Abdur Rahim, Officiating C.J.
1. the question referred to the Full Bench is in these terms: ' can the present suit be maintained at the instance of the plaintiffs acting neither on the relation of the Advocate-General nor with the sanction prescribed by Section 18 of the Religious Endowments Act, but merely suing on behalf of themselves and of other worshippers of the temple?' It appears from the plaint in this suit that the Devastanam Committee of the Temple of Venkataramana Swami in Tandoni Hill near Karur, now represented by defendants 1 to 9, granted on 9th September 1893 what is called a perpetual lease of the right to collect, offerings made by the pilgrims in cash and in gold and silver jewels, to defendants 10 to 14 who are the Archakas and Stanikas. It is alleged that the alienation of what is a chief source of income of the temple is highly detrimental to its interests, was beyond the power of the Committee and is not binding on the temple.
2. The main reliefs which the plaintiffs claim are ' (a) to declare that the Committee had no power to make the alienation in question, (b) that alienation of the right in question is invalid and not binding on the temple, (c) to direct that the trustee or the manager duly appointed should retain the right of collecting the hundis in question' ('hundi' is the receptacle in which the offerings are put). The trustee has not been impleaded in the suit. No sanction was obtained under Section 92 of the Civil Procedure Code either of the Advocate-General or of the Collector and the question for our opinion is whether, without it the suit which is instituted by two of the worshippers on behalf of themselves and the other worshippers with the leave of the Court obtained under Order I, Rule 8 of the Code of Civil Procedure, can be maintained.
3. Section 92 of the present Civil Procedure Code corresponds to Section 539 of the old Code with some difference. One important change is embodied in sub Section 2 of Section 92, which says 'save as provided by the Religious Endowments Act, 1863, no suits claiming any of the reliefs specified in Sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity to the provisions of that section.' This has made clear what was formerly the subject of conflicting decisions, viz., that if the object of a suit is to obtain any relief of the specified description it will be entertained only if the conditions mentioned in the section are fulfilled.
4. In considering whether any of the reliefs asked for in a suit relating to a public, religious, or charitable trust answers the description of those mentioned in Section 92, we must obviously have in regard the intrinsic nature of the relief claimed and not the language in which the draftsman of the plaint has chosen to express it. In this case, prayer (c) of the plaint i. e., 'the Court may be pleased to direct that the trustee or manager duly appointed should retain the right of collecting the hundi in question, is the only one which it is suggested corresponds to a relief specifically mentioned in Section 92, viz., a decree vesting any property in a trustee. Now there can be no doubt that, as found, the alienation of the right by the Committee and the trustee was void and did not bind the temple in any way. The trustees were therefore never divested of the property which always remained vested in them and hence no order of the Court vesting it in them was necessary. The phrase ' vesting any property in trustees' seems to contemplate cases where new trustees have been appointed or other cases of a similar nature such as those mentioned in Sections 26 to 35 of the Trusts Act of 1893 of England. See Godefroi on Trusts, pages 512 to 516.
5. Then, are the reliefs asked for in this suit of the nature contemplated by the general Clause (h) ' granting such further or other relief as the nature of the case may require.' That clause is not new: it found a place in Section 539 of the Code of 1882. And it has always been held that it must be read along with the specified reliefs and the reliefs that can be granted under the general clause should not be of a character different from those expressly mentioned. See Budh Singh Dudhuria v. Niradbaran Roy I.L.R. (1890) Bom. 309.
