1. This appeal arises out of a suit under Section 92, Civil P.C. The subject-matter of the trust is a choultry of which defendant 1 became the trustee and manager (sometime between 1893 and 1897) under the provisions of (Ex. D-l), an agreement between himself and his adoptive mother plaintiff 1, dated 22nd June 1888. Since 1903 defendant 1 would appear to have been ignoring the trust and treating the property as his own. One of his sons purported to alienate his share in the property to one Narayanaswami Chettiar under whom defendant 2 claims. Defendant 3 has become the purchaser of the suit property in execution of a decree obtained against defendant 1 in Small Cause Suit No. 2496 of 1927 on the file of the Kumbakonam Small Cause Court. The result has been that for many years past the suit property is not being used for the purpose of the trust at all and defendant 1 has been clearly guilty of breach of trust. This suit was accordingly filed for the removal of defendant 1 from the office of trustee, for the appointment of a new trustee and for the settlement of a scheme for management.
2. In view of the principal contentions pressed in the appeal, it is necessary to refer to the reason given in the plaint for impleading defendants 2 and 3. In para. 15, it is stated:
Though no relief by way of recovery of possession can be legally claimed against them in this suit still they are proper parties to the action in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit and to prevent multiplicity of suits.
4. It has been explained before us that this course was adopted at the instance of the Advocate-General who, when applied to for sanction, wished to make sure that it will not be a collusive suit between the plaintiffs and defendant 1, as the only persons interested in asserting that the suit property was private property and not trust property, were defendants 2 and 3. If this is what happened, the plaintiffs would have run a serious risk if they had deleted the names of defendants 2 and 3 from the record of: Mohadeen Saheb v. Fakruddin Saib 1925 21 MLW 71. Defendant 1 remained ex parte and died during the pendency of the suit. As anticipated by the Advocate-General, defendants 2 and 3 contended that the suit was collusive and that the plaint property did not belong to any trust and much less to a public religious or charitable trust. They further took the objection that they were neither necessary nor proper parties to the suit and that the suit was bad for misjoinder of parties and causes of action. The learned Subordinate Judge found that the suit property had been dedicated to a public charitable trust and had been used as such from 1880 to 1903. On the fourth issue which raised the question of misjoinder he held that as defendants 2 and 3 claimed right to the suit property they were necessary parties to the suit and that the suit was not bad for multifariousness. Two questions have been argued in this appeal on behalf of defendant 3; (1) on the merits, that the learned Judge should have held that a trust within the meaning of Section 92, Civil P.C. had not been established; (2) as a, question of procedure, that the learned Judge should have held that defendants 2; and 3 were neither necessary nor even proper parties to the suit.
5. The question or the merits may be briefly disposed of. The intention to build a choultry in the name of first's defendant's adoptive father was stated in Ex. A as early as in 1875. The evidence shows that the choultry was built between 1880 and 1885 and this is confirmed by the recital in Ex. B. Some years after attaining majority defendant 1 brought O.S. 53 of 1887 against his adoptive mother; and in compromising it, the parties entered into the agreement Ex. D-1 wherein the choultry is referred to as an existing charity, and provision is made for its management by defendant's 1 paternal uncle and, after his death, by defendant 1. Even in the lease deed (Ex. G) taken by defendant 1 in June 1897, in respect of a portion of the suit property, the building is referred to as 'the charity choultry' which came to him under Ex. D-l after the death of his paternal uncle. And provision is made therein for a lamp being lit every evening and kept at the entrance of the choultry. The documents above referred to establish the dedication of the suit property beyond all doubt, and with the oral evidence adduced on the plaintiff's side, they prove that till about 1903 the building must have been used for the purpose of the trust. The fact that since 1903 defendant 1 has ignored the trust or used the property in breach of trust cannot affect its trust character.
6. On behalf of the appellant it was suggested that as plaintiff 1 was only entitled to a widow's estate she could not have validly dedicated the property. It is enough to say in answer that she purported to act under her husband's direction and that defendant 1 has, even after he attained majority, accepted the trust by Ex. D-l. It was also suggested that the trust, if any, should be held to attach only to the building and not to the adjoining vacant land. But the adjoining land would seem to form part of the appurtenances required for the convenient use of the building; and the description of the property in the schedule to Ex. D-l makes it clear that the building as well as the adjoining vacant land constituted the endowment. As to the point of law, the reference to it in issue 4 as an objection on the ground of 'multifariousness' is not accurate, because no relief has been claimed against defendants 2 and 3 on any independent cause of action. Appellant's learned Counsel therefore urged the objection only as one to the joinder of defendants 2 and 3 in view of the limited scope of the Court's jurisdiction under Section 92, Civil P.C. He relied strongly on the decision of the Rangoon High Court in Johnson Po Min v. U Ogh 1932 10 Bang 342 and also contended that the observations of Mukerjee, J., in Budh Singh v. Niradbaran Roy (1905) 2 Cal LJ 431 and Gholam Mowlah v. Ali Hafiz 1918 28 Cal LJ 4 and of Sir John Wallis in Raghavalu Chetti v. P. Sitamma 1915 27 MLJ 266 support his objection.
