decree entitled the 2nd defendant to sue the first defendant for damages for breach of covenant for title-if there was any such covenant; that the first defendant was consequently interested in the appeal of the 2nd defendant. The argument does not seem to require any detailed refutation. I hold therefore, that the appeal does not abate.
9. On the merits, several questions of law were argued before us. It is necessary to deal only with the question of limitation. I am of opinion that the claim, if any, against the second defendant was barred.
10. I express no opinion on the point whether the plaintiff had any cause of action against the second defendant; but will assume that in the circumstances of this case, though the suit was brought by the Collector under Sections 92 and 93 of the Civil Procedure Code such a declaration as is here sought by prayer (6) can be asked and obtained against a person who claims to be a transferee from the trustee.
11. It was suggested in the first instance that the Collector's right to obtain this relief (assuming it exists) is not barred as Section 10 of the Limitation Act prevents the right to follow the trust property in the second defendant's hands, from being barred by any length of time. The second defendant has been found to be an assign for valuable consideration and that finding has not been attacked before us. But it was argued that it has not been found that the second defendant is a transferee in good faith and that the mere fact of his being a transferee for consideration will not make the plea of limitation available to him, unless he is also a transferee in good faith. This contention cannot be upheld. Trust property in the hands of a transferee in good faith for consideration without notice of the trust cannot be followed by the beneficiary at all. See Trusts Act Section 64. The right to follow arises only where the transferee has not acted in good faith. (1) If such a transferee has paid no consideration he is not an assign for valuable consideration within the terms of the Limitation Act Section 10, and in his case a suit for the purpose of following trust property is not barred by any length of time. But (2) where the transferee is an assign for valuable consideration, (a) if he has acted in good faith , without having notice of the trust he acquires immediate title to the property under Section 64. of the Trust Act; or (b) if he has not acted in good faith, but has paid valuable consideration, he acquires good title after the lapse of the period necessary for extinguishing (under Section 28 of the Limitation Act) the right of the beneficiary to follow the trust property in his hands. This is in accordance with principle. Where there is valuable consideration for the transfer the original trust property is replaced by the consideration. There is no such consideration, and no question is raised here as to the adequacy of the consideration.
12. If limitation can be pleaded then the article applicable to the suit is Article 120. This was conceded. It was argued, however, by the learned Government Pleader that time did not begin to run from the date of the execution of the sale of the 26th January 1899 which is alleged to have been made in breach of trust and a declaration of the invalidity of which is sought in prayer (6) of the plaint but that it began to run only from the time when the Collector was informed of the facts entitling him to take action under Section 92 of the Civil Procedure Code. It was strenuously pressed upon us that a public officer has no duty cast upon him to go round and examine public trusts and that suits which he is entitled to institute must not be allowed to be barred though he may have no knowledge of his right to sue. The article must, however, be construed as it is, and I find myself unable to see how the meaning suggested by the learned Government Pleader can be read into the words 'when the right to sue accrues.' The article must be construed as it is notwithstanding that Article 134 prescribes a period of 12 years from the date of the purchase from a trustee when possession is sought for. If the Collector can sue under Section 92 of the Civil Procedure Code for a declaration against an alleged transferee in breach of trust, (on which point I express no opinion), then the suit must it seems to me be brought within 6 years of the sale. Time began to run therefore on 26th January 1899, and the suit was brought more than six years thereafter. It was in my opinion barred by limitation.
13.The appeal will be allowed and the suit dismissed against the second defendant. The costs of both parties to the appeal in both courts will be payable out of the Trust funds, but the appellant will recover his whole costs first and the 1st respondent will recover his costs only out of the balance. We are informed that some costs incurred in the lower court have been recovered by the Collector from the Appellant. These will have to be refunded to the appellant, and under Section 82 of the Civil Procedure Code we specify 4 months from this date for this being done.
14. I agree that the appellant can obtain the relief that he seeks in this appeal without making the legal representatives of the 2nd respondent parties.
