Venkatasubba Rao, J.
1. This is a relator's suit under Section 92 of the Code of Civil Procedure filed with the sanction of the Advocate-General. The suit property originally belonged to one Kaveri Ammal. By a registered deed dated the 21st September 1914, she dedicated the property to charity appointing two trustees (1), Ramanuja Mudaliar; and (2) Bhashyam Naidu.. It is not disputed that, so far as the language of the deed is concerned, the dedication was complete and that the donor reserved no rights for herself in the property. About seven years after this Kaveri Ammal executed a Will of which Probate has been obtained by the defendant. The latter is not strictly the granddaughter of Kaveri Ammal, because she is only the daughter of Kaveri Ammal's son-in-law. The Will deals with two properties, one of them being the suit property. These two houses are bequeathed to the defendant and she is directed to perform certain charities.. The object of the trust deed of 1914 is the performance of utsavams in the temple of Sri Ranganatha in Tiruneermalai village. It is necessary to notice the difference between the provisions of the trust deed and the provisions of the Will. Whereas, under the trust deed the entire income of the suit property was to be spent in performance of utsavams at Tiruneermalai, under the Will the defendant takes the suit house and the other house, the gift being burdened with an obligation to spend Rs. 50 in performing utsavams at the said temple of Sri Ranganatha in Tiruneermalai and to spend another sum of Rs. 50 in conducting certain other utsavams in the temple of Parthasarathi at Triplicane Madras. It will be noticed that by the Will, the income of the two houses is amalgamated and a composite trust is created. This is again a point of difference between the deed and the Will. What the defendant now does is this: she repudiates the trust and takes her stand upon the Will. She says that, so far the suit property is concerned, it remains in her, but that she is willing to carry out the charities mentioned in the Will in accordance with its terms. Thus, the defendant repudiates the trust and sets up a right adverse to it. In these circumstances, the defendant raises the question: Is the suit filed under Section 92 maintainable?
2. I have been asked by the learned vakil for the defence to say that the suit is not maintainable as being one against an alienee or trespasser. The defendant does not, of course, claim title under a conveyance inter vivos, but she relies upon a testamentary disposition in her favour. The testatrix, professing to be entitled to deal with the property, bequeathed it to the defendant, and the latter says that the property is hers. She is thus in the position of an alienee who sets up a claim adverse to the trust. The question to be decided is, can such a suit be instituted under Section 92? To answer this question I must turn to Section 92, for after all, the answer depends upon the right construction of that section. I shall read only what I think is the relevant portion of that section so far as the present point is concerned.
Where the direction of the Court is deemed necessary for the administration of any such trust (any express or constructive trust created for public purposes of a charitable or religious nature) two or more persons having an interest in the trust and hiving obtained the consent in writing of the Advocate-General may institute a suit and obtain a decree.
4. (b) Appointing a new trustee.
9. (g) Settling a scheme,
3. Has the direction of the Court become necessary for the administration of this trust? The two trustees originally appointed, namely, Ramanuja Mudaliar and Bhashyam Naidu are dead. An adverse claimant has taken possession of the property and is repudiating the trust. Can it then be denied that the condition laid down in the first part of the section has been satisfied? In these circumstances, two persons with the sanction of the Advocate-General have filed a suit to obtain a decree
(1) appointing a new trustee;
(2) settling a scheme.
4. I find nothing in the section which compels me to hold that this suit is not competent. The contention of the learned vakil for the defence is that to a suit under Section 92 you cannot implead as defendant a person who sets up a title adverse to the trust. I do not think that the proposition in such wide terms has ever been laid down; at any rate, if it has been, I must respectfully dissent from that view. What the Courts have said is that in a suit under Section 92 a decree cannot be passed against the alienee or trespasser directing him to deliver 'possession' of the property, as such a relief is not mentioned in the section. This is indeed a very different proposition from the one I am asked to accept. In this case the plaintiffs do not seek to recover possession from the defendant. The decisions have also laid down that Section 92 does not apply to a suit brought solely for the purpose of having a declaration that the property is trust property, for the reason that the section pre-supposes the existence of a trust. I do not propose to pass any decree making a declaration that the property is trust property. The decisions, therefore, that have been quoted are not in the way of my granting suitable relief in this case.
