N.R. Chatterjea and Walmsley, JJ.
1. This appeal arises out of a suit for a declaration that the plaintiff was legally appointed superintendent of a charitable and religious endowment, that his dismissal by the defendants Nos. 1 to 5, the trustees of the endowment, and the appointment of the defendant No. 6 as superintendent by the said defendants 1 to 5 were illegal and wrongful, for reinstatement of the plaintiff in his post as superintendent, and for perpetual injunction restraining the defendants from interfering with the rights and privileges of such superintendent, as provided in the deed of trust and for other reliefs.
2. The defence of the defendants Nos.1 to 5, inter alia, was that the plaintiff was appointed to act as superintendent on September 6, 1908, until further orders, and subsequently on September 7, 1908,. the plaintiff was directed to furnish security to the extent of Rs. 5,000 at an early date which he failed to do. The defendants charged the plaintiff with various acts of negligence and misconduct in the management of the trust estate, stated that his dismissal was imperatively called for, and pleaded that under the terms of the trust deed they had full powers to appoint and dismiss the superintendent. The case having come on for settlement of issues, the defendants contended before the Court below that, assuming the truth of the facts as stated in the plaint, there was no case for the issue of an injunction. The Court below held that the suit as framed for an injunction could not be maintained, that it was unnecessary to try the question whether the plaintiff's dismissal from service was wrongful or without any just cause, and that no issues need be framed for trial, and accordingly dismissed the suit. The plaintiff has appealed to this Court.
3. The Court then proceeded to deal with the terms of the deed, as set out above, and continued:
4. It appears that the defendants Nos. 1 to 5 were appointed trustees, and the founder himself acted as superintendent during his life. In the Court below It was contended on behalf of the plaintiff that the superintendent's service was one during good behaviour and that it amounted in its nature to a service for life. In this Court it has been argued that under the arpannama there was a trust created in favour of the superintendent, and that the trustees have no power to dismiss him. The question for decision therefore is whether there was merely a contractual relation between the superintendent and the trustees on whether there was a trust created in his favour.
5. It has been contended on behalf of the appellant, having regard to the facts that the superintendent is to be the secretary and 'executive hand' of the trust committee, that the zemindari amlas are to work under the direct control of the superintendent, that the superintendent is to have charge of all monies and accounts, that he is to manage the trust properties subject to the control of the trust committee, that in case of emergency he has the power to convene an extraordinary meeting of the trust committee and at the close of every meeting he is to pay the fee and conveyance charges of each of the trustees present, that the name of the superintendent is to be registered in the Collectorate as superintendent of 'Brij Bhukan Ista-Parta Fund,' under the Land Registration Act, and that the donor himself was the superintendent during his life, that there is a trust created in favour of the superintendent and that he cannot be dismissed from office by the trustees when there is no provision in the deed for his dismissal. It was argued that the superintendent was a part of the trust corporation and not a servant of the trustees. And in support of the contention, that where there is a trust in favour of an officer of a trust corporation, the Court will interpose in a case of dismissal of such officer, reliance was placed on the cases of Dean v. Bennett (1870) L.R. 6. Ch. App. 489 Daugars v. Rivas (1859) 28 Beav. 233 and Wills v. Childe (1850) 13 Beav. 117 and Tudor on Charities 4th edition pp. 221-222.
6. In the case Dean v. Bennett (1870) L.R. 6 Ch. App. 489 the deed of settlement of a chapel provided for the mode of dismissal of the minister, and the Court interposed, as those provisions were not complied with in dismissing him.
7. In Daugars v. Rivaz (1859) 28 Beav. 233 the French Protestant Church in London was founded in 1550 by Letters Patent of the Crown. The pastor, when elected, was presented to and approved and instituted by, the Crown. The governing body had, apart from the charter of incorporation, funds impressed with a trust in favour of the pastor. It was held that the Court, notwithstanding the rights of the Crown as visitor, had jurisdiction to see to the performance of the trust and to determine on the validity of the dismissal, and the Court, having come to the conclusion that it was not justifiable, granted an injunction to restrain the governing body from hindering the pastor in the exercise of his office. That case is distinguishable, as there were funds impressed with a trust in favour of the pastor.
8. In the case of Wills v. Childe (1850) 13 Beav. 117 where a scheme provided that the trustees 'shall have authority from time to time upon such grounds as they shall at their discretion in the due exercise and execution of the powers and trusts reposed in them deem just from time to time' to remove the master of a grammar school, it was held that a trust was created, and that an improper removal of a master would be restrained by injunction.