7. In all these oases relief had in fact been asked for against the third parties and the learned Judges rightly held that the balance of authority in this country was against granting such relief in suits under Section 92, Civil P.C. With due respect I am however constrained to hold that some of the observations in these cases are too broadly expressed whatever the position may be. When an absolute stranger in possession of property alleged to belong to the trust either denies the trust or pleads adverse possession against the trust, it seems to me a distinction ought to be drawn between such a case and one in which a person who has come into possession of the alleged trust property through or in the right of the settlor or of a trustee, denies the existence of the trust or the title of the trust to the property in his possession. It does not seem to me right to assimilate the position of the latter to that of a trespasser. It is well settled that the mere fact of a trustee de jure or de facto denying the existence of the trust or the title of the trust to the property in his possession does not oust the jurisdiction of the Court under Section 92, Civil P.C. Is there sufficient justification for treating differently a case in which the trust is denied by one who came into possession under or claims in the right of the settlor or trustee? It is unnecessary for the purpose of this case to discuss the position of an alienee who admitting the trust seeks to maintain the validity of the alienation in his favour.
8. It may for the purpose of this case be taken that in a suit under Section 92, Civil P.C., as under Section 539 of the old Code, no relief could be granted as against third parties. The question for consideration is whether from this
it follows, as a necessary corollary, that the Court is not competent to bring before the forum any such person: Gholam Mowlah v. Ali Hafiz 1918 28 CLJ 4 .
9. In Abdur Rahim v. Mahomed Barkat Ali 1928 55 Cal 519, the Judicial Committee advert to the fact that Courts in India have differed considerably on the question whether third parties could or should be made parties to such a suit; but they refrain from expressing any opinion of their own on the point. It has been pointed out to us that their decision on the question of res judicata raised in that case rests on the ground that a suit under Section 92 ceases to be a representative suit when once strangers are added as parties and reliefs not covered by Section 92 are included, and from this, it has been contended that it must be taken to be their view that in a suit under Section 92 no binding adjudication can be made on a point in which a stranger is interested. I am unable to accept this argument. The principle of res judicata was there invoked by the person who denied the title of the trust and he relied for that purpose on a consent decree in a former suit. Their Lordships doubted whether a plea of res judicata could in the circumstances be founded on a consent decree at all. In an earlier page (p. 524) they had referred to the fact that the addition of strangers as parties and of a declaratory prayer had been made without the sanction of the Advocate General and it is in the light of this circumstance that they said on p. 531 that in so far as the nature of the suit had been changed by the amendments mentioned, the suit ceased to be one of a representative character. This cannot be treated as any authority bearing on a case where all the parties had been impleaded with the knowledge and consent of the Advocate General and no relief not falling within Section 92 has been asked for : of Maher Husein v. Ali Mohamed 1934 Bom 257 .
10. It may be convenient, before referring to the Indian authorities, to make a few general observations. It was at one time thought that the scope of the inquiry to be held and the reliefs obtainable under the corresponding section of the old Code was limited by the analogy of proceedings under Lord Romilly's Act. But this view is no longer tenable in view of the amendments introduced in the Code of 1908, making it clear that a proceeding under Section 92 may be contentious and may result in the removal of a trustee. The view taken in many of the English cases has been coloured by the fact that the procedure under Lord Romilly's Act was avowedly summary and the remedy by way of information' was always open to the Attorney-General : see Ex parte Skinner (1817) 2 Mer 453 and Ex parte Skinner (1818) 1 Wils Ch 15. The procedure under Section 92 of the Indian Code is in no sense summary; and so far at any rate as the Advocate-General is concerned, it is doubtful if the section can be regarded as prescribing only a cumulative remedy in the sense that he has a right of suit independently of the section; Clause 2, Section 92 would indicate the contrary. It must also be remembered that it was only as a matter of judicial discretion that relief under Lord Romilly's Act was limited to cases of 'plain and simple' breaches of trust, where the question arose only between the trustee and coestuique trust.
11. As early as in Ex parte Beea (1814) 3 V&B; 10, Lord Eldon indicated that it was not a question of want of jurisdiction in the Court to decide an adverse claim. Under the Charitable Trusts Act of 1853 the Court of appeal held that on summons the Court had jurisdiction to decide whether the property which was the subject of the summons was held upon a charitable trust or not: In re Norwich Sown Close Estate Charity(1889) 40 Ch D 298. In view of these considerations Mukerjee, J., took care in Budh Singh v. Niradbaran Roy (1905) 2 Cal LJ 431 to say that he was not basing his opinion upon the decisions under Lord Romilly's Act. Mukerjee, J., refers to the observation of Turner, L.J., in Attorney-General v. Corporation of Avon(1863) 3 DEG, J&S; 637, that persons claiming, a title adverse to a trust should not be made parties to a suit for the execution of the trusts. This remark was made in a proceeding arising out of an 'information' and not on a mere petition the reason for it-and this must be borne in mind in applying here the dicta in the Chancery cases-is to be found in the division of jurisdiction between the Common Law Courts and the Court of Chancery and the distinction between Common Law actions and proceedings in equity. An action raising a question of title must be filed in the Common Law Courts and the Court of Chancery would not Undertake to decide such a question. This principle coloured the legislation in England as well as the decision relating to charities : see Holme v. Guy (1877) 5 Ch D 901, Glen v. Gregg (1883) 21 Ch D 513n and Attorney-General v. Sydney Sussex College(1867) 15 WR 162 and in the Charitable Trusts Act of 1853 there was an express provision (in Section 17) excluding proceedings in which any person shall claim any property or seek relief adversely to any charity. Section 92, Civil P.C. has no doubt been modelled on the practice of the Chancery Courts, but as that division of jurisdiction is not part of the law of this country, limitations arising out of that conflict of jurisdictions have no direct application here.
