P.C. Mallick, J.
1. This is a representative suit instituted by the plaintiff for self and other members of the Hindu community interested in the trust created by the Will of Akshoy Kumar Ghosh deceased. The defendants Nos. 1 and 2 Hem Chandra Dey and Protap Narayan Bose were impleaded on the allegation that they were purporting to act as executors and trustees. Defendant no. 3 is Ashutosh Coomar in whose favour a lease was granted of one of the trust properties. The defendants Nos. 5 and 6 Prosanno Kumar and Hemanta Kumar are stated to be the heirs of the settlor along with the plaintiff. The defendant No. 4 is the deity. During the pendency of this suit the defendants Hem Chandra and Basanta died and their heirsand legal representatives have been substituted in their place and stead.
2. The nature of the suit will appear from the reliefs claimed. There are averments in the plaint in support of the reliefs. The title of the defendants Hem Chandra and Protap Narayan to act as trustees has been challenged. So also the lease has been challenged inter alia on the ground that the grantors were not properly appointed executors and trustees and were not competent in law to grant the tease. The executors and trustees have been alleged to, be guilty of various acts of mismanagement and breaches of trust. The allegations challenging the validity of the appointment of trustees have been introduced by way of amendment. The raliefs claimed are:-
(b) Declaration that the defendants Nos. 1 and 2 Hem Chandra Dey since deceased and Protap Narayan Bose are not properly appointed trustee and shebait.
(c) An injunction restraining the defendants Nos. 1 and 2 Hem Chandra Dey since deceased and Protap Narayan Bose from acting as such alleged trustee and shebait or in any way intermeddling with the said estate of Akshoy Kumar Ghose deceased,
(d) Removal of the defendants Nos. 1 and 2 Hem Chandra Dey since deceased and Protap Narayan Bose from acting as such trustee and shebait and appointment of new trustee or trustees and/or shebaits.
(e) Construction of the Will of Akshoy Kumar Ghose dated 21st May, 1918, and framing of a proper scheme.
(f) An account of the dealings of the defendants Nos. 1 and 2 Hem Chandra Dey since deceased and Protap Narayan Bose with the income of the trust property and payment of the amount to be found due upon the taking of such accounts to the new trustee or trustees and shebait or she-baits.
(f)(i) That the Indenture of lease dated the 10th December, 1946, mentioned in the plaint be adjudged void.
(g) That the said Indenture of lease be delivered up and cancelled.
(h) An injunction restraining the defendant No. 3 his servants and/or agents from dismantling and/or demolishing and/or removing the existing structure at premises No. 141, Cornwallis Street in Calcutta belonging to the said trust estate and/or erecting any new structure thereon.
(i) Delivery of possession of premises No. 141, Cornwallis Street in Calcutta by the defendant No. 3 to the new trustee or trustees and shebait or shebaits.
(j) Rs. 35,700/- as loss and/or damages against the defendants Hem Chandra Dey since deceased and Protap Narayan Bose the defendants No. 1 and/or 2 as in paragraph 6 hereof payable to the new trustee or trustees and shebait or shebaits.
(k) If necessary, an enquiry into the said loss and/or damages and decree for the sum found due against the defendants Hem Chandra Dey since deceased and Protap Narayan Bose the defendantsNo. 1 and/or 2 payable to the new trustee or trustees and shebait or shebaits. (1) Further or other reliefs.
3. In the written statement filed by the different defendants all allegations of mismanagement and breaches of trust have been denied. The allegations challenging the validity of the appointment of trustees have also been denied. It is alleged that the appointments were matte pursuant to the order of the District Judge, 24 Perganrias in proper proceedings in that behalf and the said orders are still there and have not been set aside. It is contended that in consequence the beneficiaries under the trust must be deemed to have ratified the appointment and the irregularity, if any, in the appointment of executors has been Cured. It is pleaded that the suit is not maintainable by reason of the provisions of Section 92 of the Code of Civil Procedure. It is further pleaded that the suit is, in any event, barred by limitation.
4. After the case was opened and issues settled, I was invited by the parties to decide two issues by way of preliminary issues. They are:-
1. Is the suit maintainable having regard to the provisions of Section 92 of the Code of Civil Procedure.
2. Has the defendant No. 3 been properly joined as defendant?
5. These two issues were disposed of by my judgment delivered on February 3, 1960. In my judgment I held that though some of the reliefs claimed in the suit Cannot be obtained except in a suit under Section 92, the suit as a whole was not liable to be dismissed on the ground that it has not been instituted in conformity with the provisions of Section 92 of the Code of Civil Procedure. I held that the reliefs (d), (e) and (f) cannot be agitated in this suit but that the suit will proceed in respect to the other reliefs. In the plaint two reliefs are numbered as (f), I have taken the second (f) as (f(i)).
6. The suit has now come up for final disposal. The plaintiff tendered his own evidence. The defendant Ashutosh Kumar tendered his own evidence. No other witness was called to tender evidence. The documents disclosed by the parties and included in the brief of Documents have been marked as exhibit, parties having agreed that formal evidence in proof of the documents be dispensed with. Some other documents namely, Court proceedings and returns filed before the Income Tax authorities have also been tendered in evidence, Those are all the evidence on record.
