1. This is a suit brought by the two plaintiffs with leave under Order I, Rule 8 of the Code of Civil Procedure, 1908, as representing themselves and other tambirans and disciples of the suit mutt, to declare certain alienations made by the mahant invalid and have the property alienated handed over to the mahant, the 1st defendant. The mahant having 'died during the pendency of the suit and been succeeded by the 1st plaintiff, the plaint was amended accordingly and now prays for possession to be given to the 1st plaintiff.
2. The Subordinate Judge has held that mutt properties as such are not trust properties and that consequently the suit is not barred under Section 92, Civil Procedure Code, but he has also held that the plaintiffs are not entitled to sue for possession to be given to the 1st defendant and that the suit must be treated as one for a declaration and is barred under Article 120 of the Limitation Act.
3. If the suit properties were held by the Pandara Sannadhi on trust, I think the Subordinate Judge was wrong in holding that the claim for possession was not maintainable and that the suit was barred under Article 12 of the Limitation Act.
4. As regards the first point it seems to me that the present suit, which is brought on behalf of all the beneficiaries, stands in some respects on the same footing as an information filed by the Attorney-General in England on the information of relators to recover charitable property improperly alienated by the trustees. This was the regular method of recovering charity property improperly alienated, and it has been explained that in such a proceeding the beneficiaries are the persons on whose behalf the information is brought and that the function of the Attorney-General representing the Crown as parens patriae is simply to bring the case to the attention of the Court and ask it to provide for the due execution of the trust by securing for it the properties that belong to it On such information the Court of Chancery recovered the property so alienated by cancelling the conveyance and directing possession to be given up to the trustees, who ex hypothesi did not formally occupy the position of Plaintiffs in the suit, St. Mary Magdalen, Oxford v. Attorney. General (1857) 6 H. L. O. 189. Attorney General v. Flint (1844) 4 Hare. 147. and in the former case, it was hold that the claim for relief was barred by limitation in the same manner as if the beneficiaries on whose behalf the information was filed had them selves been plaintiffs.
5. The case was argued on the footing that the mahant was in the position of a trustee. If this be so, there is no reason why the plaintiffs should not be treated in this country as performing the same function as the Attorney. General on in information and asking the Court to undertake the execution of the trust, and to recover possession of the suit properties which have been improperly alienated, such possession being given to the trustee as the person entitled to it on behalf of the institution. But, even if the mahant be not in the position of a trustee, a question it is un-necessary to consider, I think that the plaintiffs, as held Arunachellam Chettiar v. Velappa Thambiran 28 Ind. Cas. 337., have sufficient interest in the institution to entitle them in India to sue under Order I, Rule 8, Civil Procedure Code in respect of an alleged wrongful alienation of mutt property, and that, if they are allowed to sue, there is no sufficient reason under our procedure for not granting them their full relief by ordering the property to be delivered to the present mahant or to a Receiver.
6. As regards limitation, if the plaintiffs have a right to sue, it arose at the time of the alienation or later, and is not barred under Article 144 or under Article 134, if that is the Article applicable, and I think the possession of the alienee must be regarded as adverse to the institution and to the plaintiffs who claim on its behalf. I would, therefore, reverse the decree and remand the suit for disposal according to law.
Seshagiri Aiyar, J.
7. The properties in suit wire purchased by a Pandara Sannadhi of the Dharmapuram Adhesnam in the year 1869. Another Pandara Sannadhi sold them to the various contesting defendants in July 1901. The plaintiffs are the tambirans of the mutt. They obtained leave under Order I, Rule 8 of the Code of Civil Procedure, 1908, to institute a suit on behalf of all the persons interested in the mutt. Their case was that the properties belonged to the mutt, and that their alienation in 1901 was invalid. They prayed for a declaration that the alienation was not binding on the mutt and for possession being delivered to the 1st defendant, who was at the time of the suit the Pandara Sannadhi. Since then, the 1st defendant has died and the 1st plaintiff has succeeded him in the office. The plaint was thereafter amended to the effect that the 1st plaintiff should be given possession on behalf of the mutt. There has been some dispute as to the scope of this amendment and of the undertaking given by the plaintiffs at the time. Although the language of the petition for amendment is not very clear, it seems to me that all that was agreed upon was that the parties should proceed on the footing that the name of the 1st plaintiff was to be substituted for that of the deceased 1st defendant.