15. In Durga Charan Sircar v. Jotindm Mohan Tagore I.L.R. (1899) C. 493 the test employed for ascertaining whether a particular defendant was a necessary party to the suit was to see (1) whether there was a right to some relief against him in respect of the matter involved in the suit; (2) whether his presence was necessary to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. The questions involved in an appeal do not necessarily include all the questions involved in the suit to which it is related. If we read 'appeal' wherever the word 'suit' occurs in the above passage and consider what are the reliefs asked for by the appellant in the present appeal it will appear that he can obtain all that he wants without the presence of the 1st defendant or her legal representatives.
16. There has been considerable divergence of opinion in the reported decisions of Courts of India as to the scope of Section 539 (corresponding to Section 92 of the code of 1908) before the present code became law. Now the question as to the powers of a court proceeding under Section 539 to remove trustees (held to be within the competence of the court by Sabbayya v. Krishna I.L.R.27(1890) M. 186. Husein Begam v. The Collector of Moradabad I.L.R. (1897) A. 46. Girdhari Lai v. Ram Lal I.L.R. (1899) A. 200. Sajedur Raja Chowdhari v. Gour Mohum Das Baishnay I.L.R. (1897) C. 418 and held to be without the competence of the Court by Nara simha v. Ayyan I.L.R. (1888) M.157. Rangaswami Naickan v. Varadappa Naickan I.L.R.(1891) M. 462 Budree Das Meekin v. Choone Lal Johurry I.L.R. (1906) C. 789. Budh Singh Dadhuria v. Niradharan Roy (1905) 2 Cal. L.J. 431 has been settled by the legislature introducing Clause (a) in Section 92 (1). It is still a debateable question whether alienees of or trespassers on trust property can be joined as parties to a suit under this section. It was held in Ghazaffar Husain Khan v. Yawar Husain I.L.R. (1905) A. 112 that alienees could be impleaded for the purpose of determining what properties are affected by the trust and in Sajedur Raja Chowdhari v. Gour Mohum Das Baishnay I.L.R. (1892) M. 24 that they could be made parties for the purpose of recovering from them properties improperly alienated; but in Augustine v. Medlycott I.L.R. (1882) M. 31 Strinivasa Ayyangar v. Strinivasa Swami I.L.R. (1899) B. 170. Kazi Hussain v. Sagun Balakrishna (1880) 23 M.L.J. 347. Arunachella Chetti v. Muthu Chettiar I.L.R. (1906) C. 789, Budree Das Mukim v. Chooni Lal Johurry (1905) Cri.L.J. 431 and Budh Singh Dhuduria v. Niradbaran Roy I.L.R. (1909) M. 31 it was decided that the section was not applicable to suits against strangers to the trust.
17. Now assuming without accepting that the Government Pleader is correct in his contention that the object of the section as shown by the addition of Clause 2 is to protect trusts against multifarious suits, that the words of the section are very wide, that the reliefs (a) to (g) are illustrative and do not limit the grant under (h) of such further or other relief as the nature of the case may require, the plaintiff's suit must still fail as against the 2nd defendant unless he can show that it is in time.
18. The relief asked against the 2nd defendant is a declaration that the sale of the trust properties to him is invalid, This suit can hardly be treated as a suit for recovery of possession of trust properties for which Article 134 would be appropriate.
19. It was held in Ottappurakhal Thayath Soopi v. Cherichal Pallikhal Uppathumma I.L.R. (1906) C. 789 that the right to sue for a declaration that an alienation of property is invalid falls under Article 120 of the Limitation Act and accrues at the completion of the document, not when the plaintiff obtains knowledge of the alienation. The second defendant purchased under Exhibit B on 26th January 1899 and the plaint is dated 7th October 1909. Article 120 allows six years from the date of the right to sue accruing. The Sub-Judge finds that the Collector became aware of the alienation when he received the report of the Revenue Inspector Exhibit H dated 19th February 1905, but it appears that he was aware of some trust properties having been misappropriated and alienated when he passed the proceedings Exhibit 1 dated 9th June 1899. I therefore consider that the relief sought against the appellant is in any case time barred, and I agree in dismissing the suit against him with costs to be paid as directed in my learned brother's judgment.