7. The suit as framed purports to establish the right of the Hindu community interested in the trust to get certain declarations, injunction as also possession. There is a claim for damages as well. The plaintiff Sarat Chandra Mitra claims to have a further interest in the trust as one of the heirs of the settlor. He along with the other heirs claim shebaiti right. The plaint does faintly indicate an intention on the part of the plaintiff to agitate his private right as well in this suit to be appointed a shebait. This case is indicated in paragraph 7 of the plaint and for this purpose defendants Nos. 5 and 6 alleged to be other heirs of the settlor were impleaded as defendants. In the written statement an objection was taken, that there are other heirs of the settlor having equal right and the suit is bad for non-joinder of those heirs having equal right. In a suit for framing a scheme of a trust partly debutter and partly charitable, all the shebaits might properly be necessary parties. One of the reliefs claimed in this suit is the framing of a scheme. Without deciding the question whether in a suit instituted in a representative capacity in respect to a trust partly public and partly private, both public and private right could be agitated, I gave opportunity to the plainttiff to add, it he is so advised, the heirs left out. No such application for addition of parties, however, was made. Further, by my judgment on the preliminary issues I have held that no scheme can be framed as prayed in this suit. It follows that the suit which will now proceed with respect to the remainder, i.e., the remaining reliefs which are in respect to a public trust only. I make it clear that the right claimed by the plaintiff as shebait is not being determined in this suit and his private right as such shebait, if any, is not being affected by this judgment.
8. Two broad questions have to be decided in this suit, namely, (1) the title of the defendants 1 and 2 Hem Chandra Dey and Protap Narayan Bose to act as trustees and (2) the legality and the binding nature of the lease of December 10, 1946.
9. Taking the first question first, namely, whether the defendants Nos. 1 and 2 are properly appointed trustees. The provisions in the Will as to the appointment of trustees are in the following terms:-
'In case of death or retirement of any of the executors and trustees or shebaits the surviving trustee or trustees shall appoint another competent person as a trustee in the place of the deceased trustee or trustees so retiring and such newly appointed trustees shall be vested with the trust and estate along with the then existing trusees and have all the rights and powers which the trustee in whose place he is so appointed had at the time of his death or retirement but under no circumstances the number of trustees shall be less than two for 3 consecutive months, provided however if the number of trustees falls short of the requisite number hereinbefore mentioned and if no appointment of a new trustee is made within the period aforesaid from the date of the death or retirement of any of the trustees. or in case all the executors and trustees herein named and hereby appointed renounce executorship and do not apply for probate of this Will within 8 months from the date of my death then and in any of such events happening the Official Trustee of Bengal shall become the executor and trustee of this my Will and sole trustee of the said debutter and charitable institution to be created and established as aforesaid in which case my heir or heirs for the time being shall be the shebait and perform the religious trusts only and he or they shall perform and carry out such trusts under the supervision of the said Official Trustee for the time being the said Official Trustee pay the amounts payable under this Will to the said shebait for the time being for expenses in connection with the religious trust only.'
10. It is clear that according to the above provisions (1) the powers to appoint new executor or trustee in place of the deceased or retiring trustees have been given to the remaining executor and trustees, (2) in no circumstances the number of trustees would be less than two for three consecutive months, (3) if there is no requisite minimum for more than three months due to failure in making appointment and if all the executors renounce executorship and do not apply for probate within eight months from the date of death, the Official Trustee shall become executor and sole trustee. In such event the heirs of the settlor will act as she-bait and perform the religious trust only under the supervision of the Official Trustee.
11. The case made in the plaint is that there were three executors and trustees named in the Will, namely, (1) Sureswari, the widow of the testator. (2) Sitanath Bose and (3) Sisir Kumar Bose, Sureswari died before probate was granted to the two remaining executors Sitanath and Sisir on August 28, 1920. Sitanath died on July 10, 1932, and on the application of Sisir the District Judge, Alipore, appointed Phani Bhusan Ghose as executor. If we ignore for the moment the procedure adopted and consider the application of Sisir and the order of the District Judge as an act of appointment we may treat the appointment to be a valid appointment having regard to the fact that it was done within three months. The number of trustees was not less than two for more than three consecutive months. The provisions in the Will may therefore be said to have been complied with. On June 2, 1940, Sisir died and not before September 4, 1940, did Phani apply to the District Judge for the appointment of Hem Chandra Dey as executor on which am order was made on September 9, 1940. Even. if we take this application of Phani Ghose the surviving executor to be an act of appointment of a new trustee, it was done more than three months after the death of Sisir. It is really three months and two days. There was thus less than two executors and trustees for more than three consecutive months. It is, therefore, contended that the appointment of Hem Chandra has not been made in terms of the Will and as such his title to be appointed a trustee is defective. The argument is that on September 2, 1940, there were less than two trustees for more than three consecutive months and in terms of the Will, they ipso facto vacated office and the Official Trustee became automatically trustee on and from the expiry of three months i.e., September 2, 1940. It has not been as indeed it cannot be disputed that Hem Chandra's appointment was not made before September 4, 1940 and that Sisir being one of the two executors hitherto appointed and functioning as such died on June 2, 1940. Mr. Sambhu Ghose appearing on behalf of the defendant Pratap Narayan conceded that there has been two days delay only in the matter of appointment and the question is whether this delay for two days should upset the apple cart and invalidate all acts done by persons appointed as such by orders of the Court on September 9, 1940, and after. Phani died on April 19, 1944, and Hem Chandra purporting to be the sole surviving trustee made an application to the District Judge, 24 Pergan-nas for the appointment of Pratap Narayan Bose as an executor and trustee. This application was madewithin three months of the death of Phani Bhusan, If however the appointment of Hem Chandra, is held to be invalid then he would have no power to appoint an executor or trustees in terms of the Will. This application of Hem Chandra was rejected by S. N. Guha Ray the then District Judge, 24 Pergannas, with the following observation:-
'The testator can alone appoint an executor, This Court therefore has no jurisdiction to appoint an executor. The prayer therefore cannot be allowed. As regards the appointment of a trustee, I find this power was conferred by the Will on the surviving trustees who may accordingly do so without tile intervention of the Court, If any part of the testator's estate if still unadministered, the person who wants to administer it should apply for letters of administration de bonk non if advised to do so.'
