Banerjee and Rampini, JJ.
1. Upon the first point, the contention on behalf of the appellant is twofold, viz., that Section 539 does not contemplate a suit for the removal of any trustee; nor does it contemplate a suit against a third party, the object of the Section according to the appellant being only to authorize suits for obtaining certain reliefs specified in it when such suits are not brought adversely to the trustees for the time being; and it is urged that the Section is drawn upon the lines on which the English Statute known as Sir Samuel Romilly's Act, 52 George III, cap. 101, is drawn. In support of this argument the decision of a Full Bench of the Madras Court in the case of Rangasami Naickan v. Varadappa Naickan I.L.R. 17 Mad. 462 and the cases of Sheoratan Kunwari v. Ram Pargash I.L.R. 18 All. 227 and Lakshmandas Parashram v. Ganpatrav Krishna I.L.R. 8 Bom. 365 are relied upon.
2. On the other hand it is argued on behalf of the respondents that Section, 539 is very different in its terms and in its scope from Sir Samuel Romilly's Act; and that both in this Court and in the Bombay High Court it has been held that it applies to suits brought for the removal of trustees, and also to suits brought against third parties in whose hands trust property may have passed under improper alienations by the trustee; and in support of this argument, the cases of Chintaman Bajaji Deo v. Dhondo Ganesh Dev I.L.R. 15 Bom. 612 Mohiuddin v. Sayiduddin I.L.R. 20 Cal. 810 Lutifunnissa Bibi v. Nazirun Bibi I.L.R. 11 Cal. 33 and Sajedur Rata v. Baidya Nath Deb I.L.R. 20 Cal. 397 are cited.
3. Upon the question whether Section 539 should have the limited scope contended for by the learned Vakils for the appellant, or whether it should have the wider scope that the other side contends for, the arguments on both sides have been fully set out in the judgment of Mr. Justice Shephard in Rangasami Naickan v. Varadappa Naickan I.L.R. 17 Mad. 462 and also in the judgments of Mr. Justice Muttusami Ayyar and Mr. Justice Weir in Subbayya v. Krishna I.L.R. 14 Mad. 186. We do not think it necessary to notice in detail all these arguments. It will be enough to say that though Section 539 does not expressly specify the dismissal of a trustee, or the taking possession of trust property from the hands of any third party, amongst the reliefs that are specifically mentioned, still, having regard to the fact that the cases to which the Section is made applicable are cases of alleged breach of trust, that amongst the reliefs expressly mentioned are included the appointment of new trustees under the trust and the vesting of any property in the trustees under the trust, and that these specified reliefs are followed by the general clause, 'such further or other relief as the nature of the case may require,' we think the terms of the Section include a case like the present. For the case being one of alleged breach of trust, and the Section expressly authorizing the appointment of new trustees, there can be no good reason for limiting the expression, 'appointment of new trustees' to cases of appointment of new trustees in addition to old trustees, to the exclusion of cases in which the appointment is in supersession of them. Moreover, where, as in this case, the alleged breach of trust consists mainly in improper alienations of the trust property by the trustee, the vesting of any property in the trustees to be (sic)ewly appointed, coupled with 'such further or other relief as the nature of one case may require,' may well include the taking possession of the trust property from the hands of a third party, to whom the same may be shown the have been improperly alienated.
4. We are therefore of opinion that looking to the terms of the Section, there (sic)no good reason for thinking that it should be limited in its scope in the manner contended for on behalf of the appellant.
5. But then it is further urged that if we look to the source from which this provision of the law (Section 539) is derived, we shall find that there is a reason why its scope should be limited in the manner contended for. It is said a right Section is taken from the English Statute known as Sir (sic)add that's Act. Now, although there may be some similarity between the provision Section 539 of the Code and those of Romilly's Act, a comparison of the two enactments will show that they differ in many material respects.
6. In the first place, whereas the procedure in Romilly's Act is expressly stated Ito be summary, the proceedings being initiated by a petition, the procedure under Section 539 is the ordinary procedure applicable to suits, the proceedings being initiated by a plaint.
