1. The Collector of Trichinopoly is the plaintiff. The suit is instituted under Sections 92 and 93 of the Civil Procedure Code.
2. The first defendant (now deceased) was the alleged trustee and manager of the charities referred to in the plaint. The second defendant was alleged to be a transferee from the first defendant of a portion of the lands appertaining to the charitable trust.
3. The prayers against the first defendant were for removal of the first defendant from the trusteeship and for accounts. There was a prayer (b) 'to declare the sale to the second defendant of the lands belonging to the charity to be invalid.' This is the only relief claimed against the second defendant. There were other prayers for the appointment of a new trustee and for vesting the trust property in the trustee as appointed. The plaintiff obtained all the reliefs asked against both the defendants in the lower Court.
4. There were appeals against this decree by each of the defendants. But the first defendant is now dead and her representatives not having been brought on the record, her appeal has abated, and has been dismissed by us. The present appeal is by the second defendant.
5. It was contended before us on behalf of the plaintiff that the second defendant's appeal must also abate, inasmuch as the first defendant who was originally a respondent to this appeal is now dead and her legal representatives have not been brought on the record as required by Order XXII.
6. In my opinion the appeal does not abate.
7. The mere fact that one of the respondents is dead and that his representative is not brought on the record, will not make the appeal abate if the right survives to the appellant. In Gopal Ganesh Abhyankar v. Ramchandra Sadashiv Sahasrabudhe 26 B. 597 : 4 Bom. L.R. 325 it was succinctly stated that when the sections of the Civil Procedure Code which are now replaced by Order XXII have to be applied to appeals, the words 'the right to sue' must be construed as meaning the right to prosecute by law, to obtain relief by means of legal procedure.' This is not expressly stated in Order XXII, Rule 11, which may be styled the interpretation clause of the order. But several rules in the order become meaningless in their application to appeals unless these words are added; and the addition of these words would follow from giving to the expression a 'right to sue' a meaning cognate to that which the rule expressly gives to the word 'suit'. Gopal Ganesh Abhyankar v. Ramchandra Sadashiv Sahasrabudhe 26 B. 597 : 4 Bom. L.R. 325 was followed in Paramen Chetty v. Sundararaja Naick 26 M. 499.
8. The relief that the second defendant claims in appeal is, first, that as he was not a necessary party to the suit, his name should be struck off from the record, and secondly, that if there was any cause of action against him it was barred by limitation, that in either case the suit should be dismissed as against him. If the second defendant is entitled to claim this relief, he is entitled to do so in his sole right. The only person against whom this relief is claimed is the plaintiff. On the death of the first defendant, the second defendant's right to claim this was not affected. A test for deciding whether the right survives was suggested by the Government Pleader, viz., whether the appellant can succeed, and the decree can be reversed, without bringing the legal representative of the deceased party on the record. This test is satisfied in the present appeal. The question on which adjudication is sought by the second defendant as appellant before us will not affect the deceased party. See Renga Srinivasa Chari v. Gnanaprakasa Mudaliar 30 Ma. 67 : 2 M.L.T. 36. An ingenious argument was put forward on this point that the lower Court's decree entitled the second defendant to sue the first defendant for damages for breach of covenant for title, if there was any such covenant, that the first defendant was consequently interested in the appeal of the second defendant. The argument does not seem to require any detailed refutation. I hold, therefore, that the appeal does not abate.
9. On the merits several questions of law were argued before us. It is necessary to deal only with the question of limitation. I am of opinion that the claim, if any, against the second defendant was barred.
10. I express no opinion on the point whether the plaintiff had any cause of action against the second defendant; but will assume that in the circumstances of this case, though the suit was brought by the Collector under Sections 92 and 93 of the Civil Procedure Code, such a declaration as is here sought by prayer (b) can be asked and obtained against a person who claims to be a transferee from the trustee.
11. It was suggested in the first instance that the Collector's right to obtain this relief (assuming it exists) is not barred, as Section 10 of the Limitation Act prevents the right to follow the trust property in the second defendant's hands from being barred by any length of time. The second defendant has been found to be an assignee for valuable consideration, and that finding has not been attacked before us. But it was argued that it has not been found that the second defendant is a transferee in good faith, and that the mere fact of his being a transferee for consideration will not make the plea of limitation available to him, unless he is also a transferee in good faith. This contention cannot be upheld. Trust property in the hands of a transferee in good faith for consideration without the notice of the trust cannot be followed by the beneficiary at all; see. Trusts Act, Section 64. The right to follow arises only where the transferee has not acted in good faith: (1) if such a transferee has paid no consideration he is not an assignee for valuable consideration within the terms of the Limitation Act, Section 10, and in his case a suit for the purpose of following trust property is not barred by any length of time. But (2) where the transferee is an assignee for valuable consideration, (a) if he has acted in good faith without having notice of the trust he acquires immediate title to the property under Section 64 of the Trusts Act, or (6) if he has not acted in good faith, but has paid valuable consideration he acquires good title after the lapse of the period necessary for extinguishing (under Section 28 of the Limitation Act) the right of the beneficiary to follow the trust property in his hands. This is in accordance with principle. When there is valuable consideration for the transfer, the original trust property is replaced by the consideration. There is no such institution when there is no consideration. No question is raised here as to the adequacy of the consideration.