8. The alienee defendants raised various pleas. The Subordinate Judge disposed of the case on the pleadings. His conclusions were that the plaintiffs were not entitled to sue for possession, that they were not competent to ask that possession should be given to the 1st defendant and that the suit was barfed by limitation. These findings were given on issues Nos. 1, 9 and 16 and the suit was dismissed. The plaintiffs have appealed.
9. The question which was debated with great ability at the Bar mainly related to the right of the plaintiffs to ask for possession in favour of the 1st defendant, the head of the mutt.
10. The plaintiffs by obtaining the leave already referred to represent the whole body of the worshippers. They may be said to be the beneficiaries. There is no doubt that the legal owner of the properties is the Pandara Sannadhi. Ordinarily he alone could sue for their possession add for other reliefs in respect of them. The general right of the beneficiaries is to see that there is ho violation of the trust, and, if the trustee does not discharge his duties properly, to apply for his removal and for the appointment of a new trustee. These are the ordinary remedies; but circumstances may arise which may estop the trustee from suing to recover possession, and the beneficiaries may not desire that he should be removed from his office. In such cases, it is in the interests of the mutt that the cestui que trustent should have the right to move the Court to deprive the wrong doer of his possession and to vest it in the trustee.
11. The authorities in England, as I shall show presently, have recognised this right. The principle upon which the English Courts have acted is that 'it is a rule inequity which admits of no exception that a Court of Equity never wants a trustee.' Once the Court is apprised that there has been a violation of the trust, it acts on the maxim that a trust shall never fail for want of a trustee. It is obvious that such a resort to the extraordinary powers of the Court should be made under exceptional circumstances. The authorities have laid down the limitations under which alone the beneficiaries would be permitted to sue for possession; but the rule stands good that under proper safeguards, the cestui que trustent have the right to invoke the aid of the Court to deprive the trespasser of his wrongful possession and to vest possession in the trustee.
12. Both the learned Advocate-General and Mr. T. Rangachariar relied upon Sections 59 and 63 of the Indian Trusts Act. These provisions only relate to private trusts, but the underlying principles are applicable to public and charitable 'trusts as well. Section 59 of the Trusts Act lays down that where for any other reason, the execution of a trust by a trustee is impracticable, the beneficiary may institute a suit for the execution of the trust.' An inadvertant ratification by the trustee in office of an alienation by his predecessor would be covered by clause, 'the execution of the trust by a trustee is impracticable.' This would let in the beneficiary. No doubt, he can only claim that the trust should be executed. That is to say he can ask that the trust be administered. It would be in the discretion of the Court when it is seized of the trust either to direct the existing trustee to carry out the terms, or to appoint a new trustee in that behalf, or to entrust the management to an interim Receiver. By giving any of these directions, the Court would be executing the trust. There is no machinery in this country for the Court itself administering to its fullest extent the trust until the objects of the trust and the fund are exhausted. Consequently, the Court often appoints a Receiver until the right to the trusteeship is settled. Section 63 is a very important provision. Mr. T. Rangachariar contended that this section expressly limits the right of the beneficiary to a bare declaration, and that consequently he is not entitled to ask for possession. I do not think that the word declaration should be given such a narrow interpretation. Even in a suit for possession, there must be an antecedent declaration. I am inclined to think that the Legislature did not intend to prevent a beneficiary from suing for possession in favour of the trustee. The beneficiary is only entitled to a declaration in his own right, but that would not prevent him from asking that the declaration be followed up by giving possession to the trustee. However that may be, Section 63 is not in terms applicable to charitable trusts and consequently its language is not conclusive of the rights of a public trustee. If this section is read along with Section 10 of the Limitation Act, it is clear that wherever trust property has gone into the hands of a stranger, the beneficiary can take all the necessary steps to place it in the hands of a person who can legally administer the trust.