7. In the second place, while Romilly's Act contains no qualification as to who the persons are that are authorized to file the petition therein contemplated, Section 539 expressly enacts that the persons who are authorized to institute a suit under it are persons who have an interest in the trust. It is said, that this, if not taken from the Act, is taken from decisions upon Romilly's Act. That is true. The decision from which this qualification, that the persons authorized to sue must have an interest in the trust, is taken, is that in the case of the Corporation of Ludlow v. Greenhouse 1 Bligh. N. S. 17 (66) 93; but though this one qualification is taken from that decision, other qualifications such as these---that the enactment is not to apply to cases which are brought adversely to the trustees, and that it is not to apply where any stranger is interested, which are laid down in that very case---have not been expressly incorporated in the Section. And what is the inference to be drawn from this? To our minds the inference is clear that these restrictions were not intended to be imposed upon the scope and operation of the Section. And the reason for this appears to be clear. Romilly's Act was held to be inapplicable to cases brought adversely against trustees, and to cases in which third parties were interested, because as we gather from the case of the Corporation of Ludlow v. Greenhouse 1 Bligh. N. S. 17 (66) 93 the procedure prescribed by that Act,  viz., that by petition, was considered inapplicable to cases of those descriptions.
8. Nor can we accept as correct the argument that Section 539 created a new and special jurisdiction.
9. The real object of the special provisions of Section 539 seems to us to be clear. Persons interested in any trust were, if they could all join, always competent to maintain a suit against any trustee for his removal for breach of trust; but where the joining of all of them was inconvenient or impracticable, it was considered desirable that some of them might sue without joining the others, provided they obtained the consent of the Advocate-General or of the Collector of the District; and this condition was imposed to prevent an indefinite number of reckless and harassing suits being brought against trustees by different persons interested in the trust. Where this condition is fulfilled, and the risk of harassing suits being brought against trustees is thus guarded against, there is no reason why suits brought under the Section should be restricted in any other way.
10. It is argued that if a suit under this Section is allowed to be brought agains a defaulting trustee and a third party, the suit may be open to the objection misjoinder. Where a suit under Section 539 is open to that objection, to objection will no doubt have effect given to it; but it does not follow that suit against a trustee guilty of breach of trust and a third party who he puchased any trust property from him can, in no case, be brought under the Section, even though the objection as to misjoinder does not apply. In the present case we are of opinion that no objection on the ground of misjoinder can apply, the suit so far as any such objection is concerned being properly framed within the meaning of Section 28 of the Code.
11. on Then as to the cases cited with all respected for the learned Judges who(sic)ed the case Rangasami Naickan v. Varadappa Naickan I. L. E. 17 (sic) 462 We must say that the masons given in the judgments of Mr. n the Weir and Mr. Justice Best in Subbayya v. Krishna I.L.E. 14 Mad. 52.(sic) commend (sic)ves for acceptance, and we follow the view taken by them with reference to the meaning and construction of Section 539. The case of Sheoratan Kunwari v. Ram Pargash I. L. E. 18 All. 227 does not call for any detailed examination, as the reasons for the decision that Section 539 of the Code was inapplicable to it are not set out in the judgment very explicitly. And as for the case of Lakshmandas Parashram v. Ganpatrav Krishna I.L.R. 8 Bom. 365 that case is quite distinguishable from the present, as the object of the plaintiff in that case, to use the words of the learned Chief Justice, was 'merely to recover the trust property from outsiders' whereas in the present, case the suit is brought against a trustee who is guilty of breach of trust, and I a third party is added as a defendant, because part of the trust property has passed into his hands by improper alienation from the trustee. On the other hand, the view we take is supported by the decision of the Bombay High Court in Chintaman Bajaji Dev v. Dhondo Ganesh Dev I.L.R. 15 Bom. 612 and of this Court in Mohiuddin v. Sayiduddin I.L.R. 20 Cal. 816 in which it was held that a suit for the dismissal of a trustee comes within the scope of Section 539, and also by the dicta of the learned Judges of this Court in Latifunnissa Bibi v. Nazirun Bibi I.L.R. 11 Cal. 33 and in Sajedur Baja v. Baidyanath Deb I.L.R. 20 Cal. 397 which are to the effect, that a suit brought against a trustee and a person claiming under an alienation from him comes within the scope of Section 539. We may add that the case of Sajedur Baja v. Baidyanath Deb I.L.R. (sic) Cal. 397 is of special importance, as that was a case against the present defendants with reference to this very endowment on account of the same breach of trust that is alleged in this case, the only difference between the two cases being that the plaintiffs there were different from those who have instituted this suit; and in that case the present appellant successfully contended that the suit which was for the dismissal of the trustee, and for vesting in new trustees the trust property, part of which had passed to him, was one which came within the scope of Section 539.
12. For all these reasons we are of opinion that the first contention of the appellant must fail.
13. Then as to the second, it was argued upon the authority of the case of Jan Ali v. Bam Nath Mundul I.L.R. 8 Cal. 32 that persons in the position of the plaintiffs in this case who were only entitled to worship in a public temple, are not persons having an 'interest' within the meaning of Section 539, so as to be authorized to maintain a suit under that Section.