12. The non-inclusion of certain kinds of relief in Section 92, Civil Procedure Code, has, if I may say so with due respect, sometime been misinterpreted; if a relief is specified in that section, the result will be that a suit for that relief cannot be brought except with the consent of the Advocate General or the Collector. It was certainly not the intention of the legislature that every suit which may in any sense relate to a trust should be brought only after obtaining such consent. A trustee could undoubtedly sue for the possession of the trust property without such consent; and if the beneficiaries may in certain circumstances be entitled to ask that possession of the trust property be given to a trustee, Venkataramana Aiyengar v. Kasturi Ranga Iyengar 1917 40 Mad 212 and Chidambarnatha Thambiran v. Nallasiva Mudaliar 1918 41 Mad 124, it was apparently not the intention of the legislature that they should obtain the consent of the Advocate General or the Collector before filing such a suit. This aspect of the matter has to be emphasised because it will show that the non-mention of certain reliefs in Section 92 is not necessarily with a view to impose a disability upon the Court as to make it clear that in respect of those reliefs the previous consent of the Advocate-General or Collector to the institutions of the suit is not necessary; it is true that a decree for possession in favour of the plaintiffs is not contemplated in suits under Section 92, Civil P.C., but that is sufficiently accounted for by the fact that the plaintiffs in such suits will be relators who will not prima facie be entitled to possession. Again it is true that Section 92 is in a sense an enabling section in that it confers on two or more members of the public a right to seek relief without any proof of special damage. But once the Court is moved, the scope of its enquiry must be determined in the light of what is germane to the various matters indicated in Section 92 and not by reference to the right of the plaintiffs to particular reliefs.
13. What is the appropriate procedure when certain persons interested in a trust desire to have the trust character of certain property established as against a person in possession as the heir at law or one claiming through an alleged settlor or trustee, when the latter denies the trust? In cases of this kind it may sometimes happen that there is no trustee at all, de jure or de facto. It cannot be contended that persons interested in the performance of the trust cannot in such cases institute a suit under Section 92 for the appointment of a trustee and for the framing of a scheme and for other necessary direction. But the very first step in such a suit will be for the Court to be satisfied that there is a trust in respect of which its intervention is necessary. The only person interested in denying the trust may be the heir at law or other person in possession. Is it legitimate or desirable that the Court should determine the question of the existence of a trust without hearing the only person who is concerned to deny it If the question is to be determined with reference to the general considerations governing the joinder of parties, there can be little doubt as to the proper course. The rules relating to joinder are based on the principles of avoiding multiplicity of suits not merely as involving waste of time and money but also possible conflict of decisions: Benecke v. Frost (1876) 1QBD 419. Even in proceedings relating to charities, it is a consideration well worth bearing in mind that if the so-called third party gets an opportunity of having his title investigated in his presence he may well abide by the conclusion then arrived at and may not insist on another suit being filed merely for the formal relief by way of recovery of possession: of. Attorney-General v. Pretyman (1814) 8 Beav 316. It is not necessary to justify the addition of a defendant that he should be interested in all reliefs or questions arising between the plaintiff and the other defendants: Swanesa Shipping Co. v. Duncan (1876) 1 QBD 644. (As to the test of determining who are proper parties, see Keshavaram v. Ranchhod (1906) 30 Bom 156 , Secretary of State v. Murugesa 1929 Mad 443 and the authorities referred to there.)
14. The decision in Vaithinatha Aiyar v. Swaminatha Iyer 1924 47 Mad 884, is instructive in this connexion. The defendants in that case were no doubt trustees, but not of the trust alleged in the plaint. The plaintiffs claimed that Suri Iyer himself had held them only as a trustee, but the defendants contended both before the High Court and before the Privy Council that no trust of the kind alleged by the plaintiffs existed before Suri Iyer's will. As pointed out by their Lordships, the defendants claimed to be trustees under the will of Suri Iyer who had purported to deal with the property as his own; they were in law strangers to the trust alleged in the plaint and yet neither the High Court nor the Privy Council felt any hesitation in deciding, in their presence and in a suit under Section 92 Civil P.C. the question whether or not there had been a declaration of the kind alleged in the plaint. After the Court had found in favour of the trust, a further point was raised as to whether or not certain properties had been bequeathed to the trust by the will of one Swaminatha Iyer. It was contended before the High Court on behalf of the defendants that the Court was not entitled in that suit to go into the question of the construction of Swaminatha Iyer's will. But the High Court said:
We accept the contention (of the plaintiffs) that under Section 92, Civil P.C., when we are asked to frame a scheme one of the essential enquiries to be made is what are the properties belonging to the charity. As the defendants who are in possession of the choultry and its properties deny that the choultry is entitled to any benefits under the provisions of the will as claimed by the plaintiff, it is open to us to go into the question: Vaithinatha Aiyar v. Thegaraja Iyer : (1921)41MLJ20 .
