D.N. Mitter, J.
1. This is an appeal from the decision of the District Judge of Dacca dated 21st April 1932, by which he dismissed the suit brought by the plaintiffs under Section 92, Civil P.C., in the following circumstances: It appears that the plaintiffs who are the appellants before us brought a suit under Section 92, Civil P.C., with the necessary sanction against the two defendants. The allegation against defendant 1 was that he was the sole mutwalli of the wakf property in question and he began to treat wakf property as his own and he did not properly look to the interest of the wakf. It was further stated that defendant 1 after having assumed the position of the, sole mutwalli mortgaged the wakf property and raised money for his own use in contravention of the terms of the wakfnama and against the directions and practices of the former mutwalli. In para. 13 of the plaint it was stated that defendant 1 in collusion with defendant 2 transferred the wakf property to defendant 2 most wrongfully and illegally. In para. 14 an allegation was made to the effect that defendant 2 procured the said defendant 1 to do various wrongful and unconscionable things with reference to the wakf property with full knowledge of the fact that the properties had been permanently dedicated to the mosque referred to in the earlier part of the plaint. In para. 17 of the plaint it is stated that defendant 2 has been in possession of the wakf property and that rent, profits and income of the wakf properties are now being entitled for their own benefit and the mosque has thus been deprived of them. In para. 19 a very important statement is made to which prominent attention should be drawn for the purpose of determining the controversy raised in the present appeal. That statement is this:
That defendant 2 knowingly and fraudulently took possession of the wakf properties and has been utilising the income thereof in collusion with defendant 1 and hence both of them are liable to accounting as trustees do son tort.
2. An equally important statement or allegation is made in para. 20 of the plaint which runs to the following effect:
That defendant 2 is not a bona fide purchaser for value without notice and as such is a constructive trustee of the wakf properties in his possession and is therefore legally liable to restore the possession of the said properties to the legally appointed mutwallis.
3. On these relevant statements in the plaint relief was asked for as against defendant 1 alleging as against him that he had been guilty of several breaches of trust which are enumerated in para. 22 of the plaint, vide pp. 7 and 8 of the paper book. Plaintiffs' prayers are contained in para. 25 of the plaint and it is necessary to refer to prayers (a) and (b). Prayer (a) is to the following effect:
That the defendants may be removed from position of trustees or mutwalliship de jure or de son tort or constructive.
4. Prayer (b) runs as follows:
That a mutwalli be appointed to take charge of and administer the wakf properties, and the same may be vested in him.
5. This plaint was filed on 1st December 1931, in the Court of the District Judge of Dacca. Summonses were served on the defendants fixing 7th January 1932 for settlement of issues. Both the defendants entered appearance and asked for time to file written statement. After another adjournment on 10th March 1932 the defendants ultimately filed two written statements. In the written statement of defendant 2 one averment was made in para. 13 which it is necessary to notice now although the question does not depend on what is stated in the defendant's written statement, for the matter in controversy before us has to be decided solely on the allegations in the plaint. But we refer to this paragraph to show how defendant 2 understood the allegations in the plaint made against him. Para. 13 of his written statement is to the following effect:
That defendant 2 not having taken upon himself the character of a trustee, rather having asserted hostile title to the alleged trust, he cannot be treated as trustee de jure or de son tort or constructive, and the suit as such is not maintainable against him.
6. After the filing of this written statement it appears that on 23rd March 1932 the matter came up before the District Judge who after hearing the pleaders recorded the following order:
Pleaders heard. The defendants deny that the property is a public trust at all and contend that it is their private property. The suit cannot proceed unless the plaintiffs obtain a declaration that the property is trust property. It is perfectly true that such a suit would be instituted in the Court of the Subordinate Judge. But this Court has jurisdiction over the property and no useful purpose would be served by compelling the plaintiffs to institute two suits. The plaintiffs are directed to amend their plaint and pay court fees within a month, failing which the suit will be dismissed.
7. This order is numbered 5 and dated 21st March 1932. On 21st April 1932 the plaintiffs applied for time, and as the pleaders were not present the application for time was refused and the suit was dismissed in accordance with Order 5. dated 21st March 1932. It is against this order dated 21st April 1932, which is really a consequential order on the one passed on 21st March 1932, that the present appeal has been brought, and it has been contended before us that the learned Judge has committed an error of law in dismissing the suit on the failure of the plaintiffs in furnishing the necessary court-fees after amending their claim in the manner suggested by the Court. The order of the learned District Judge is a very cryptic order and extremely brief, and we do not actually know under what circumstances the suit was dismissed. All that we can get from the order is that the learned Judge was of opinion that unless the plaintiffs could obtain a declaration that the property was trust property the suit could not proceed. The nature of the trust was disputed by the defendants, and the issue which might have to be determined in the suit was as to whether the trust is a public charitable trust within the meaning of 8. 92, Civil P.C.