13. As regards decided cases, the learned Vakil for the appellant relied strongly on Sharpe v. San Paulo Railway Go. (1873) 8 Ch. App. 597. It was decided in 1873. The decision was that individual beneficiaries were not entitled to claim, their share of a debt from the debtor. Lord Justice James pointed out that a bare allegation 'that the trustee would not sue' cannot give a right of action to the beneficiary. Then the remedies open under such circumstances are pointed out. This is not a pronouncement that where a trustee could not sue (not would not sue) the beneficiaries are not entitled to claim that possession should be given to him. The same learned Lord Justice a few months later held that a beneficiary can sue for an injunction that a contract of the trustee should not be completed, Dance v. Goldingham (1878) 8 Ch. App. 902. If a claim for an injunction is competent, I fail to see why a suit for possession should not lie. The decision in Gandy v. Gandy (1885) 30 Ch. D. 57. is exactly in point. In that case, the trustees refused to be made co-plaintiffs with the beneficiaries. Lord Justice Cotton negatived the contention that the only remedy possessed by the beneficiaries is to sue for the removal of the trustee and said that where a covenant is entered into with one person for the benefit of another, then, if the covenantee will not sue, the person beneficially interested may sue in equity'. Lindley, L. J., and Bowen, L.J., concurred in this view. Yeatman v. Yeatman (1878) 7 Ch. D. 210. and Beningfield v. Baxter (1887) 12 A. C. 167. are to the same effect. See also observation's of Lord Hobhouse in Hiddingh v. DeVilliers Denyssen (1887) 12 A. C. 624. The latest case on the subject is Meldrum v. Scorer (1887) 56 L. T. 471. Mr. Justice Kay reviewed all the earlier authorities and said: 'Therefore, in this case, I have first to see whether there are real grounds for the trustee not suing. I have to ascertain whether there has been simply a refusal on his part or whether it is a case in which the circumstances are such as to render it an inconvenient or ineffectual course that he should sue' It is dear from this dictum that it is a question in each case whether the beneficiary should be allowed to ask for the reliefs which prima facie should be claimed only by the trustee. The learned Advocate-General drew our attention to the nature of the relief claimed by the beneficiaries in Consett v. Bell (1842) 1 Y. & C. C. C. 569., as showing that a claim that the trustee should be put in possession is within their rights. In none of the above cases was any decree passed giving the trustee possession at once. That is so, because the Chancery Court itself administered the estate and was not overanxious to part with its control over the trust. The peculiar jurisdiction exercised by the Court of Chancery is thus stated by Wilmot, C.J., in Attorney-General v. Lady Downing (1967) Wilm. 1. 'The person who creates a trust, means it should at all events be executed. The individuals named as trustees are only the nominal instruments to execute that intention, and if they fail, either by death, or being under disability to act or refusing to act, the constitution has provided a trustee.... Where no trustees are appointed at all, this Court assumes the office.... There is some personality in every choice of trustees...and if the trust cannot be executed through the medium which was in the primary view of the testator, it must be executed through the medium, which the Constitution has substituted in its place.' The same conditions do not apply in India, although the Courts here have the same general right of supervision over trusts and trustees. In Perry on Trusts, after examining the English and the American authorities, the law is thus summarised: 'If a cestui que trust desires to bring a suit against a stranger, he should apply to the trustee to allow his name to be used as co-plaintiff, and the trustee is bound to comply, on being indemnified against the costs. If the trustee refuses improperly, he may be made a defendant'. This is exactly what has been done in the present case.