12. Probate of the Will was granted to the named executors on August 18, 1920, and after the grant the probate proceedings came to an end, It is strange that applications were made in a dead proceeding for the appointment of executors and the Court passed orders apointing executors. At long last on July 23, 1949, Sri S. N. Guha Ray the then District Judge pointed out the illegality and recorded very correctly in the Order Sheet that the Court had no jurisdiction to make appointment of executors by order in this fashion and that the correct and legal way to have the estate left unadministered to be administered is to apply for the grant of letters of Administration de bonis non. The orders of appointments of both Phani Ghose and Hem Chandra, as executors are illegal and without jurisdiction. Protap Narayan was never appointed executor. I hold that the District Judge of 24 Pergannahs after the grant of probate on August 28, 1920, had no further power in the said proceedings to appoint any executors and the orders appointing Phani Ghose and Hem Chandra were without jurisdiction and must be held to be nullities. The appointments cannot be upheld on the strength of the orders passed by the District Judge. The orders were not merely irregular orders but orders passed wholly without jurisdiction. No party can set up any right or title as executor on such orders passed without jurisdiction. It is without force at any time and it was or is not necessary to set it aside.
13. It has to be considered then whether the appointment of Phani Ghose, Hem Chandra Dey and Protap Narayan Bose, can be otherwise supported. The first thing to remember is that though the executors are also trustees and stated as such in the testamentary instrument, the executors administered the estate so long as the estate remained unadministered and if there is a trust Created by the Will, they functioned as such trustees only after the estate is fully administered. It is only after the executor realised the assets, pays the funeral expenses and debts of the testator and then pays the legatees that they are required to make over the residue to the residuary legatee. It is only then administration is said to be complete. Even if the executor does not in fact make over the estate to the residuary legatees, after payment of the funeral expenses, debts and other legacies, he is deemed in law to hold this residue in trust for the residuary legatees and the administration is deemed to be complete. (See Snell's Equity 22nd Ed. p. 269 under the heading 'Distribution of Assets'). If there is some express trust created by the Will, and the executors are also made express trustees of the trust, it is only after the estate is fully ad-ministered that they would be trustees simpliciter and no longer executors. In such event they would no longer be bound and governed by the provisions of the Indian Succession Act, In the instant Will there is a trust created and the executors have been directed to establish and consecrate an image of Annapurna Devi and start a charitable institution for feeding the poor Hindus. This appears not to have been done by the named executors. The Order Sheet in the probate proceedings indicate that the estate was under administration till July 23, 1949. It follows that till, then the estate was under administration and as such there could not be any appointment of trustees simpliciter in the manner indicated in the testamentary instrument. Further the Will provides that there should be a minimum of two executors and trustees to carry on the administration, though for the maximum period of three months a single executor and trustee has been empowered to act. Sisir died on June 2, 1940, and no appointment was made by the surviving executor till September 4, 1940, i.e. for more than three months by two days. In terms ot the provisions of the Will, after September 2, 1940, i. e. three months after the death of Sisir the administration came to a standstill., It follows that when Phani Bhusan purported to make the appointment of Hem Chandra Dey, he alone had no power to appoint. The appointment of Hem Chandra Dey as executor and trustee must therefore be held to be contrary to the provisions of the Will and as such invalid. The same would be the consequence if we proceed on the footing that administration has been completed and the executors, and trustees were functioning as trustees simpliciter. The trustees are no longer executors and their functioning must be regulated by the provisions of the trust. Three months after the death of Sisir on June 2, 1940, there was not the minimum of two trustees and one trustee was unable to act without the minimum number. The instrument indicates that in such event the Official Trustee will become the trustee Mr. Chaudhuri submitted that in the event of there not being the minimum for more than three months, the solitary trustee was not merely unable to function but ipso facto vacates his office and the Official Trustee steps into his shoes. This would operate as a discharge of the surviving trustee under Section 71(c) of the Official Trustees Act. It is however argued against this contention that the Official Trustee suffers from the disability to become a trustee of the instant trust under Section 7(5) of the Official Trustees Act. Section 7(5) of the Official Trustees Act reads as follows:-
'The Official Trustee shall not save as provided in the Rules made under this Act accept any trust for religious purposes.....'
