Abdur Rahman, Officiating C.J.
1. The question which I first propose to consider in this appeal is whether Section 92 of the Civil Procedure Code is a bar to the maintenanee of the present suit. The answer to that depends upon what is the nature of the action brought. The suit is instituted by the plaintiffs who claim to be entitled to the office of the Trustee of certain public charitable trust and they want it to be declared that they are the present trustees of the endowment and as such, entitled to conduct the charities, that the alienation made by the 1st defendant who is a widow of the last male holder of the office in favour of defendants 2 and 3 is void and does not affect the rights of the plaintiffs. Then in paragraph (c) their prayer is that if the Court finds that they are entitled to the office in their own right, it may be declared that they are the nearest reversioners of Subbaraya Chetty, the last male holder of the office and that by reason of the alienation by the 1st defendant in favour of defendants 2 and 3 they have become entitled to the office and to the present enjoyment of it. In paragraph (d) they ask that 'if necessary the 1st defendant may be removed from her office as trustee of the endowment.' Then they ask for possession of the properties and of the account books, etc.
2. The suit arose in consequence of the alienation made by the widow of her right to the office. The trust being of a public nature, such alienation is undoubtedly invalid in law; and there can, also, be no doubt that it amounts to a breach of trust on the part of the trustee. We have therefore these two facts, that there has been a breach of trust on the part of the trustee and that the plaintiffs who chaim to be entitled to the office ask that the 1st defendant the widow might be removed from the office of trustee and they themselves might be put in possession of the trust properties.
3. That being the nature of the suit and substantive reliefs claimed, it is difficult to see how the application of Section 92 of Civil Procedure Code, can be evaded. Sub-section 2 to that section says 'save as provided by the Religious Endowments Act, 1863, no suit claiming any of the reliefs specified in Sub-section (1)' among which reliefs are the removal of any trustee, appointing a new trustee and the vesting of any property in a trustee' shall be instituted in respect of any trust as is therein referred to except in conformity with the provisions of that sub-section' These reliefs can be obtained in a suit instituted under the section in the case of any illegal breach of trust or where the direction of the court is deemed necessary for the administration of any such trust. Here there has been a breach of trust and the principal prayer in the suit is for the removal of the present trustee and for vesting the property in the plaintiffs in the capacity of trus-tees. The learned Chief Justice has held that Section 92 does not apply because what the plaintiffs seek to establish is their own private right to the trusteeship. No doubt where a person claims to be a trustee and his case is that the person in possession is not the rightful trustee, he is entitled to institute a suit to establish his right independently of Section 92 and such a suit would not be covered by the language of Sub-section 2. But in this suit the 1st defendant is the rightful trustee and unless she is put out of the way on the ground that she has, as alleged, committed what amount to breach of trust, the plaintiffs cannot succeed. It is argued by the learned Vakil who appeared for the respondents, the plaintiffs in the suit, that although the plaintiffs sought to remove the 1st defendant on the allegation that the 1st defendant had alienated the trustee's office and the properties, it is still a suit mainly for the assertion of a private right and there-fore does not come within the scope of the section. The mere fact that the plaintiffs claim a right to the office cannot be said to bar the application of Section 92. As put in one of the cases cited at the bar, once there has been a breach of trust the right of the public to see that the trust is properly administered arises and the policy of the legislature, as is to be gathered from the wording of Section 92 is that in such a case the suit has to be instituted under certain conditions. That is to say, sanction has to be obtained either of the Advocate-General or the principal Civil Courts of Original jurisdiction. It was strongly urged before us by the learned Vakil for the respondents that his clients were bound to institute this suit as it has been decided in Pydigantham Jagannada Row v. Rama Doss Patnaick I.L.R. (1904) M. 197 that where a widow holding an office like this makes an alienation of the office in favour of third persons and those third persons enter into possession, the right of a reversioner will be barred if he does not establish his right within 12 years from the date of the possession being taken by the alienee. That case has been followed in Lilabati Misrain v. Bishun Chobey (1907) 6 C.L.J. 621 and I am prepared to assume for the sake of argument, without throwing any doubt on the correctness of that decision that it lays down the law properly. But it seems to me that this does not help the respondents. Any hardship there might be if the reversioner is not allowed to bring an action without conforming to the requirements of Section 92 cannot be said to outweigh the fact that in the opinion of the legislature whenever there had been a breach of trust and it is sought to remove the trustee who is holding the office, it is in the interests of the public that no suit should be instituted unless it is in conformity with the requirements of Section 92 Civil Procedure Code or the Religious Endowments Act of 1863, The reversioner, however, is not without his remedy in such cases. He can institute a suit under the provisions of the section and if as a matter of fact he has a right to the trusteeship, the court framing the scheme will, unless he is found to be an unfit person to hold the office, appoint him trustee. It is urged upon us, on behalf of the respondents, that we might at least give them a declaration that they are entitled as reversioners, to the office of trustee, otherwise their claim would be absolutely barred. But what the reversioners sought to establish in this suit was their present right to hold the office either in place of the 1st defendant or jointly with her. That is the substantive nature of the suit and we do not think that in the circumstances we are called upon to give the plaintiffs a mere declaration supposing they are able to establish their right--that they are, as reversioners, entitled to the office on the death of the widow.