15. With this may be compared the following remarks of Cotton, L.J., in In re Norwich Sown Close Estate Charity (1889) 40 Ch D 298 :
It is essential that the Court which directs a scheme to be prepared and settled should have jurisdiction to decide that there is a charity with reference to which a scheme can be directed.
16. The learned Lord Justice no doubt added that:
If there are persons claiming adversely to a charity and who are not willing to abide by the opinion of the Court as to whether it is a charity or not, then in order to enforce the charity as against these adverse claimants,
there must be an information, because on the summons there is no jurisdiction to enforce a scheme against adverse claimants; but this observation can only refer to the enforcement of the claim of the trust and not to the declaration of the existence of the trust; for in that very case the declaration was made in the presence of and in spite of the objection of those who denied the trust. The succeeding sentence as to the scope of the relief obtainable on an 'information' and the remarks of Lindley, L.J., make this clear. When the Vaithinatha Aiyar v. Thegaraja Iyer : (1921)41MLJ20 , case went before the P.C. the question of the existence of the trust alleged in the plaint as well as that relating to the construction of Swaminatha Iyer's will were decided on the merits and no objection was raised either by their Lordships or by Mr. Upjohn, K. C. to the propriety of these matters being dealt with in the presence of the defendant, and under Section 92, though the preliminary objection as to the plaintiff's interest under that section was discussed at some length. Venkatanarasimha Rao v. Subba Rao 1923 46 Mad 300 is another instance of the same type. The defendant in possession there was the heir at law of the person who was alleged to have bequeathed properties to a trust and objection was taken on his behalf that Section 92, Civil P.C. does not apply to a case where the defendant claims the property under some title in denial of the trust (see argument at p. 304). The objection was overruled and Spencer, J., observed (at p. 310) that:
The person who is the heir at law and in possession of the property which is impressed with the character of trust property has an interest and is a proper party to such a suit.
17. The other learned Judge Devadoss, J., observed on p. 324:
The defendant claims to repudiate the provisions of the will.... His interests are no doubt adverse to that of the plaintiffs who want to maintain that there is a trust ... No doubt the defendant in this suit could not be made to pay amounts due to or to surrender the properties, if any, belonging to the trust he being a stranger to the trust. On the framing of a scheme and on the appointment of trustees he should be proceeded against by the trustees for such reliefs as they may deem fit. In this sense no doubt the suit is unsustainable, but the suit is perfectly competent for the purposes of enabling the Court to frame a scheme in respect of the charitable bequest contained in the will.
18. The learned Judge felt no doubt as to the propriety of retaining the defendant as a party to the proceeding in which they were called upon to determine the effect and validity of the provisions in the will.
19. In Eralappa Mudaliar v. Balakrishniah : (1927)53MLJ183 , Venkatasubba Rao, J., points out some of the anomalies that must result from the view that a person who denies or repudiates the trust cannot be impleaded in a suit under Section 92, Civil P.C. In Subramania Iyer v. Venkatachala Vadhyar 1918 4 MLW 444 the learned Judges (Ayling and Srinivasa Ayyangar, JJ.) clearly assume that in a suit under Section 92, Civil P.C. a finding can be given that certain properties are trust properties in the presence of persons interested to deny that fact and this they do after referring to the decisions in Raghavalu Chetti v. P. Sitamma 1915 27 MLJ 266 and Rangayya Naidu v. Chinnasami Iyer 1916 28 MLJ 326. This shows a recognition of a distinction between a finding that the property in question belongs to the trust and a declaration that an alienation of trust property is not binding on the trust. In view of the experience of the learned Judges who decided the case, the authority of the case is not in my opinion, diminished by the fact that (on p. 451) they refer to the agreement of counsel to have the decree so amended, 'as to make it clear' that the finding as to the trust character of the property should be binding on the alienee in future proceedings. In the Rangoon case Johnson Po Min v. U Ogh 1932 10 Rang 342, the learned Chief Justice starts with the assumption (on p. 349) that Section 92 which is found in the chapter headed 'Special Proceeding' must have the same scope and object as was ascribed by Lord Eldon in Ex parte Skinner (1817) 2 Mer 453 to proceedings under Lord Romilly's Act. He would rocognize no distinction between the question as to the existence' or nonexistence of a trust as an institution or in respect of particular properties and the question of the validity of that particular alienation of what is admitted to be trust property. He assumes that because