The testamentary instrument in suit provides that in certain contingencies -- one of them being when there is less than the minimum number of two trustees for three consecutive months 'the Official Trustee of Bengal shall become the executor and trustee Of this my Will and the sole trustee of the debutter and charitable institution to be created and established as aforesaid in which case my heir or heirs for the time being shall be shebait and perform the religious trust only and he or they shall perform and carry out such trust under thesupervision of the said Official Trustee for the time being, the said Official Trustee pay the amounts payable under tilts Will to the said she-baits for the time being for expenses in connection with the religious trust only.'
14. It seems to me that the provisions of the religious part of the trust being performed by the heirs of the settlor, takes the instant case out of the provisions of Section 7(5) of the Official Trustees Act and the said section is no impediment to the Official Trustee acting as trustee in the instant case. I do nothowever base my decision on this argument.
15. Even if it is held that Section 7(5) operatesas a bar to the Official Trustee in acting as trusteeunder the instant trust, less than two trustees are incompetent in terms of the instrument to exercise the function of trustee for a period more than three months and as such Phani Ghose alone was competent in law to appoint Hem Chandra' as trustee. If Hem Chandra Dey's appointment was illegal, he could not have appointed Protap Narayan Bose as trustee after the death of Phani on April 19, 1949.
16. For reasons given above I hold that neither Hem Chandra nor Protap Narayan was properly appointed trustee.
17. A point is raised that even if Hem Chandra Dey was not properly appointed nevertheless he acted as such from September 1940, till the date of the institution of this suit in August 1953, i. e. for a period of more than 12 years. He was in possession of the trust properties as such trustee openly as of right, adversely to the true trustee and as such his title to be in possession as trustee is cured by adverse possession. Hem Chandra is now dead and the question whether his defective title is cured by adverse possession is only of academic importance. Had the lease been granted after Hem Chandra had perfected his possessory title by adverse possession, the question would have been important. The lease was admittedly granted in 1949 when Hem Chandra had not been, in possession for 12 years. It is not necessary, therefore, for the purposes of this suit to discuss this question interesting though it is. Mr. Sambhu Ghose the learned counsel appearing for Protap Narayan Bose attempted to argue that his client also perfected his title by adverse possession. His possession cannot be before July 13, 1949, when he was appointed i. e., a little more than four years before the institution of the suit. But it is contended by Mr. Sambhu Ghose that Pratap Narayan is entitled to tack the possession of Hem Chandra and the two taken together would exceed the statutory period of 12 years. The point, however, has not been taken in the written statement and no issue has been raised. I do not think therefore Mr. Ghose is entitled tomake that case now at this argument stage. I hold that so far as Hem Chandra is concerned, it is unnecessary to decide whether he had possessory title even though he had no legal title. Pratap Narayan is not entitled to set up the case of adversepossession. I am not considering the question of limitation now.
18. The plaintiff seeks in the suit an adjudication that the lease of the trust property is void, for cancellation of the instrument, for injunction in a limited form against the defendant lessee and for possession of the demised premises. The lessors are Phani Bhusan Ghose and Hem Chandra Dey and they have been described in the instrument as 'executors to the estate of Akshoy Kumar Ghose'. The lease is for a period of 50 years. Rs. 20,000/- is alleged to have been paid as premimum by a cheque dated December 10, 1946, and Rs. 5,000/- is alleged to have been paid in cash, These payments are recorded in the lease itself. Such is also the evidence of the defendant Ashutosh Coomar. This Rs. 5,000/- is the agreed price of the materials of the structure which the lessee would be entitled to demolish and appropriate the building materials so demolished. The rent reserved is at the rate of Rs. 150/- per month for the first five years and thereafter at the rate of Rs. 250/-per month. The lessee is under an obligation to construct a building on the demised land at a cost of Rs. 30,000/. within ten years from the date of the commencement of the lease. The reason and necessity of granting this long lease is set out in the recitals. It is recited that for meeting the funeral expenses, Adya Sradh, the cost of obtaining probate etc. and effecting repairs of some of the properties, the two named executors, namely, Sitanath and Sisir, incurred certain debts. It is recited that further debts were contracted by Phani Bhusan and Hem Chandra, the subsequent trustees, to meet the costs of litigation for ejecting certain tenants and to make certain additions and alterations and repairs of premises No. 85/1-A, Grey Street. The lease recites the order of the District Judge dated September 28, 1942, to raise a loan of Rs. 10,000/- on mortgage of premises No. 141/1, Cornwallis Street and further recites that pursuant to the order, equitable mortgage of premises No. 141/1, Cornwallis Street was effected. The name of the mortgagee is not stated. The deed recites that the executors incurred further debts in carrying out the repairs of 85/1 Grey Street and borrowed Rs. 10,000/- from one Gadadhar De. It appears from the Order Sheet that an application for permission to raise a loan of Rs. 10,000/- by mortgaging premises No. 141/1, Cornwallis Street was made by Phani Bhusan and Hem Chandra as executors and such permission was granted by the order dated September 28, 1942, The order reads as follows:-
The permission applied for on 31-7-42 is granted on condition that proofs and accounts are filed by 1st April, 1948, shows the purchase and improvement to the estate, and on the distinct understanding that the surplus income after carrying out the trust will go first to repayment of the loan now being raised.