5. As I have said, what the Courts have decided is, that a decree cannot be passed in a suit under Section 92 for possession against a person who is neither a de jure trustee nor a trustee de son tort: in other words, against a person who repudiating the trust, sets up a claim adverse to it. But when I am asked to say that no suit can ever be filed under Section 92 against an alienee or a trespasser, I find it very difficult to follow the arguments. The question has often arisen whether to a suit for the removal of a trustee an alienee or a trespasser is a necessary or proper party. In a suit filed for removing a trustee, the Court has necessarily to give a finding that the property is trust property and that it has been wrongfully alienated by the trustee. Is this finding to be given in the presence of the alienee, or without him, on the record? If a decree for possession against the alienee cannot be passed in that suit (and I have shown it cannot) what is the effect of this finding when a second suit is instituted against the alienee: first, if he happened to be a party to the previous suit; and secondly, if he did not happen to be such a party? These are questions on which the various High Courts in India have taken different views, but I am not concerned with them at present.
6. Let us try to understand what the defence really amounts to. The defendant is in possession of the suit property, and it is said that a suit under Section 92 against her is incompetent. The question then arises, if such a suit is instituted, who is to be made a party? How is one to obtain any of the reliefs contemplated by Section 92? There are no trustees. None of the representatives of the founder, beyond the defendant, is available, and who then is to be made a defendant to the suit under Section 92? Then again, let us assume that the plaintiffs have filed this suit against the defendant in the ordinary way, and not under Section 92 (for the defendant contends that that is the right position). To whom is the Court to direct possession to be given? The plaintiffs are more worshippers and, ex-hypothesi no new trustees have been appointed, a suit under Section 92 for appointing new trustees, in the circumstances, having been found impossible. There are no means, therefore, by which possession can be decreed to those rightfully entitled to it. These considerations will show that the contention of the defendant is fallacious. I may take a typical and familiar instance. Supposing there is in a village an ancient temple which has had no trustees within living memory; supposing also that you cannot trace either the founder or his heirs; the temple is in a neglected condition and, I take it, that some neighbour has annexed it to his own private properties. In such a case, what is to be the procedure? If it is to be held that you cannot file a suit under Section 92 against the trespasser, the question naturally arises: Who is to be impleaded as a defendant to such a suit? It is suggested that you may take at random any chance worshippers and file a suit against them. Such a suit would be a farce. And what purpose would be gained by such a suit being filed? If a suit cannot be filed under Section 92 a scheme cannot be had, and new trustees cannot be got appointed. If it is, on the other hand, to be held, that a suit has straightway to be filed in the ordinary way against a trespasser, the question is: Who is to file such a suit, there being no one competent to claim possession? As on my assumption there were no trustees to start with, nor have new trustees been appointed. I think I have sufficiently indicated the dilemma which a possible plaintiff has to face when confronted with a situation such as the present. The view that I have taken that such a suit is competent is supported by authority. The obiter dicta in Venkatanarasimha Rao v. Subba Rao A. I. R. 1923 Mad. 376 support this view. The following very terse statement of Spencer, J., I respectfully adopt:
If a trust has been 'created for public purposes of a charitable or religious nature' a suit will lie for settling a scheme 'where the direction of the Court is deemed necessary for the administration of such trust.'
7. Jafarkhan Jatbarkhan Pathan v. Daudshah Mahomedshah Fakir : (1911)13BOMLR49 is a case directly in point and is strongly in favour of the view I have taken.
8. I, therefore, think that both the wording of Section 92 and the reason of the thing alike demand that it should be held that suit such as the present is maintainable and I hold it accordingly.
9. Turning to the facts of the case, the defendant pleads that the deed of 1914 was brought about by undue influence and fraud. The defence has examined one witness, and there is not even an attempt to prove the case set up in the written statement. Then it is urged that, from the conduct of Kaveri Ammal, it must be inferred that she did not really intend to divest herself of ownership in the suit property. On this point again there is absolutely no evidence. I may add that, in the Will she made, she expressly refers to the trust deed in such terms as to negative the idea that there were any vitiating circumstances attending its execution. I, therefore, record a finding that a trust for a public purpose of a charitable or religious nature was created.
10. What is the relief that can be granted in the suit? I have given a finding that the suit property was dedicated to the charity referred to in the plaint, and that is all that is necessary. I cannot grant a declaration to that effect, as such a declaration is neither called for, nor does it come within the purview of the section. So that relief is not granted, and that is prayer No. 1. Prayers Nos. 2 and 4 relate to the appointment of new trustees and framing of a proper schem). These two reliefs I an prepared to grant.
11. The case is adjourned to Thursday to enable the plaintiffs to bring in a proper scheme. The defendant is directed to pay the plaintiffs their costs of the suit.