a decree for possession could not be given in favour of the plaintiff, it must follow that the Court cannot consider any question relating to the title of the trust to property if it is denied by a stranger. With due respect I venture to think, for the reasons above indicated, that these assumptions are not correct, nor is his final argument that in suits under Section 92 the plaintiffs cannot invoke the provisions of O. I, R 10, Civil P.C. Amongst the Madras oases he relies, on the observations of Sir John Wallis in Raghavalu Chetti v. P. Sitamma 1915 27 MLJ 266, and makes a passing reference to Eralappa Mudaliar v. Balakrishniah : (1927)53MLJ183 only to express his dissent from it. He does not refer to any of the Madras decisions above dealt with. He realises that even in Raghavalu Chetti v. P. Sitamma 1915 27 MLJ 266 the observations of Seshagiri Iyer, J., are to a different effect, but he thinks that in Venkataramana Aiyengar v. Kasturi Ranga Iyengar 1917 40 Mad 212, Seshagiri Iyer, J., resiled from this opinion. I must confess, I am unable to see anything in the judgment of Seshagiri Iyer, J., in Venkataramana Aiyengar v. Kasturi Ranga Iyengar 1917 40 Mad 212 that can be interpreted as going back upon the opinion expressed by him in Raghavalu Chetti v. P. Sitamma 1915 27 MLJ 266 as to the propriety of having third parties before the Court in certain circumstances, though no relief can be granted against them. The learned Counsel who argued the case before us on behalf of the appellant has not been able to point to any such thing in the judgment in Venkataramana Aiyengar v. Kasturi Ranga Iyengar 1917 40 Mad 212. If the learned Chief Justice had in view the observation on p. 231,I may observe that they only show that Seshagiri Iyer, J., regretted that suits even for relief by way of declaration or possession had not been included in Section 92, Civil P.C., but felt bound by the weight of authority to hold that such relief could not be granted in suits under Section 92. There is nothing in this that is opposed to his judgment in Raghavalu Chetti v. P. Sitamma 1915 27 MLJ 266 because even there he agreed with Sir John Wallis that neither possession nor even a declaration as to the invalidity of an alienation could be given. It is after a statement of that conclusion that the learned Judge nevertheless held that the alienees would be proper parties. In Vaithilingam v. Ramalingam Pillai 1918 6 MLW 9 which was decided some months after Venkataramana Aiyengar v. Kasturi Ranga Iyengar 1917 40 Mad 212 the learned Judge (sitting with Ayling, J.) referred with apparent approval to Raghavalu Chetti v. P. Sitamma 1915 27 MLJ 266 and affirmed the application of Order 1, Rule 10, Civil P.C., to suits under Section 92. In Parameswaram v. Narayanan Nambudri 1917 3 MLW 305, the learned Judges assume that Order 1, Rule 10 is applicable to suits under Section 92, Civil P.C. Proceeding now to the observation of Sir John Wallis in Raghavalu Chetti v. P. Sitamma 1915 27 MLJ 266, it will be noticed that he was of opinion that the alienee defendants would be proper parties 'if they had desired to be made parties,' but that they ought not to be made parties against their will. It seems to me that this distinction suggests a consideration of convenience rather than an objection of want of jurisdiction; because, if it is a question of absence of jurisdiction in the Court itself, it is difficult to see how the consent of the alienee defendants will make them proper parties Glen v. Gregg (1883) 21 Ch D 513. The observations are more on the lines of the English authorities on Lord Romilly's Act and the Charitable Trusts Act. Thus, in In re Norwich Sown Close Estate Charity(1889) 40 Ch D 298 to which reference has already been made, Cotton, L.J., remarked:
Here Mr. Warningten's clients say : 'We want this question settled in the most inexpensive way possible. That amounts to this : that if the Court has jurisdiction, as I think it has, to decide that this is a charity, they will not insist on being treated as adverse claimants nor refuse to allow the rents of the property or of the land to be enjoyed by the charity without an adverse decree against them compelling them to hand over the property to those who under the charity are entitled to it: see also the last sentence of the Vice-Chancellor's judgment in In re Magdalar Land Charity (1852) 9 Hare 624.
20. It is not clear whether Sir John Wallis was of opinion that Order 1, Rule 10, Civil P.C., cannot be availed of in suits under Section 92, Civil P.C. The observations of Mukerjee, J., in pp. 17 and 18 of Gholam Mowlah v. Ali Hafiz 1918 28 CLJ 4 equally leave it in doubt whether the learned Judge was of opinion that the-rule did not apply or merely that it was-of no assistance in the circumstances of the particular case. Sanderson, C.J., only refers to Order 1, Rule 3 and not to Rule 10, I do not refer at any length to the decisions of the High Court of Allahabad and Bombay because Page, C.J., recognises that they not merely permit the joinder of third parties but would even go further.. I respectfully agree with the opinion expressed in Lachman Prasad v. Munia 1925 47 All 867 .