I notice that misadministration has been going on since 1918, the reason being that a trust was created by the Will in favour of certain persons as 'executor and trustees'. In my opinion the administrator ought not to go on indefinitely. The executor should formally hand over to themselves and trustees and shebaits and terminate the administration. It is submitted that this cannot be done until the debts incurred by the executors as such are paid off, since they are personally liable for them. It is expected under the scheme now sanctioned to pay them off in five years. The question of terminating the administration should be considered then.'
It appears that proof of accounts not having been filed, the permission granted on September 28, 1942, was revoked by the order No. 76 passed by the District Judge on June 24, 1943. There does not appear from the Order Sheet anything to indicate that the two original grantees of probate, namely, Sitanath and Sisir. contracted debts or that subsequently Phani and Hem Chandra contracted debts as stated in the recitals or obtained permission therefor from the District Judge. It does not appear that any permission was either asked for or granted to Create the lease in suit. The lessee defendant Ashutosh Kumar gave evidence. He stated that he was approached by Phani Bhusan and Hem Chandra to advance money on a mortgage. There was already a mortgage subsisting in favour of Gadadhar De. The witness was shown the accounts from which it appeared that a large sum of money was due to Gadadhar De. The letter of demand sent by Gadadhar De was also shown to him. He was shown Corporation dues amounting to about Rs. 2,000/- which were outstanding. He refused to advance money on a mortgage but offered to take a long lease, to which Phani Bhusan and Hem Chandra agreed. Apart from the enquiry made by him he caused enquiries to be made by his solicitor. He did not know whether his attorney Mr. Haldar made any requisition on title in respect to the property. The witness left the entire matter to his attorney Mr. Haldar. Mr. Haldar, however, did not tender evidence in this case nor has the requisition on title, if any, made by Mr. Haldar been tendered in evidence before me. The witness further deposed that from local enquiries and himself being a resident nearby, he came to know as a fact that Phani Bhusan and Hem Chandra were trustees. He was pointedly asked that they have been described in the deed as executors to the estate of Akshoy Kumar Ghose and not trustees. His answer is that his lawyers can answer it. His attorney Mr. J. R. Haldar prepared the lease. The witness admitted that some records of the Alipore Court were produced. The original records of the Alipore Court were shown to him. He could not remember whether he saw them before. He did not know whether his solicitor inspected those records. He admits that a few Certified copies of the records of the Alipore Court were shown to him and he could not remember whether in those copies Phani Bhusan and Hem Chandra were described as executors and trustees. He could not say whether the facts stated in the lease were correct or not. The preparation of the lease was left to his solicitor Mr, J. R. Haldar, on whom he had confidence. He did not know law. He simply signed the lease. Mr. J. R. Haldar, his attorney, was in Court when the witness was deposing in this case. After obtaining the lease, the witness stated that he instituted proceedings in ejectment, some of which came up to the High Court. There were several suits andproceedings against him in respect to the property. The house was in a bad condition. He had to repair it immediately after taking the lease. It was suggested to him that at the time when the lease was granted there were 14 tenants and the total rent payable per month was Rs. 600/-. He did not agree. According to the witness, there were 10 tenants in the ground floor and some on the top, but tenants in the top did not pay any rent. The witness disputed that the rent payable was Rs. 600/- per month. His answer is: 'It cannotbe so, because the Corporation taxes were Rs. 90/-quarterly. If the tax be Rs. 90/- the rent could not be more than Rs. 350/-; that is common knowledge.' The books of account and rent counterfoil books have not been disclosed to show what amount of rent Ashutosh actually realised from the tenants after he came in as lessee.
19. This is the only evidence in support of the case made by Ashutosh Kumar. It is impossible to hold, on the basis of this evidence, that there was legal necessity or that the lessee made the proper enquiries to be satisfied that the grantors had title to grant the lease, that there was necessity for a lease for a long term, that the recitals in the lease were correct, that the terms of the lease were for the benefit of the trust. The evidence of Ashutosh Kumar was very unsatisfactory. The evidence of Mr. J. R. Haldar, the attorney should have been tendered and the documentary evidence of the actual collections of rent at the time when the lease was granted should also have been produced. These, in my judgment, should have been tendered in order to substantiate the case made in the written statement. There is not enough evidence to substantiate the case made in the written statement or to corroborate the recitals in the lease. The case of legal necessity or enquiry as to the existence of legal necessity or such pressure to the estate as would justify alienation has not been proved to my satisfaction, nor has it been proved that the lease was for the benefit of the estate.