13. It was further argued that a comparison of Section 539 of the Code with Sections 14 and 15 of Act XX of 1863 would go to show that the interest required in the first mentioned provision of law must be different from a mere right to worship.
14. Now, it should be borne in mind that under Section 539, as originally enacted, the words were 'having a direct interest in the trust,' and the word 'direct' has been taken out by Act VII of 1888. The inference, therefore, is that the Legislature intended to allow persons having the same sort of interest that is sufficient under Section 14 of Act XX of 1863 to maintain a suit under Section 539; and this change in the law is, in our opinion, sufficient to distinguish the present case from that of Jan Ali v. Bam Nath Mundul I. L. E. 8 Cal. 32 which was decided before Section 539 had been amended by the omission of the word 'direct.'
15. On the other hand, we may refer to the case of Monohar Ganesh Tambekar v. Lakhmiram Govindram I. L. E. 12 Bom. 247 to show that persons having a right to worship in a temple are within the scope of Section 539. We may add that the two plaintiffs in the present case have a somewhat larger interest than that of mere worshippers, plaintiff No. 1 alleging that he has for some time been performing some of the duties of the mohunt, and plaintiff No. 2, that he has been performing the poojah in the temple. These allegations have been supported by some evidence which is not contradicted.
16. In support of the third contention, that the consent of the Collector is not such as Section 539 contemplates, our attention has been drawn to the terms of the permission, Exhibit 7, p. 47 of the Paper Book. This is what the Deputy Commissioner, who is also the Collector, says: Assuming that petitioners are persons interested I accord my consent to the institution by them of a suit for the purpose of obtaining the relief directed in the petition.'
17. No doubt the language of this permission is in one respect not such as it ought to be. When the law directs that the consent of the Collector should be obtained as a necessary preliminary to the maintaining of a suit under Section 539, the Collector is required to exercise his judgment in the matter before giving his consent. This view is borne out by the observations of Lord Eldon in Ex parte Skinner (2 Mer., 453). But though the consent of the Collector is thus defective in language in this one respect, we do not think that the defect is fatal to the case. The Collector in giving his consent Has to exercise his judgment in the matter, and see, not only whether the persons suing are persons who have an interest in the trust, but also whether the trust is a public trust of the kind contemplated by the Section, and whether there are prima facie grounds for thinking that there has been a breach of trust; and, as was pointed out in the course of the argument, there is nothing to show that the Collector has not exercised his judgment as to the last two points. It is only in regard to one matter, namely, that relating to the interest of the petitioners in the trust that the language-of the permission may be taken to indicate that the Collector did not exercise his judgment. Though that is so, we think it is after all an irregularity in an order which the law requires should form a necessary preliminary to the institution of a suit, and such an irregularity in our opinion comes within the scope of Section 578 which protects judgments and decrees from interference in appeal on mere technical grounds.
18. The next point for consideration is whether the suit is barred by limitation. As against defendant No. 1, no question of limitation can arise, the suit coming within the scope of Section 10 of the Limitation Act; and as against defendant No. 2, the provision of the Limitation Act applicable is, we think, Article 134 of the second schedule. It was urged for the appellant that that article does not apply to this suit, as it is not a suit for possession; that the article applicable is 120; and that as the suit has been brought more than six years after the date of the latest of the alienations in favour of defendant No. 2, it is barred notwithstanding that it is brought within twelve years from the date of the earliest alienation.
19. Article 120 can apply only if Article 134 is not applicable to the case. The question, therefore, is whether the suit can be treated as one for possession within the meaning of Article 134. That article provides for suits to recover possession of immoveable property conveyed or bequeathed in trust or mortgage and afterwards purchased from the trustee or mortgagee for a valuable consideration. The limitation is twelve years, and it runs from the date of the purchase.
20. The fifth prayer in the plaint is, 'that the property may be taken from the possession of the defendants and delivered to the possession and custody of the person who may be appointed mohunt and trustee for the management of the idol's properties; 'and Section 539, as we have already observed, does contemplate a suit of this nature as coming within its scope.
21. That being so, we do not think that it would be any undue straining of language to say that a suit for such a purpose is a suit to recover possession of property which had been bequeathed in trust and afterwards purchased from the trustee. Article 134 therefore applies to this suit, and it is not barred by limitation.
22. The grounds urged before us therefore all fail and the appeal must be dismissed with costs.