6. It has been ruled in a long series of decisions by all the Courts that neither the old Section 539 nor the new Section 92 includes within its purview suits in which relief is sought against persons other than trustees, whether they are alienees from the trustees or trespassers. This special provision of the Code does not apply to suits the object of which is to establish that the property in the hands of strangers belongs to the trust and to recover the same. Its scope is confined to cases in which a proper administration of the trust is sought to be secured. See Srinivasa Ayyangar v. Srinivasa Swami I.L.R. (1891) B. 612 Subramania Iyer v. Nagarathna Naicker I.L.R. (1896) Cal. 645 Raghavalu Chetty v. Pellati Sitamma (1869) 13 M.I.A. 270 Rangasami Naidu v. Chinnasamy Iyer I.L.R. (1905) At. 391 Budree Das Mukim v. Chooni Lal Johurry I.L.R. (1908) Cal. 691 Ayatunnessa Bibi v. Kulfu Khalifa (1862) 10 H.L.C. 191 Ali Haffiz v. Abdur Rahaman I.L.R. (1886) MAH. 463 Budh Singh Dudhuria v. Niradbaran Roy (1918) 19 I.C. 973 Collector of Poona v. Rai Chanchal Bai (1915) 28 M.L.J. 110 Ghelabhai Gavri Shanher v. Uderam Icharam I.L.R. (1911) All. 660 Gauzaffar Husain Khan v. Yawar Husain I.L.R. (1913) All. 197 and Tika Ram v. Ratan Lal I.L.R. (1915) Cal. 1135. There is only one case brought to our notice in which a different view has been taken namely Sajedur Raia Chowdhuri v. Gour Mohun Das Baishna v. I.L.R. (1897) Cal. 418. With that exception the consensus of opinion in all the High Courts has hitherto been that suits in which relief is asked for against strangers to the trust whether they are alienees from the trustees or trespassers are outside the purview of Section 539 of the Code of Civil Procedure and I am not prepared to hold that this view is not warranted by the language of the statute. In certain cases it might lead to a multiplicity of actions and perhaps to a conflict of decisions. On the other hand, the legislature might well have thought that where the main object of a suit is to secure a proper administration of the trust it is not desirable to complicate matters by allowing questions being raised between the trust on one hand and third parties claiming adversely to the trust. Having regard to the uniform trend of decisions upon Section 539 of the Code of 1882 so far as this point is concerned, if the legislature thought the Suits such as this should not be instituted except with the sanction of the Advocate-General, one would have expected it to include an express provision to that effect in Section 92 of the present Code as it did as regards the removal of a trustee. I may mention that it has been suggested in Collector of Poona v. Bai Chanchal Bai (1905) 2 C.L.J. 431 that the alienees from a trustee would be proper parties to a suit under Section 539 though no relief could be given against them by way of a decree in ejectment: and that suggestion has been approved by my learned brother Mr. Justice Seshagiri Aiyar in Raghavalu Chetty v. Pellati Sitamma I.L.R. (1892) Mah. 31. It is not necessary however to express any opinion on that point, nor on the suggestion made by Mr. Justice Greaves of the Calcutta High Court in Ali Hajfiz v. Abdur Rahman (1909) 20 M.L.J. 151 that the alienees might be treated as trustees and asked to convey the property to the duly appointed trustees.
7. The answer to the question referred to us should be in the affirmative.
Seshagiri Aiyar, J.
8. I stated in the order of reference some of the reasons which led me to think that, notwithstanding the conflict of decisions, it was desirable to allow persons, like the plaintiffs in this case to institute suits under Order I, Rule 8 of the Code of Civil Procedure.
9. A brief historical sketch of the development of processual law in conserving trust properties for the trust may be given in order to see to what extent the existing judicial differences of opinion are capable of adjustment. The old Supreme Courts had an equitable jurisdiction in respect of charities. Under 53 George III, Ch. 155, Section 111, the Advocate General was empowered to lay informations and to represent the Crown regarding the administration of charitable funds. This prerogative only extended to the local limits of the ordinary original civil jurisdiction of the High Court. In the Mofussil Courts, he had no right to intervene. The Civil Procedure Codes of 1859 and 1861 did not give him any such power. It was in the Act of 1877 that provisions were inserted for the first time which gave the Advocate General a voice in the administration of charitable trusts in the Mofussil. Religious trusts were not even then included.