20. I am, however, apt to think that the existence of facts which may amount to legal necessity is in law wholly immaterial for the purpose of the case. If the grantor had no title to the property, a lease cannot be held to be valid and binding, it there were facts which amount to legal necessity in law. Nor can the grantee claim protection it he made enquiries as to the existence of legal necessity. Since, however, the issue has been raised and evidence led. I record my view on it The lessee may perhaps be entitled to be reimbursed of the money actually spent for the benefit of the estate. There is no pleading, however, of how much money the lessee actually spent for the benefit of the estate, nor is there sufficient or any evidence at all on this point. There is no evidence that the total sum of Rs. 25,000/-a'lleged to have been paid to Phani Bhusan and Hem Chandra by the lessee was utilised by them for any purpose of the estate. There is no evidence that it was utilised for paying off the mortgage in favour of Gadadhar De or for any other purpose of the estate. It is doubtful whether the mortgage, the permission of which was subsequently revoked, should be said to be a binding mort-gage on the estate. The only evidence is the bare statement of Ashutosh Kumar that he spent money for repairs. He does, not say how much, nor does he tender dependable evidence as to the amount actually spent by him., The same is the case with respect to the litigation expenses alleged to have been incurred for the benefit of the estate. There is no evidence, except the bare statement of Ashutosh, that he initiated ejectment proceedings against some tenants. Not even the names of the tenants of the Cause Title of the proceedings have been given. On the other hand, ever since Ashutosh Kumar has been inducted as a lessee in 1949, he has been receiving rents from the tenants. This certainty is not a small sum. As against the money alleged to have been spent for the benefit of the estate, the money realised by him as rent must be set off in order to ascertain the net benefit to the estate. There is no evidence either way. As stated before, in the absence of clear pleading and absence of evidence, there Cannot be any finding on this point in favour of Ashutosh. The Case of legal necessity or benefit of the estate set up in the written statement of defendant Ashutosh Kumar must, therefore, be rejected.
21. The question now to be considered is --Had the grantors any title to grant the lease? The grantors are Phani Bhusan and Hem Chandra. They purport to grant the lease as executors to the estate of Akshoy Kumar Ghosh, In evidence it is sought to be made out that they granted lease as trustees. Qua executors were the grantors competent to grant the lease? I have held that of the executors Hem Chandra's appointment was defective in law and Hem Chandra cannot be held to have been properly appointed as executor. Assuming for the moment that the other executor was properly appointed by Sisir in 1932 after the death of Sitanath, the position is that the lease was granted by one executor long after the expiration of three months from June 2, 1940, when the second executor died. Is this permissible under the Will? The Will expressly provides the minimum of two to perform the acts as executors and trustees. The only exception is that when the number is reduced to less than two due to the death and retirement, the surviving executor is given liberty to act alone for the maximum period of three months. The language used by the testator is: 'Under no circumstances the number of trustees shall be less than two.' In tile context, the word 'trustee' may mean 'executor and trustee'. On the other hand, the clause may be construed as a disability imposed on the trustees, after the administration is completed, to act jointly with a minimum of two and this provision in the Will will not be operative till the administration is completed, and the estate is held by the trustees to carry out the purpose of the trust. The act of granting a lease by Phani Bhusan alone may be legal, if in law he was the sole executor at the material time of granting the lease, having regard to the fact that there was no express prohibition to sell, mortgage or grant a long lease. Section 307(2) of the Indian Succession Act entitles the executor to grant a lease without the sanction of the Court, unless there is restriction imposed in the Will in that behalf. Nor is it imperative in law for the executor to obtain grant, before he can deal' with or dispose of the property. (See Sir Md. Yusuf v. Hargovandas, ILR 47 Bom 231 at p. 237 : (AIR 1922 Bom 392 at p. 394) and Gana-pathi Iyer v. Sivamalai, ILR 36 Mad 575). If therefore, Phani Bhusan was the sole executor in law and the provision in the Will as to quorum of two does not apply to executors but to trustees only, then Phani Bhusan would alone be entitled to make a valid grant, even though he did not obtain probate and even though he did not obtain the sanction of the Court. (See Succession Act, Section 311 and the Illustrations).
22. I am, however, apt to think that the quorum clause in the Will is not merely applicable to the trustees but to executors as well, In any event, the testator intended that the executors would hold the properties as trustees after the funeral expensesand debts are paid off. Apart from the deity and the charity, the only other, beneficiary is Sureswari, the widow, who is given an allowance of Rs. 50/-per month for support and maintenance during her natural life. Sureswari died sometime after the death of the testator in 1918 but before the grant of probate on August 28, 1920. It appears from the affidavit of assets that the debts of the testator amount to Rs. 5457/-. There is no clear evidence that all the debts have been paid off. But I find in the Order Sheet that on August 5, 1942, an application was made for raising a loan of Rs. 10,000/- by mortgaging premises No. 141/1 Cornwallis Street and it appears from the order passed thereon and set out before that the loan was proposed to be taken for the purpose of effecting improvement of the estate and not for liquidating the debts set out in the affidavit of assets. It may, therefore, be presumed that by this time the debts as stated in the affidavit of assets had been paid off; otherwise, the purpose of the loan would have been, at least in part, for the payment of debts. Nor should it be forgotten that there was a substantial income from the tenants from 1920 onwards and it is reasonable to presume that out of the income the debts have been paid off. The accounts filed by the executors have not been tendered in evidence before me from which it would have appeared whether the debts have been in fact paid off or not. Nevertheless, having regard to the facts stated above, it may safely be held that long before 1949, the debts of the estate had been paid off. I, therefore, hold that at the time when the lease was granted, all the debts were paid off, including the debts for performing the Adya Sradh. None of the debts stated in the affidavit of assets were subsisting in 1949. The only other legatee, namely Sureswari, having died in 1942, the estate was there exclusively for the purpose of the trust and was being administered by the executors as trustees. In that view of the matter, the quorum or the minimum clause would be operative. I have heldthat Hem Chandra Dey was not properly appointed in terms of the Will. In my judgment, even it Phani Bhusan was properly appointed, the grant of lease by Phani Bhusan alone in 1949 was not in consonance with the provisions of the Will and as such must be held to be invalid in law. This, I hold, has no reference to the question that the Official Trustee became ipso facto a trustee three months after the death of Sisir on June 2, 1940.