8. In support of the appeal it has been contended on behalf of the appellants that in a suit under Section 92 it is competent for the court to decide the question as to whether the trust in respect of which the suit is brought is a public charitable trust or not so as to attract the application of Section 92, Civil P.C., and that a separate suit for the declaration that the property is a trust property is not necessary. This position has' not been disputed on the other side, and authorities were shown that in a suit such as this an issue may be raised as to whether the trust was a trust contemplated by Section 92, Civil P.C. But the argument before us has centered on two questions: (1) it has been said that as defendant 2 is an alienee in respect of the trust property, and the property has been sold to him, the suit is not under Section 92 because where a stranger to a trust has been added as party to a suit which is purported to have been brought under Section 92 the suit loses its character as such. In other words it is said that it falls outside the range of Section 92 as soon as a stranger to the trust has been made a party to the suit. Numerous authorities have been placed before us. There has been some divergence of opinion between different High Courts, more particularly the High Courts of Allahabad and Bombay on this question.
9. But it has been consistently held throughout in so far as this High Court is concerned that a stranger to a trust is neither a necessary nor a proper party to a suit under Section 92, Civil P.C. We may refer in this connexion to the very early case on this point of Budh Singh Dhudhuria v. Niradbaran Roy (1905) 2 CLJ 431. At p. 437 of the report Asutosh Mukerji, J., after dealing with the contention whether under Section 539 of the Code of 1882 which corresponds to Section 92 of the present Code a suit for the dismissal of a trustee and for the recovery of trust property from the hands of a third party to whom the same has been improperly alienated is within the scope of that section notices the divergence of opinion on the question. After considering the divergence of opinion the learned Judge found himself wholly unable to accept the view, namely, that decree for the recovery of trust property from the hands of a stranger to whom it has been improperly alienated may be made in a suit instituted under Section 539, Civil P.C. The learned Judge said:
It is reasonably clear that a decree for the removal of a trespasser does not come within the scope of clauses (a) to (e) Section 539 nor is it comprehended, I think, in the general clause which speaks of a decree granting such further or other relief as the nature of the case may require.
10. This was undoubtedly a case of ejectment of a trespasser and it was held that if a suit to eject a trespasser does not fall within the purview of Section 539, Civil P.C., the claim for precisely the same purpose cannot be joined with a claim for administration of the trust under that section. Towards the end of the judgment Mookerji, J., observed as follows:
That an alienee was transferee from the original transferor who was neither a necessary nor a proper party to the suit.
11. It is contended on behalf of the appellant that these observations are too wide. But these observations were followed in subsequent cases as will presently be shown. Reference may be made to another case of this Court, namely the case of Gholam Mowlah v. Ali Hafiz. 1918 Cal 5, where Sir Lancelot Sanderson, C.J., Woodroffe, J. and Mookerji, J., affirmed the view taken in the case reported in Budh Singh Dhudhuria v. Niradbaran Roy (1905) 2 CLJ 431 just cited. Mookerji, J., said that he need not repeat the grounds on which he based his view in that case where be held that suits for recovery of possession of trust properties from third parties, for instance, from trespassers and from the transferees from the trustees, were not within the scope of Section 539, Civil P.C. of 1882, which has been subsequently replaced by Section 92 of the Code of 1908. So far as this Court is concerned this is the view which has been consistently taken. In this case there was no prayer for ejectment of defendant 2. But the question surely is to be decided on the pleadings as to whether the trust is a public charitable trust within the meaning of Section 92, Civil P.C., and whether such a declaration can in this case be made when the transferee is a stranger to the trust so as to be binding on the alienee. Opinions of various High Courts are collected together in Sir D.F. Mulla's commentary on the Civil P.C. at p, 307 of the 10th edition (1934). See chitaly's Civil P.C. Vol. 1 p. 675 Note No. 28 (2nd edn.) The learned commentator says this:
All High Courts are agreed that in a suit such as the above (suit under Section 92) a decree cannot be passed against the alienee directing him to deliver possession of the property to the plaintiffs, though he is a party to the suit as such relief is neither specifically mentioned in the section nor implied in Clause (h) and that the remedy of the newly appointed trustee is to institute a separate suit for possession against him. The proposition that the Court has no power under this section to pass a decree against an alienee directing him to deliver possession to the plaintiffs is in accordance with a recent ruling of the Privy Council where it was held that a relief or a remedy against third persons, that is strangers to the trust, was not within the scope of this section.
