1. This is an appeal preferred by the plaintiff against the dismissal of her suit on the preliminary ground that it was not maintainable without the consent of the Advocate-General, as required by Section 92 of the Code of Civil. Procedure.
2. The plaintiff claims to be the rightful mutawalli of a religious and charitable endowment by virtue of a towliatnama executed by the founder, her deceased husband. The defendants, she declares, have no right whatever to interfere with the management of the trust, and are in fact, trespassers, who have wrongfully intervened, had their names registered under the Land Registration Act, 1876, in respect of the trust property and usurped the management of it. She now seeks to obtain the possession to which she claims to be entitled under the deed of endowment. She complains of no breach of trust, and she does not ask for any direction as to the administration of the trust.
3. The Subordinate Judge in the Court below has argued that the defendant now in possession is a trustee de facto if not de jure, that the suit is for his removal; and that it is one in which the direction of the Court may be necessary for the administration of the trust. He has held, therefore relying upon the decisions in Neti Rama Jogiah v. Venkatacharulu (1902) I.L.R. 26 Mad. 450 and Sajedur Raja Chowdhuri v. Gour Mohun Das Baishnav (1897) I.L.R. 24 Calc. 418 that Section 92 of the Code applies, and that the suit must be dismissed. Assuming, as we must do for the purposes of this appeal, that the defendants are what the plaintiff represents them to be, I think, that a suit, such as this, for the removal of a trespasser in possession of trust property is not a suit of the kind contemplated by the section. Nor, in my opinion, does it help the trespasser to call him a trustee de facto. A dacoit might be that, and the provision was surely never intended to protect him from being sued too readily.
4. The first ruling cited by the learned Subordinate Judge has been distinguished by this Court in Budree Das Mukim v. Chooni Lal Juhurry (1906) I.L.R. 33 Calc. 789, 807 while the second has been dissented from in the same case and also in the earlier case of Budh Singh Dadhuria v. Niradbaran Roy (1905) 2 C.L.J. 431, 439. These decisions were, no doubt, under Section 539 of the Code of 1882, and it is true that Clause (a) of Section 92, Sub-section (1) of the new Code regarding a suit to obtain a decree 'for removing any trustee,' and Sub-section (2), are new. But these additions do not, so far as I can see, alter the law on the point: and I find that in a very recent case, namely, Muhammad Abdul Majid Khan v. Ahmad Said Khan (1913) I.L.R. 35 All. 459 which was decided under the present Code, the Allahabad High Court has followed Budree Das Mukim v. Chooni Lal Johurry (1906) I.L.R. 33 Calc. 789, 807.
5. I think, therefore, that this appeal must be allowed, the decree of the learned Subordinate Judge discharged, and the suit remanded to the Court below for disposal on the merits.
6. The costs of the appeal I would make costs in the cause, and I would declare that the appellant is entitled to a certificate under Section 18 of the Court Fees Act, 1870.
7. I agree. The rule of law governing the case is explained in Budree Das Mukim v. Chooni Lal Johurri (1906) I.L.R. 33 Calc. 789, 807.