21. It was argued on behalf of the appellant that it would be anomalous to have a stranger as a party to the suit when no relief could be awarded against him, because, it was said, he would have no-right to appeal against any adverse finding and such finding could not therefore operate as res judicata. Assuming that the existence of a right of appeal in the party affected is a necessary condition for the application of the rule of res judicata, as to which see Muthayya Shetti v. Kanthappa Shetty 1919 34 M LJ 431, I am not satisfied that the so-called stranger will not have a right of appeal against an adverse finding, merely because no decree for possession or even by way of declaration is passed against him. The decree actually passed in the suit will presumably rest on that finding and the finding cannot therefore be regarded as unnecessary; if so, there is authority in favour of permitting a right of appeal to such stranger, though there may be no decree against him : see Ranganatham Chetty v. Lakshmu Animal (1913) 21 IC 15, Kottayya v. Mallaya (1911) 9 MLT 39, Raghava Iyengar v. Irula Thevan : AIR1926Mad974 . Venkateswaralu v. Lingayya 1924 47 Mad 633 and Secy. of State v. Swaminatha Koundan 1915 37 Mad 25. further, it will in all probability happen in such cases that there will be an award of costs against him when his claim of title was found against and that itself may suffice to enable him to canvass the finding in an appeal: of Ramakrishna Naidu v. Krishnaswami Naidu 1920 36 MLJ 641 . Even if the finding cannot for any reason operate as res judicata, it cannot altogether be valueless; apart from the chances of the third party accepting a finding arrived at in his presence, the opinion expressed by Seshagiri Iyer, J., in Raghavalu Chetti v. P. Sitamma 1915 27 MLJ 266 as to its possible effectiveness is supported by the observations of the Judicial Committee in Midnapore Zamindari Co. Ltd. v. Naresh Narayana Roy 1922 48 Cal 460 . In their Lordship's words it will certainly create a paramount duty on the part of the defeated claimant to displace that finding. I am therefore unable to accept the contention that the appellant ought not to have been impleaded in this suit. I would dismiss the appeal with costs.
22. The suit in the lower Court was under Section 92, Civil P.C. in connexion with a public religious trust:
(1) to remove defendant 1 from the office of trustees;
(2) to appoint a new trustee;
(3) to vest the property of the trust in the new trustee with necessary directions;
(4) to settle a scheme for the management of the trust.
23. The facts are accurately stated by the lower Court. Vasudeva Chetty died in 1875 without male heirs and in the same year his widow, Abhayambal, plaintiff 1, adopted defendant 1 Malavaperumalswamy, aged twelve. By a formal deed of adoption Abhayambal divested herself of half her husband's property in favour of defendant 1 and out of the other half set apart so much as was necessary to build a choultry for Vaishnava pilgrims declaring that the residue should be enjoyed by her for her lifetime and after her death utilised for the feeding of pilgrims using the said choultry. Krishnaswami Chetti an uncle of her deceased husband was appointed to build the choultry and to manage the property vested in defendant 1. In 1885 the choultry was opened and the land on which it stood which belonged to Krishnaswami Chetti himself was formally conveyed to defendant 1. Two years later defendant 1 had occasion to file a suit against his adoptive mother for possession of the properties vested in him by the adoption deed, and in the compromise which ended that suit, he expressly affirmed the existence of the choultry and declared that it should continue to be managed by Krishnaswami Chetti and the expenses of it defrayed out of the proceeds of such of the moveable property of the estate as had not been handed over to him (the defendant); and that after him the defendant himself should manage it. Krishnaswami Chettiar died in 1893. From 1903 onwards defendant 1 treated the choultry as his own letting it out for rent and mortgaging it. The suit is to restore the building to its original purpose to remove defendant 1 from its management and to frame a scheme for its management. Defendant 1 did not contest the suit. Defendant 2 declared that he had purchased a share in the choultry from a man who had purchased it from a son of defendant 1, a title which he did not prove, and defendant 3 is a man who has purchased the choultry in execution of a decree against defendant 1. They contended that there was no valid public trust, and if there was, the building had never been dedicated and used for the purposes of the trust. The lower Court has found that there was a validly constituted public trust, that plaintiff 1 as founder, and plaintiff 2 as founder's kin, were competent to institute a suit under Section 92, that the whole site in which the building is situated, and which was conveyed to plaintiff 1 in 1885 is the property of the trust, that the objects of the trust were carried out so far as was then possible by the construction of the choultry.
24. The findings of fact of the lower Court are clearly correct and so far as they have been appealed against the appeal must certainly fail. Undoubtedly the choultry was built out of the proceeds of property dedicated for the purpose. Undoubtedly it was used as a halting place by pilgrims up to 1903 when defendant 1 began to divert it from its proper purpose. Appellant's (defendant 3) learned Counsel argues that the lower Court was wrong in holding that the choultry was used for the purpose for which it was intended. This argument proceeds on the wrong assumption that the purpose was the feeding of pilgrims. According to the clear intention of the documents to which I have already referred the purpose was the lodging of pilgrims. Feeding of pilgrims is provided for, but is only to begin after the death of plaintiff 1 when the property in her hands, and on the profits of which she lives, becomes available for that purpose. The matter is really too clear to admit of any discussion.