9. These cases show that where the relation of trustees and cestui que trust exists between a corporation and one of its officers, the Court will interpose to prevent a breach of trust. On the other hand in the case of Attorney-General v. Magdalen College Oxford (1847) 10 Beav. 402 it was held that if, upon the true construction of the statutes of foundation, the schoolmasters and usher were officers appointed by the college or other corporation and the duty of appointing them was not otherwise annexed to the mere property of the college than by the obligation to pay certain annual sums of money and was not of the nature of a trust but an obligation, the observance of which, according to the statutes of the founder, was to be regulated and enforced by the visitor, then the breach of duty whatever it may be, ought to be redressed by the visitor and not by the Court. In the case of Whiston v. Dean and Chapter of the Cathedral Church of Rochester (1849) 7 Hare 532 the master of a grammar school appointed by the Dean and Chapter of a Cathedral Church, which grammar school was, by the statutes imposed by the founder, directed to be established and maintained from the endowments of such church, was held not to be a cestui que trust of the stipend and emolument of the office, but to be only an officer of the Cathedral Church, appointed to perform one of the duties imposed upon it by the statutes. The Vice-Chancellor in delivering judgment observed: 'For the purpose of the argument the founder is considered as saying that there shall be certain funds and certain officers payable out of those funds, such as a school master, choristers and others who shall fill various offices and perform various duties. All these persons apparently fall within the same category in point of description, although they are unequally paid, and their duties are not of equal importance. Unless it is to be argued that the janitor, for instance, on being discharged, may come to this Court and allege a trust in his favour and call upon the Court to decree accordingly, it may be difficult to say that the master, if he be within the same category has a right to come to the Court and allege such a trust.' And after examining the cases and statutes the Vice-Chancellor said: 'I cannot discover a ground for holding that the master is a cestui que trust of the Cathedral Church only because he receives a stipend payable out of the common funds of the defendants, which would not equally oblige me to hold that every officer mentioned in the statutes, to whom a livery and a stipend are given, is also a cestui que trust. The case of The Attorney-General v. Magdalen College Oxford (1847) 10 Beav. 402 is a direct authority in point; and I am satisfied on that authority.'
10. The question depends upon the statute or the deed creating the foundation, and we have to see whether in the present case the arpannama creates any trust in favour of the superintendent. The superintendent, no doubt, is to be the secretary and the executive hand of the trust committee, but he is to follow the orders and directions of the trust committee. He is to submit accounts to the committee, and he is to manage the trust property subject to control of the trust committee. The trustees have the power of appointing all officers of the endowment, including the superintendent after the death of the founder. It was contended, however, on behalf of the appellant that because a person is appointed or elected to his office by another, it does not follow that he can be removed from his office by the other, and the cases of ministers of the church appointed or elected were referred to by way of illustration. The power of appointment, we think, ordinarily involves a power of dismissal, unless there is anything special in the nature of the office, or the deed or statute under which a person is appointed shows the contrary. The case of ministers of the church is a special one, as all persons presented to ecclesiastical benefices are considered to be tenants for their own lives, unless the contrary is expressed in the form of donation: see Tudor on Charities, 4th edition, p. 338.
11. It was next contended that the position of the superintendent is analogous to that of a shebait or a mutwali, and reference was made to the cases of Nanabhai v. Shriman Goswami Girdhariji (1888) I.L.R. 12 Bom. 331 Goswami Shri Girdharji v. Madhowdas Premji (1893) I.L.R. 17 Bom. 600 and Gulam Hussain v. Ali Ajam (1868) 4. Mad. H.C. 40. In the first two cases it appears that the succession to the office of the high priest was governed by the custom of primogeniture obtaining in his family, and the plaintiff (the high priest who was deposed from office and deported by the Rana of Udaipur within whose territories he resided.) was held entitled to possession of that portion of the dedicated property which was at Poona, because if he was owner he had not lost his rights by the Rana's act, as the order could not affect property at Poona beyond his jurisdiction, and if he was a trustee he had not been removed by any competent tribunal. In the third case it was held that the rule of Mahomedan law that a mutwali or superintendent of an endowment is removable for mismanagement does not apply to the case of a trustee who has an hereditary proprietary right vested in him. The case of Gajapati v. Bhagawan Doss (1891) I.L.R. 15 Mad. 64 was also relied upon. There in a suit by the representative of the founder to remove the defendant from the headship of a muth it appeared that the usage was for the head of the institution for the time being to nominate his successor, and for the representative of the founder to sanction the nomination and invest the nomine with a sadi on his installation, and that the defendant had asked the plaintiff to appoint him and had undertaken on his appointment to furnish him with accounts of the income and expenditure of the muth. It was held that the plaintiff was not entitled to remove the defendant from office on the ground of his refusals to furnish accounts. But it was found in that case that the power of appointment which the representatives of the founder had was a limited one, and did not involve the power of dismissal. They had merely a power of the choice of a successor from among the chelas of the last head of the muth, made by the head for the time being, and, according to the usages of the institution, the defendant was under no legal obligation to render accounts to the plaintiff. These cases, therefore, do not apply to the present case, and we do not think the office of a shebait or mutwali has any analogy to the office of the superintendent in the present case.