12. If limitation can be pleaded then the Article applicable to the suit is Article 120. This was conceded. It was argued, however, by the learned Government Pleader that time did not begin to run from the date of the execution of the sale of the 26th of January 1899 which is alleged to have been made in breach of trust, and a declaration of the invalidity of which is sought in prayer (6) of the plaint, but that it began to run only from the time when the Collector was informed of the facts entitling him to take action under Section 92 of Civil Procedure Code. It was strenuously pressed upon us that a public officer has no duty cast upon him to go round and examine public trusts and that suits which he is entitled to institute must be allowed to be barred though he may have no knowledge of his right to sue. The Article must, however, be construed as it is, and 1 find myself unable to see how the meaning suggested by the learned Government Pleader can be read into the words 'when the right to sue accrues,' The Article must be construed as it is, notwithstanding that Article 134 prescribes a period of twelve years from the date of the purchase from the trustee when possession is sought for. If the Collector can sue under Section 92 of the Civil Procedure Code for a declaration against an alleged transferee in breach of trust (on which point I express no opinion), then the suit must, it seems to me, be brought within six years of the sale. Time began to run, therefore, on 26th January 1899, and the suit was brought more than six years thereafter. It was, in my opinion, barred by limitation.
13. The appeal will be allowed and the suit dismissed against the second defendant. The costs of both parties to the appeal in both Courts will be payable out of the trust funds, but the appellant will recover his whole costs first and the first respondent will recover his costs only oat of the balance. We are informed that some costs incurred in the lower Court have been recovered by the Collector from the appellant. These will have to be refunded to the appellant and under Section 82 of the Civil Procedure Code we specify four months from this date for this being done.
14. I agree that the appellant can obtain the relief that he seeks in this appeal without making the legal representatives of the second respondent parties.
15. In Durga Charan Sarkar v. Jotindra Mohan Tagore 27 C. 493 the test employed for ascertaining whether a particular defendant was necessary party to the suit was to see (1) whether there was a right to some relief against him in respect of the matter involved in the suit; (2) whether his presence was necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. The questions involved in an appeal do not necessarily include all the questions involved in the suit to which it is related; if we read 'appeal' wherever the word 'suit' occurs in the above passage and consider what are the reliefs asked for by the appellant in the present appeal, it will appear that he can obtain all that he wants without the presence of the first defendant or her legal representatives.
16. There has been considerable divergence of opinion in the reported decisions of Courts in India as to the scope of Section 539 (corresponding to Section 92 of the Code of 1908) before the present Code became law. Now the question as to the powers of a Court proceeding under Section 539 to remove trustees, held to be within the competence of the Court by Subbayya v. Krishna 14 Ma. 186 : 1 M.L.J. 95; Huseni Begam v. Collector of Moradabad 20 Aa. 46 : A.W.N. (1897) 210; Girdhari Lal v. Ram Lal 21 A. 200 : A.W.N. (1899) 32; Sajedur Raja Chowdhuri v. Gour Mohun Das Baishnav 24 C. 418 and held to be without the competence of the Court by Narasimha v. Ayyan Chetti 12 M. 157; Rangasami Naickan v. Varadappa Naickan 17 M. 462; Budree Das Mukim v. Chooni Lal Johurry 33 C. 789 : 10 C.W.N. 58; Budh Singh Dudhuria v. Niradbaran Roy 2 C.L.J. 431 has been settled by the Legislature introducing Clause (a) in Section 92(1). It is still a debatable question whether alienees or trespassers on trust property can be joined as parties to a suit under this section. It was held in Ghazanffar Husain Khan v. Yawar Husain 28 Aa 112 : 2 A.L.J. 591 : A.W.N. (1905) 208 that alienees could be impleaded for the purpose of determining what properties are affected by the trust and in Sajedur Raja Chowdhuri v. Gour Mohun Das Baishnav 24 C. 418 that they could be made parties for the purpose of recovering from them properties improperly alienated, but in Augustine v. Medlycott 15 M. 241; Strinivasa Ayyangar v. Strinivasa Swami 16 M. 31; Kazi Hassan v. Sagun Balkrishna 24 B. 170 : 1 Bom. L.R. 649; Huseni Begam v. Collector of Moradabad 20 A. 46 : A.W.N. (1897) 210; Arunachella Chetti v. Muthu Chettiar 17 Ind. Cas. 586 : 23 M.L.J. 347; Budree Das Mukim v. Chooni Lal Johurry 33 C. 789 : 10 C.W.N. 581; Budh Singh Dudhuria v. Niradbaran Roy 2 Cri.L.J. 431 it was decided that the section was not applicable to suits against strangers to the trust. Now assuming without accepting that the Government Pleader is correct in his contention that the object of the section as shown by the addition of Clause 2 is to protect trusts against multifarious suits, that the words of the section are very wide, that the reliefs (a) to (g) are illustrative and do not limit the grant under (h) of such further or other relief as the nature of the case may require, the plaintiff's suit must still fail as against the second defendant unless he can show that it is in time.
17. The relief asked against the second defendant is a declaration that the sale of the trust properties to him is invalid. This case can hardly be treated as a suit for recovery of possession of trust properties for which Article 134 would be appropriate.
18. It was held in Ottapurakkal Thazhate Soopi v. Cherichil Pallikkal Uppathumma 5 Ind. Cas. 698 : 33 Ma. 31 that the right to sue for a declaration that one alienation of property is invalid falls under Article 120 of the Limitation Act and accrues at the completion of the document, not when the plaintiff obtains knowledge of the alienation. The second defendant purchased under Exhibit B on 26th January 1899 and the plaint is dated 7th October 1909. Article 120 allows six years from the date of the right to sue accruing. The Sub-Judge finds that the Collector became aware of the alienation when he received the report of the Revenue Inspector, Exhibit H, dated 19th February 1905; but it appears that he was aware of some trust properties having been misappropriated and alienated when he passed the proceedings Exhibit I, dated 9th June 1899. I, therefore, consider that the relief sought against the appellant is in any case time-barred, and I agree in dismissing the suit against him with costs to be paid as directed in my learned brother's judgment.