23. It has been contended by Mr. Sambhu Ghosh on behalf of the defendant Pradip Narayan that even if it is held that the appointment of Hem Chandra and Protap Narayan is invalid and the Court declares the appointment to be invalid, the Court is not competent to issue an injunction as prayed in prayer (c) of the plaint. The reason andvanced by Mr. Ghose is that the prayer for declaration as to the invalidity of the appointment coupled with injunction as claimed will make the suit, in substance, a suit for removal of the trustee and as such hit by section 92 of the Code of Civil Procedure. It is next argued that if no injunction, as prayed for in prayer (c) can be granted, on the ground stated above, it becomes a suit for mere declaration without consequential relief and as such hit by Section 42 of the Specific Relief Act. I am unable to accept this argument. Even if the present suit be treated as a suit for removal of the trustee, it is not hit by Section 92 of the Code. In order to attract the provisions of Section 92 of the Code, the suit must be founded on a breach of trust. The material allegation in a suit to attract the provisions of Section 92 is that there is a breach of an express trust. When the material allegation in the plaint, on which the cause of action is based, is that the appointment of trustee is invalid, the case is outside Section 92 of the Code of Civil Procedure. In my judgment, on the preliminary issues referred to before, I have held that prayers (b) and (c) are not hit by the provisions of Section 92 of the Code. Nor can Section 42 of the Specific Relief Act be invoked to defeat the claim of the plaintiffs in paragraphs (b) and (c). Apart from the fact that prayer (c) is the proper relief to be granted in aid of the declaratory relief, the argument of Mr. Ghosh must fail on the ground that the instant suit is not a suit under Section 42 of the Specific Relief Act. It is not a suit instituted by the plaintiff for a declaration of his own right to property or his right to a legal character. This is a suit, on the other hand, to challenge the defendants' pretensions to a legal character and to right to property. Such a suit does not come under Section 42 of the Specific Relief Act. It is, therefore, useless for Mr. Ghosh to invoke the provisions of Section 42 of the Specific Relief Act to defeat the plaintiff's claim to prayer (b), in the absence of injunction. In my judgment, once it is found that the defendants Hem Chandra and Pradip Narayan have no title to act as trustees and a declaration is made to that effect, the Court must grant an injunction as well, even though the effect of the decree amounts to a removal of the trustee. I may note that Mr. Ghosh cited a number of authorities in support of his argument. Tn the view I have taken, I do not think it necessary to discuss them.
24. Mr. R. N. Mitter appearing for the lesseecontended that in any event the suit as againstthe lessee is time-barred. It is a suit either forcancellation, of the lease or for a declaration thatthe lease is void. Appropriate Article applicableto a suit for cancellation of an instrument is Article 91. The Article, however, only applies whenthe instrument is required to be set aside by the Court. In other words the Article does not apply when the instrument is void ab initio but is voidable and is required to be set aside. The plaintiff's case is that the grantors had no title to grant the lease and the lease is, therefore, ab initio void. Further, the Article only applies when the plaintiff is a party to the instrument. In the instant case, the plaintiff, even as the representative of all the beneficiaries, cannot be said to be a party to the lease Article 91, therefore, can hardly apply. Mr. Mitter, therefore, argues that no other Article being applicable the residuary Article, viz., Article 120, will apply. The right to apply on the part of the plaintiff as beneficiaries accrued on the date of the lease on December 10, 1946 and this suit has been instituted in August, 1953,--beyond' six years. The suit is, therefore, time-barred. If there is no other Article of the Limitation Act applicable to this case, then Mr. Mitter's argument must be upheld and the suit as against the lessee must be dismissed, on the finding that Article 120 will govern the case and the cause of action has accrued more than six years before the institution of the suit. Mr. B. K. Chaudhuri, learned counsel appearing for the plaintiff, however, contends that the appropriate Article applicable: to this case is Article 134 A of the Limitation Act. The demised premises is admittedly comprised within a Hindu religious and charitable endowment. The lease has been executed by persons who purported to act as executors and trustees of the endowed property and were actually managing the property. The suit, however, is not a suit to set aside the lease but is a suit for a declaration that the lease is void. The case of Subramania Ayyar v. Maya Kone decided by Patanjali Sastri, J. of the Madras High Court and reported in AIR 1940 Mad 81 was a case in which the plaintiff instituted a representative suit on behalf of the villagers for a declaration that the suit property belongs to the temple of Veerabhadra Swami of the village, that a sub-mortgage effected by the Pujari was void and not binding on the institution, for injunction and other consequential reliefs. It was not a suit for setting aside the transaction but a suit for a declaration that the transaction was void and injunction was prayed. The point of limitation was taken and the learned Judge proceeded to decide the question of limitation on the basis that Article 134 A is applicable. This decision, therefore, is an authority for the proposition that Article 134 A includes not only suits 'to set aside a transfer' but also suits for a declaration that the transfer is void and injunction. In other words, the learned Judge must have proceeded on the footing that a suit for a declaration that a transaction is Void and injunction is substantially a suit to set aside a transaction. Relying on this authority Mr. Chaudhuri contended that this Article covers a suit by the