12. Under paragraph 19 of the arpannama, the trustees have the power of causing the name of every superintendent to be registered as a manager of the endowed properties and 'Brij Bhukan Ista-Purta Fund' by expunging the name of the proceeding superintendent. Under Section 3(6) of Act VII of 1876 B.C. 'manager' means (among other persons) a person in charge of an estate on behalf of a religious or charitable foundation. We think the superintendent being the secretary of the trustees, who are to be five in number, his name for the sake of convenience is directed to be registered as manager. That does not show that there was any trust in his favour; on the other hand, the power of expunging the name of the preceding, superintendent shows, by implication, that the trustees have the power of removing him from his office. It was contended on behalf of the appellant that if that paragraph were to be construed as giving a power to the trustees to Remove a superintendent, they had equally the power to remove the founder himself who acted as superintendent during his life, and if that paragraph did not authorise his removal, it did not authorise the removal of any other succeeding superintendent. But the case of the founder himself as superintendent stands on a different footing from that of superintendents appointed by the trustees after his death. The founder had not only the right of nominating and appointing the five trustees but he had the right of nominating and appointing some other fit person to fill up a vacancy caused by the death, resignation, misconduct or non-attendance of the said trustees. It cannot be held that the trustees had the power of removing the founder acting as superintendent, when the founder had the power of removing the trustees themselves for misconduct or non-attendance. But the succeeding superintendents have no such power; they are to get certain remuneration and to perform certain duties; the superintendent is mentioned in paragraph. 17 of the deed where the trustees are given the power of appointing all officers of the endowment. We have already said the power of appointing ordinarily involves a power of dismissal, and it would be unreasonable to hold that although the trustees who have the charge of the whole endowment and its properties themselves can be removed for misconduct or for acting in contravention of the provisions of the deed of trust, by a suit in the Civil Court, with the sanction of the Advocate-General as provided in the deed, the superintendent, who is subordinate and accountable to the trustees, cannot be removed and is to hold office for life. We think there is no express provision for removal of the superintendent, because he is a servant of the institution. Generally speaking, a servant is one who for consideration agrees to work subject to orders of another. A secretary is also a servant, and although the duties of the superintendent are certainly of a lighter order than the other officers, we think, taking all the provisions of the arpannama into consideration, that there is no trust created in favour of the superintendent, and that there is only a contractual relation between him and the trustees. Now a contract of service may be determined by the master and the only remedy for a wrongful dismissal would be by an action for damages. Suppose the plaintiff refused to serve the defendants, the defendants surely could not compel him to serve them. If the trustees cannot prevent the plaintiff from resigning, he can have no right to compel the trustees to keep him. An agreement to serve cannot be specifically enforced.
13. The relation established by the contract of hiring and service is of so personal and confidential a character that it is evident that such contracts cannot be specifically enforced by the Court against an unwilling party with any hope of ultimate and real success, and accordingly the Court refuses to entertain jurisdiction with regard to them:' see Fry on Specific Performance of Contracts, 5th edition, page 51. Section. 54, in Chapter X of the Specific Relief Act, provides theft subject to the other provisions contained in or referred to by that chapter a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant whether expressly or by implication, and that when such obligation arises from contract, the Court shall be guided by the Rules and Provisions contained in Chapter II of the Act, and Section 21(6) in Chapter II of the Act provides that a contract which runs into such minute or numerous details, or which is so dependent on the personal qualifications or volitions of the parties, or otherwise from its nature is such that the Court cannot enforce specific performance of its material terms, cannot be specifically enforced. Section 56 in Chapter X of that Act lays down that an injunction cannot be granted to prevent the breach of contract, the performance of which would not be specifically enforced. The trustees have to supervise the acts of the superintendents, but if the trustees have lost all confidence in the superintendent, it is not possible for them to supervise his acts, if he is forced upon them. We need not discuss the question at length, because once it is found that there is no trust in favour of the plaintiff, we think there can be no doubt that a suit for injunction cannot be maintained. The learned Counsel on behalf of the appellant did not dispute the proposition that, if the superintendent was merely a servant, he could be dismissed. It was contended, however, that the case could not be disposed of merely on a consideration of the question whether an injunction could be granted: there has been no consideration whether, in fact, there had been a proper removal of the plaintiff from the office of superintendent; there is nothing to show that there was any meeting of the committee in which the question of removal of the plaintiff was discussed and in fact no evidence has been taken in the case. But even assuming that he had been wrongly dismissed, the only remedy, as we have already stated, is by an action for damages, and the Court cannot compel the trustees to reinstate the superintendent in his office if he was merely a servant.
14. Lastly, it was contended that the plaintiff was entitled, at any rate, to a finding that the appointment of defendant No. 6 as superintendent was illegal. But if the plaintiff was merely a servant, he Lad no locus standi to question the validity of the appointment of defendant No. 6. He is the son-in-law of the founder, but he is not his heir. He would, therefore, have no right to question the appointment of defendant No. 6 even if it were a private endowment. It is a trust for public purposes, and assuming, for the sake of argument, that a suit could be maintained for the purpose, it is not one under Section 92 of the Code of; Civil Procedure.
15. Under the circumstances, we are of opinion that the decree of the Court below is right, and the appeal must be dismissed with costs.