25. It was also objected by the defendants after plaintiff 1 had given her evidence in the lower Court-it was taken on commission-that plaintiff 1 had not signed the plaint and so the plaint was incompetent since Section 92 requires that the suit be filed by two persons. The lower Court found that plaintiff 1 made her mark in the plaint after its contents had been read out to her. This objection is made again on appeal, but it has only to be stated to be rejected. It is founded in two isolated sentences in first plaintiff's deposition:
(i) I asked second plaintiff to file the suit...I do not know If there is anybody else as plaintiff along with him. (ii) I did not sign any paper when read out to me.
26. The second statement is literally true. Plaintiff made her mark. She did not sign the plaint. As for the first statement plaintiff 1 cannot be understood as saying that she herself was not a plaintiff along with plaintiff 2. I am surprised at such a flimsy objection being taken and more surprised at its being repeated on appeal. In the result the findings of the lower Court on the substantive part of the suit must stand and the decree, namely for the appointment of a new trustee and the framing of a scheme for management, be confirmed.
27. The lower Court directed defendants 2 and 3 to pay the costs of the suit. But they contended from the beginning that they were not necessary or proper parties. And defendant 3 in his appeal has raised the point again. At the same time it is perfectly clear that, defendant 1, being ex-parte, and after his death no person being appointed as his legal representative, it was defendants 2 and 3 who questioned the validity of the trust and the competence of the plaintiffs to file the suit. And in his appeal defendant 3 has challenged all the findings of the lower Court. The lower Court held:
Defendants 2 and 3 were impleaded because they had acquired a right to the suit properties and they were therefore necessary parties to the suit;
and this is the only question which deserves consideration in this appeal. Stated concisely it is:
Are alienees from a trustee of property belonging to the trust necessary parties or proper parties to a suit under Section 92, Civil P.C.?
28. Section 92 is:
In the case of any alleged breach of any trust created for public purposes of a charitable or religious nature, or when the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General or two or more persons having an interest in the trust may institute a suit to obtain a decree : (a) removing any trustee; (b) appointing a new trustee : (c) vesting any property in a trustee; (d) directing accounts and inquiries; (e) declaring what proportion of the trust property...shall be allocated to any particular object of the trust; (f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged; (g) setting a scheme; and (h) granting such further or other relief as the nature of the case may require.
29. In the prayer portion of their plaint, plaintiffs do not pray for any relief against defendants 2 and 3. But it is clear that they desired the Court to make a declaration that the alienations made in favour of these defendants were not binding on the trust. In para. 15 of the plaint it is averred:
Though no relief by way of recovery of possession can legally be claimed against them in this suit, still they are proper parties to this action in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.
30. And since the only question involved in the suit relating to these defendants arises out of the fact that they are in possession of trust property, denying the trust, it is implied in the sentence quoted above that the Court could grant relief against them by way of declaration that the alienations in their favour are not binding on the trust. In the result the lower Court made no such declaration. Its finding was that the choultry was a public religious trust, that the plot of land in which it stood belonged to the trust, that a new trustee should be appointed and a scheme settled. As defendant 1 died during the course of the suit it was not necessary for the Court to direct that he be removed for the reasons alleged in the plaint, but it did find that since 1903 he had been acting in violation of the trust by dealing with the pro-party as his own. There was ample material to support this finding in the acts proved against defendant 1 apart from the transactions by which defendants 2 and 3 acquired title to the property.
31. It is now settled law that no such declaration can be had in a suit under Section 92. In the Full Bench case of this Court, Venkataramana Aiyengar v. Kasturi Ranga Iyengar 1917 40 Mad 212, a representative suit to set aside a lease granted by a Devasthanam Committee to certain of the defendants, of the right to collect and appropriate offerings made by pilgrims, it was pleaded in bar that the suit should have been brought under Section 92. It was held that Section 92 does not apply to a suit the object of which is to establish that the property in the hands of strangers belongs to the trust, and to recover the same. The residuary Clause (h) 'granting such further or other relief, etc.,' does not apply; nor does Clause (c), vesting any property in a trustee,' for the reason that since the alienation is void ab initio the trustee was never divested of it. On this point of impleading strangers, alienees to a suit under Section 92, Abdur Rahim, Offg. C.J., says:
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 the one hand and third parties claiming adversely to the trust (p. 229).
32. And another of the other learned Judges (Seshagiri Ayyar, J.) who was a party to that decision says, after a minute analysis of the provisions of Section 92:
It would be doing violence to the language employed to hold that possession against strangers is within the purview of Section 92. The same observations hold good with reference to declarations.
33. And in Abdur Rahim v. Mahomed Barkat Ali 1928 55 Cal 519 where also Section 92 was pleaded in bar of a representative suit to declare the title of the trust to alienated property, and where it was contended that Sub-section (g) 'granting such further and other relief' included such cases, the Privy Council saw
no reason to consider that Section 92 was intended to enlarge the scope of Section 539 by the addition of any relief or remedy against third parties, i.e. strangers to the trust. They are aware that the Courts in India have differed considerably on the question whether third parties could or should be made parties to a suit under Section 539 of the old Code, but the general current of decisions was to the effect that even if such third parties should properly be made parties under Section 539, no relief could be granted as against them.