beneficiaries for a declaration that an alienation of the property belonging to the endowment by a manager or a trustee of the endowment is void. The alienation may be challenged either in the form of 'setting aside the transaction' or in the form of a declaration that itis void. The form of challenge is immaterial and Article 134 A of 'the Limitation Act is intended to cover both classes of cases in which the alienation is challenged. In the instant case, the suit having been instituted within 12 years of the transfer, if Article 134 A applies, the suit must be held to be well within the period of limitation. Mr. Mitter contended that Article 134 A only applies to voidable transactions and not to transactions void ab initio. He relied on the wording of Article 134 A and compared' the language used with the language used in Section 10. The words used in Article 134A are--'to set aside a transfer ... .. .. made by a manager'. A transactionwhich is void ab initio need not be set aside. This according to Mr. Mitter, clearly indicates that the Article was intended to apply only to voidable transactions and not to transactions void ab initio. The Article was intended to be applied only to cases of alienation by a shebait or Mohunt of a debutter property or of such alienation by a wakif of wakf property without legal necessity. These transfers by a shebait are not ab initio void but voidable only at the instance of a party interested.I think, however, that the new Articles in the Limitation Act, namely, Article134 A, B and C were introduced by the amendment of 1929 to protect the title of religious and charitable endowments in endowed properties and the Legislature intended that the words should be liberally construed. The words used are 'to set aside a transaction'. It is possible to give a restricted meaning to the phrase and construe the Article in such a restricted fashion as to limit its scope to cases of alienation not initially void but only voidable and which would be valid if not avoided by an order or degree of the Court. It is 'also possible to give a generous and extended interpretation so as to cover not merely' above cases but also cases inwhich the transaction is challenged on the ground that it is void having been made by one without authority and the challenge is made in the form ofdeclaration that it is void. Patanjali Sastri, J. in above case is apt to think that a suit for declaration that the transaction is void and injunction is in substance a suit for setting aside the transaction and is coverded by Article 134A. If the limited construction is adopted, then the Article would not cover cases of transfer or alienation by executor or trusteede son tort or by shebaits who though not having valid title were in possession of endowed property and effected alienation or transfer without any valid title. In such cases the challenge must take the form of declaration that the transfer was invalid having been made by one without any title and injunction against the alienee to assert tide on the strength of such alienation. It is to be noticed that the transfers covered by Article 134 A are transfers by the 'manager' of the endowment. 'Manager' is a very wide termmeaning 'one who manages' having no reference to title. In my judgment cases of void transfer were intended to be covered by Article 134 A of the Limitation Act and the phrase 'to set aside a transfer of immoveable properties' must be given a very generous meaning to cover not merely cases of voidable transactions but to 'void transactions as well effected by the manager of endowed property having no title to the same. In my judgment the instant case is governed by Article 134 A of the Limitation Act in so far as it challenges the lease inter alia against the lessee defendants. Even though no decree for possession can be given in this suit, the limitation would be 12 years under Article134 A of the Limitation Act. This Article 134 A does not contemplate a case of possession against the alienee.
25. Injunction claimed in the suit is limited in character seeking only to restrain the lessee defendant from demolishing the structure. No injunction is claimed restraining the lessee from realising rent from the tenants of the demised premises or otherwise claiming title under the lease. There is a prayer for possession in favour of the new trustees to be appointed. New trustee however has to be appointed in other proceedings and not in this suit. There cannot therefore be a decree for possession in this suit. It is contended that even though a restricted injunction is claimed in prayer (h) the Court is entitled to grant a decree for injunction in wider terms. There is the prayer for 'further and other reliefs'. Further, Order 7 Rule 7 expressly empowers the Court to grant such general or other relief as the Court may think just to the same extent as if it had been asked for. In order however that such a relief can be granted the ground for granting such relief must not be inconsistent with the plaintiff's claim. It is contended by Mr. Chaudhuri that the plaintiff's case is that the lease has been granted by persons without any title and therefore the injunction claimed in wider terms does not run counter to the plaintiffs case as made in the plaint. This contention of Mr. Chaudhuri has force and must prevail.
26. For reasons given above there will be a decree in terms of prayer (b) (c) (f) (i). I adjudge the lease to be void and I issue an injunction in wider terms so as to restrain the defendant Ashutosh Coomar, his agents and servants not merely from dismantling the structure at premises No. 141, Cornwallis Street but also from doing any act on the basis of the lease and from receiving any rents from the demised premises. For other reliefs claimed in the suit there must be other proceedings. The plaintiff and the deity will get costs out of the estate, the other parties will pay their own costs, certifed for two counsel. I assess the deity's costs at Rs. 2,500/- and direct the deity's costs to be paid in the first instance. The solicitor for the deity will refund to the plaintiffs solicitor any amount that may have been advanced by him.