14. As regards Indian decisions Sajedur Raja Chowdhuri v. Gour Mohun Das Baishnav 12 Ind. Dec.946. is directly in point. In Madras, it was held in Padmanabha Chettiar v. Williams 10 M. L. J. 10. that the proper procedure is to apply either for the removal of the trustee or to have a Receiver appointed. It does not appear whether in that case possession was asked to be given to the trustee. The same remarks apply to Kamaraju v. Asanali Sheriff 23 M. 99: 8 Ind. Dec. (N. S.) 463. There is an observation in this case that if a representative suit were brought, the result might be different. I do not think that these two oases have laid down anything more than that a few among the beneficiaries are not entitled to sue for possession being given to themselves on behalf of the trust. If they negative the right of the beneficiaries under certain circumstances, to ask for possession being given to the trustee-defendant, I respectfully decline to accept them as good law. The decision in Ellisheri Edathil v. Pothera Kulloor 26 Ind. Cas. 946. does not affect the present ease. To that case, the trustee was not a party nor did the plaintiffs ask that possession should be given to them. On the other band' Subramania Aiyar v. Nagarathna Naicker 5 Ind. Cas. 900. is in point. In a later case, Subramanian Chettyar v. Rajak Rajeswara Dorai 2 Ind. Cas. 968. after full argument on the question, the right of the beneficiary to claim that possession should be given to the trustee was expressly upheld. When the case was taken before the Judicial Committee in Subramanian Chettiar v. Rajeswara Dorai 32 Ind. Cas. 258: 19 M. L. T. 150. the eminent equity lawyer who appeared for the appellant apparently did not consider the question arguable, Although Miyaji v. Sheik Ahmed Sahib 18 M. L. J. 205. proceeds on the construction of Section 14 of Act XX of 1863, the judgment shows that where a trustee is made a defendant, possession can be given to him in a case instituted by the beneficiaries. I am, therefore, of opinion that the Subordinate Judge is wrong in his view that under no circumstances can the beneficiaries sue that possession should be given to the lawful trustee.
15. On the question of limitation, Mr. Rangachariar contended that Article 120 of the Limitation Act applies to the case. I am unable to agree. It may be that before Article 134 of the Limitation Act is held applicable, more facts and more of the history of the institution of which the plaintiffs are the disciples may have to be ascertained. The allegations in the plaint state that the properties in suit appertain to the trust. The learned Advocate General argued that the words 'bequeathed in trust' contemplate an original entrustment and that if the properties can be shown to have been acquired from the income of the trust property, the acquisitions would be included in it. There is great force in this contention. It is not necessary to decide this question at this stage of the case, nor the other question whether a Madathipathi is not a trustee. In my opinion Article 144 of the Limitation Act directly applies to this case. The suit is for possession of immoveable property and consequently the first column applies. The learned Vakil for the appellant contended that the third column is inapplicable, as the possession of the alienees is not adverse to the plaintiffs, the beneficiaries, but only to the trustee. Authorities were quoted to show that the beneficiaries have not the same character as the trustees. I do not think it necessary to pronounce any opinion on this question, as the word plaintiff in column 3 would include the beneficiary plaintiff according to the definition of that expression in the Limitation Act.
16. The beneficiaries sue only in the right of the trustees. They are only the aliases for the trustees. Under the Common Law of England, the beneficiaries were compellable to use the name of the trustee as plaintiff. Consequently the beneficiaries derive their right to sue through the trustee. It is his action that they are prosecuting. In this view, what is adverse to the trustee is also adverse to the persons who derive their right to sue through him. Article 144, therefore, applies and there is no necessity for seeking the aid of the residuary Article 120 in this case. The suit is not barred by limitation.
17. Another aspect of the question of limitation relates to the character in which the trustee held the properties. The dictum of Miller, J., in Muthusamier v. Sree Sree Methanithi Swamiyar Avergal 19 Ind. Cas. 694. that the alienation may be binding on the alienating trustee during his lifetime opens up a question which requires investigation. The learned Judge, as I understand him, did not lay down that such a proposition is applicable to all trust properties. It may be that his view may have to be re-considered after the facts have been ascertained. At this stage, I do not think it advisable to say more on that question.
18. For the above reasons, I would reverse the judgment of the Subordinate Judge and remand the case to him for disposal. Costs will abide the result.