34. One reason why a declaration touching the title to trust properties made in a suit under Section 92 can have no binding force against the alienee defendants is obvious. Such a suit may be filed either by the Advocate-General or by any two persons having interest, who have obtained his consent. In neither case can the plaintiff or plaintiffs be presumed to have intimate knowledge of the affairs of the trust to know exactly what the properties of the trust are; or to be able to ascertain exactly the circumstances which attended the alienations they attack. If then they fail to demonstrate that the alienations are not binding on the trust, and a finding to the contrary is made in the suit, is the trust to suffer on that account Is the title of the alienees to be confirmed for all time, although a properly informed trustee with access to all the accounts of the trust might successfully impeach it in a suit framed for the purpose. To hold in that sense would be to extend the scope of Section 92 to a most undesirable extent. But if a declaration of titles against the trust is not to be binding on the trust it can hardly be binding against the alienees. The findings to the contrary in Ghazaffar Hussain Khan v. Yawar Hussain (1905) 28 All 112 and Manohari v. Mahomed Ismail (1911) 33 All 752 are not good law.
35. It is clear, therefore, that no remedy or relief can be granted in a suit under Section 92 against defendants who are impleaded on the ground that they deny the title of the trust to the properties in their possession. They are hot necessary parties to such a suit. The question remains ' Are they proper parties ?' In Collector of Poona v. Bai Chanchal Bai (1911) 35 Bom 470, it was held that
where the alienee denies that the property is a public trust for religious purposes...if that question is in controversy...it cannot be properly tried unless the alienee is before the Court. He is therefore a necessary party.
36. It might be objected, however, that neither can the question be properly tried unless the trust is properly represented and that it cannot be said that the trust is properly represented by the persons who happen to be plaintiffs under Section 92. Again while it is often desirable and sometimes necessary in a suit under Section 92 that the Court should determine what the trust properties are, are the plaintiffs, therefore, bound to seek out and implead every person who disputes the title of the trust in the case of every item of the trust property ?
37. There are two recent cases of this Court in which it has been held that persons in possession of trust property who deny the title of the trust are proper parties to a suit of this kind Venkatanarasimha Rao v. Subba Rao 1923 46 Mad 300 was a case where the endowment was by will and the endowed property was in the hands of the heir at law who ignoring the will refused to appropriate to the trust that part of the income which was designated by the testator for that purpose. At the time of the suit the executors appointed under the will were dead, and there was no trustee. The heir at law was impleaded as sole defendant and pleaded that the suit against him was not maintainable. Of the two learned Judges who decided that case Spencer, J., held that 'the person who is the heir at law and in possession of the property which is impressed with the character of trust property has an interest and is a proper party to such a suit.' And the finding of Devadoss, J., is:
No doubt the defendant in this suit could not be made to pay amounts due, or to surrender the property belonging to the trust he being a stranger to the trust.... In that sense, no doubt, the suit against the defendant is unsustainable, but the suit is perfectly competent for the purpose of enabling the Court to frame a scheme.
38. The second case is Eralappa Mudaliar v. Balakrishniah : (1927)53MLJ183 in which Venkatasubba Rao, J., as he then was, held that the suit was maintainable though the defendant was in the position of an alienee who set up a claim adverse to the trust. There was no trustee in that case and the Court found it difficult to answer the question who was to be made a defendant. The present case is stronger for the reason that the alienee defendants deny the existence of the trust altogether. On the other hand Johnson Po Min v. U Ogh 1932 10 Rang 342 where all these cases have been considered is an emphatic statement of the opposite view. Page, C.J. concludes an exhaustive review of the cases with the words:
Strangers to the trust are not proper or necessary parties to a suit under Section 92, and in such a suit the plaintiffs who have wrongly impleaded third parties cannot pray in aid the provisions of Order 1, Rule 3 or O.1, Rule 10.
39. It has been strongly contended by the learned Counsel for the respondent that the defendants not only deny the title of the trust to the choultry, claiming that it was the private property of defendant 1; but also deny the existence of the trust, and that to decide whether there is a valid trust or not it was necessary for a complete and effectual adjudication to bring these defendants on record. It has been held in Mt, Khursaidi Begum v. Secretary of State 1926 5 Pat 539, that the question whether there is a valid trust or not is not within the scope of Section 92. Per Ross, J.:
In my opinion Section 92 is not applicable. Section 92 regulates suits where there is a breach of an express or constructive trust...but here the suit is to establish the existence of the trust itself.... A suit of this nature is not within the purview of Section 92.
40. It appears to me that this is too narrow a construction of Section 92. Persons suing under that section have to establish as their cause of action (1) that there is a trust express or constructive created for public purposes of a charitable or religious nature (2) that it has been broken. In that view persons who deny the title of the trust and on that footing claim to be in possession of property which is necessary to the proper discharging of that trust are proper parties to the suit, in the sense that in their absence the Court cannot effectually and completely adjudicate the question. Is there a valid trust the performance of which requires that the trustees should be in possession and control of this property With respect I see no sufficient reason in the Patna case to justify my differing from the decision of this Court in Venkatanarasimha Rao v. Subba Rao 1923 46 Mad 300. Defendants 2 and 3 were therefore proper parties to the suit. In the result this appeal is dismissed with costs.