10. The Act of 1882 introduced some changes. Religious trusts were brought within the purview of the section and some minor amendments were made. The main object of the legislature was not yet achieved. Under Section 539 of the Act of 1882, it was held that a resort to its provisions was not mandatory, but only permissive. There was no clause in the Act authorising the removal of the trustee. Only the District Courts in the presidency had jurisdiction in the matter.
11. The Act of 1908, by Section 92 has introduced farreaching changes : (a) any Court of civil jurisdiction empowered in that behalf can take cognisance of the suit; (b) a clause is inserted enabling the Court to remove a trustee ; (c) the operative portion of the sanction says that proceedings may be either contentious or noncontentious. Clause (d) provides for directing accounts and enquiries; and finally, Sub-section (2) prohibits the institution of suits of the kind contemplated by the section except in conformity with the provisions of Sub-section (1).
12. The above outline gives some indication of the expansion of the legislative mind on this question. There is first a tentative provision. Only some charities are included. Subsequently every form of public charity is brought in and the permission develops into a mandate.
13. If this is the bent of mind, can the section be so construed as to cover all cases of abuse? The difficulty lies in the wording of the sub-clauses of Sub-section (1). If under the section a trustee can be removed and a new one appointed, if accounts can be asked of the old one and enquiries can be directed against his management and if a scheme can be settled for the management, at first sight, it is difficult to understand why possession should not be taken from a person unlawfully holding trust properties and why a declaration should not be given that the properties alienated belong to the trust. The principle that the express mention of a few instances implies the exclusion of others is the first obstacle in the way. Can the residuary Clause (b) be invoked to grant the relief as to possession or declaration? The terra ' further relief' is of no use. If at all, these claims should be included in the word 'other'. But when the legislature enacted Section 92 of the Code of Civil Procedure, all the High Courts had held that the previous Section 539 would not cover suits for possession against strangers. And yet although a clause enabling the removal of a trustee was inserted in order to put an end to a controversy in that behalf and although a clause about enquiries and accounts from trustees was added, this prayer was not specifically provided for. Under these circumstances, it would be doing violence to the language employed by the legislature to hold that possession against strangers is within the purview of Section 92. The same observations hold good with reference to declarations. Excellent reasons may be advanced for the contention that there is no reason for excluding suits for possession or declaration from the operation of the section: but we have to construe the section as it is and not as it ought to be; and although I feel strongly that the view hitherto entertained leads to anomalies and multiplicity of suits, I feel constrained to adhere to the other view by the fact that very eminent Judges have construed the section differently and that that contention has held the field for a long time. To the number of those that have taken this view has to be added the Officiating Chief Justice in the present case.
14. I do not think I will be justified in the face of this weight of authority for the other view, in giving effect to what I feel convinced is the real intention of the legislature.
15. If I may venture a suggestion, the time is come for the intervention of the legislature by inserting a clear and unambiguous provision in the Code of Civil Procedure that all relief relating to public, religious and charitable trusts, except those which partake of the character of personal or communal rights should be litigated only under the provisions of Section 92(1). An amendment of Act XX of 1863 may be necessary to give full effect to this suggestion.
16. In the present case, the trustee is not before the Court and what is asked for is virtually a declaration that the action of the Devastanam Committee in alienating trust property is not binding on the trust. The decided cases to which I referred on the last occasion, with practical unanimity, hold that such a suit is not within Section 92 of the Code of Civil Procedure.
17. Following those decisions, I agree in answering the question referred to us in the affirmative.
18. In view of the numerous decisions, extending over a long period, which have answered the question referred in the affirmative I agree that the same answer should now be given. At the same time I wish to express my agreement with the views of my learned brother Seshagiri Aiyar, J. and the views expressed by Coutts Trotter, J. in his order of reference and venture to state my opinion that it is desirable that Section 92 of the Code of Civil Procedure should be made to include suits of the nature of the one before us.