12. The learned author relies in this connection on the case of Abdul Rahim v. Abu Mahomed, 1928 PC 16. Then the learned commentator gives his own opinion regarding the power of Court to make a declaration and submits that:
The Court has also no power under this section to make a declaration that the property in suit is not trust property so as to bind the alienee, such a relief also being outside the scope of the section.
13. There is a very recent decision of Sir Arthur Page C.J. of Burma, where all the cases on this point are exhaustively reviewed and the learned Chief Justice has held that the plaintiffs in a suit framed under Section 92 are not entitled to claim against strangers to the trust either a declaration of title or possession or any other relief, and a suit under Section 92 in which a claim for relief which the Court is competent to decree in such a suit entails a clear misjoinder both of parties and of causes of action and unless the plaint is amended the suit cannot be sustained. The case referred to is the case Johnson Po Min v. U Ogh, 1932 Rang 132. This view also seems to be in consonance with what has been maintained by this Court in so far as this point is concerned. But the learned Advocate for the appellant has sought to argue that the present case is distinguishable from the Rangoon case and the cases taking the same or similar view seeing that this is not a case of alienation pure and simple or of bona fide purchase for value without notice of the trust. On the other hand it is argued that this is a case where according to the allegations made in the plaint, the purchase was made by defendant 2 with full knowledge of the trust. The position of defendant 2 is that he is a constructive trustee, and the appellant argues and in our opinion rightly that the case of a constructive trustee, or de jure trustee, or trustee de son tort is covered by the provisions of Section 92, Civil P.C. Mr. Bose for the respondents has however contended in reply that there is no case of constructive trustee here, for since the moment of his purchase the defendant ceased to act as a constructive trustee to act in the interest of the trust. The question really does not depend on that circumstance, for according to the authorities to which we shall presently refer the allegations made in the plaint do constitute defendant 2 a constructive trustee. We may refer in this connexion to the law with reference to constructive trusts as has been summarized in Under-hill's Law of Trust and Trustee, where the learned author refers to a number of cases which really do support the view stated above, namely where a stranger to a trust receives money or property from the trustee which he knows, (1) to be part of the trust estate, and (2) to be paid or handed to him in breach of the, trust he is a constructive trustee of it for the persons equitably entitled but not otherwise: See p. 182 of the eighth edition of Under-hill Law of Trusts (1926). The learned author has referred in support of this proposition to a number of cases to which reference may be made: Barnes v. Addy (1874), 9 Ch 244; Re. Spencer (1881) 51 LJ Ch 271; Re Blundell, Blundell v. Blundell (1888) 40 Ch D 370. at p. 381; Soar v. Ashwell (1893) 2 QB 390; Thomson v. Clydesdale Bank (1893) AC 282 and Re Barney Barney v. Barney (1892) 2 Ch 265. Our attention has also been drawn to a passage in Lewin's well-known treatise on the Law of Trust. We are referred in particular to a passage at p. 205 and to another passage at p. 877, Edn. 11 of the work. At p. 877 where the question has been more elaborately discussed the learned author states the law thus:
But if the alienee be a purchaser of the estate at its full value, then (subject as aforesaid) if he takes with notice of the trust, whether the notice be actual or constructive, he is bound to the same extent and in the same manner as the person of whom he purchased even though the conveyance was made to him....
14. The learned author cites cases in support of this proposition. Therefore looking to the averment of the appellants in the pleadings defendant 2 is a constructive trustee of the wakf property. The suit cannot be said on the allegations made in the plaint not to be one falling within the provisions of Section 92, Civil P.C. The suit is maintainable without payment of ad valorem Court-fee for the declaration. In these circumstances the proper order to make is to set aside the orders of the District Judge dated 21st March 1932, as well as 21st April 1932, which last order is really the final order and to direct that the case be sent to the District Judge in order that he may try the suit in accordance with law. We do not and indeed we cannot express any opinion as to truth or otherwise of the allegations made in the plaint on which it is claimed that defendant 2 is a constructive trustee. That is a matter of evidence. All that we can say, is that the allegations if proved are quite sufficient in law to bring the suit under the provisions of Section 92, Civil P.C.
15. The appellants are entitled to get their costs in this appeal. The hearing fee is assessed at five gold mohurs.
16. I agree.