4. We allow the appeal. The suit will be, dismissed. Having regard, however, to the facts of the case, each party will bear his own costs in this as well as in the Court of First instance.
5. App. No. 42 of 1914 will also be allowed.
Seshagiri Aiyar, J.
6. I entirely agree with the judgment of the learned Officiating Chief Justice, but having regard to the fact that we are differing from the learned Chief Justice who tried the suit I wish to add a few observations. In my opinion the suit is in substance and form one covered by Section 92 of the Civil Procedure Code.
7. In the plaint a breach of trust by a trustee is complained of and his removal is prayed for. It was strenuously contended by Mr. Venkatasubba Row that there cannot be any question of breach of trust because the public have not suffered by the act impeached. But where the office of trustee which was intended to be managed by persons belonging to the founder's family is alienated to a person who does not belong to that family, the alienation is opposed to public policy and constitutes a breach of trust against the public. This is the principle that was enunciated by the Judicial Committee in Bishan Chand Basawert v. Syed Nadia Hossain , where Sir Barnes Peacock says ' If there had been any objection that he (i.e., the plaintiff) was illegally substituted as trustee, an application might have been made by any person interested in the performance of the trusts to have him removed and a new trustee appointed by the Court under the Code of 1877.' The reference by the Judicial Committee is to Section 539 of the Act of 1877. Therefore the first requirement is satisfied, viz., that there has been a breach of trust. The second requirement is that there should be a prayer for the removal of the trustee. In this case the suit was brought within 12 years of the alienation. Consequently the widow had a subsisting right to the trusteeship at the time of the suit, even accepting to the fullest extent the decision in Pydigantha Jagannada Row v. Rama Doss Patnaick I.L.R. (1904) m. 197. She was the de jure trustee and although she parted with her rights in respect of some of the properties and delegated her duties she was the person legally entitled to the office. Therefore until she is removed from the office plaintiffs can have no right to get in. There was no vacancy at the dat3 of the suit. Plaintiffs claim, in terms, that she should be removed and that they should be appointed trustees at once. Therefore it was a suit for the removal of an existing trustee and consequently the requirements of Section 92 were fully satisfied. Under Clause (2) of that section the suit must loss brought with the sanction of the Advocate-General and not otherwise.
8. As regards the two cases relied upon by the learned Advocate-General the cases in Sayid Ali v. Ali Jan i.l.r. (1910) 35 and Atimannessa Bibi v. Abdul Soban 20 C.W.N. 113, it is enough to say that in those cases the trustee who had been lawfully appointed was sought to be removed. If those cases lay down the proposition that in all cases where there is a de facto trustee and where the suit is brought by the plaintiff to establish his right thereto the suit can only be brought under Section 92, the question will have to be further considered. In my opinion, wherever a preferential right is claimed, it is not a case of removing the trustee because the latter has no legal right to the office. It was contended, however, in the course of the argument by the learned Advocate-General that those two cases must be considered only as laying down that wherever there is a legal trustee, i.e., a person who is legally entitled to the office of trustee and his removal is sought, Section 92 is a bar to a suit by private parties. I agree in the order proposed by the learned Chief Justice that the suit should be dismissed as the frame of it shows that it should be brought under Section 92, Civil Procedure Code and not otherwise.