1. In my opinion, this appeal must be allowed and the suit must be dismissed with costs on the original side and before us.
2. The suit was brought in 1924 and it was brought against three persons or sets of persons of whom we are now concerned only with the first. The defendants with whom we are concerned and who are the appellants before us are the legal representatives of one Damodardas. It appears that Damodardas acted for a time as trustee of a certain foundation belonging to the Sikh community to which belonged certain endowments and shrines situated in Calcutta. This foundation has been generally referred to by the name of Burra Sikh Sangat which etymologically implies that it is an association; but there can be no doubt that it is a religious foundation, that the property of the foundation is held by trustees and that from time to time the Court has purported to appoint trustees to the foundation. Whether or not there is a right in the members to appoint a trustee at their own hands when a vacancy occurs by a resolution of the general body of the worshippers or members is a question as to which I shall say something in a moment.
3. A suit was brought in 1922 being Suit No. 2502 for the removal of the defendants from the post of managers and trustees of the Burra Sikh Sangat and for the appointment of a new trustee. That was brought against Damodardas, Bhai Mohan Singh a defendant in the present suit, and Sirdar Sundar Singh, also a defendant in the present suit. These two latter defendants have in the present suit not contested the case. The suit was decreed upon certain terms of settlement in February 1923. Bhai Mohan Singh resigned from his trusteeship and the Shiromoni Gurdwara Parbandhak Committee was appointed the sole trustee of the Burra Sikh Sangat. Thereupon, the persons acting for this body claimed from Damodardas a sum of Rs. 10,000, and Damodardas said that he had already paid it to a certain attorney and that that payment was a good discharge to him. There was no contest that the sum of money had come to the hands of Damodardas as a trustee of the Burra Sikh Sangat. In these circumstances, the present suit was brought in 1924.
4. Now, it appears to have taken a long time before the suit was brought on to an effective hearing. It seems that, in 1925, it came before a learned Judge and was adjourned sine die and that since then the plaint has been amended by alterations on the side of the plaintiffs. It appears that the Prabandhak Committee, which by the decree of February 1923 was made the trustee, was a society registered under the Act of 1860 for religious and charitable objects and, for the present purpose, I do not propose to investigate whether, in these circumstances, it was a proper person to be appointed as trustee, nor shall I investigate the question whether Damodardas was bound by the decree in the suit to which he was a party, of February 1923. I shall assume that the appointment in February 1923 of this registered society made this society the sole trustee of the Burra Sikh Sangat.
5. In 1925, a certain Act was passed by the Punjab legislature for the regulation of Sikh Gurdwaras in the Punjab, and by that Act was set up a Central Board with certain functions by way of supervision and control of the Sikh shrines in that province. The Board was given the capacity, to act as trustee of religious and charitable concerns.
6. On 23rd November 1925, the plaint in the present suit was amended by putting in the name of one Ganda Singh as the constituted attorney of the Prabandhak Committee which had been appointed trustee in 1923, and, in 1926, the Prabandhak Committee took steps to dissolve itself having, before it dissolved, purported to transfer its functions to the Central Board which was set up by the Punjab Act. This Central Board had right under the Act to change its designation and, in point of fact, in or about 1926, the Central Board took for itself, with the permission of the Government, the same name as had been used by the registered society to which I have referred namely the Shiromoni Gurdwara Prabandhak Committee. On 28th December 1926, the members of the Burra Sikh Sangat who appear to be all persons who profess the Sikh religion and who exercise the right of attending Sikh shrines held a meeting by which they purported to appoint the Central Board under its old name as trustee. Levying out an application upon which nothing is rested because it would appear that the application was altogether out of order. I refer to the application under the Trust Act of January 1927.
7. I come next to a resolution of 10th June 1928 by the members of the Burra Sikh Sangat which appointed the statutory Board under its new name of the Shiromoni Gurdwara Prabandhak Committee to be the trustee of the Sangat. This resolution purported to look forward to an appointment by the Court and on 5th July 1928, it appears that, although Damodardas, defendant 1 in that suit had long been dead, no substitution having been made, and the other defendants had ceased to have any special status; although the plaintiffs in that suit were no parties to the application, an application was made in Suit No. 2502 of 1922 by the Shiromoni Gurdwara Prabandhak Committee and certain other persons, members of the Burra Sikh Sangat, by summons to have the new statutory Shiromoni Gurdwara Prabandhak Committee appointed trustee of the Burra Sikh Sangat. This is the same suit that had come to an end by the decree of 1923 and it is quite clear to my mind that the application before the learned Judge was altogether out of order. It does not appear to me that the learned Judge had any jurisdiction to make any order upon the summons which was a crude evasion of Section 92 of the Code and otherwise out of order; but it remains a fact that he did purport in this old suit upon this master's summons to appoint the new statutory Shiromoni Gurdwara Prabandhak Committee to be the trustee of the Sangat. Thereafter an application was made in the present suit to substitute this statutory body under the name of the Shiromoni Gurdwara Prabandhak Committee as plaintiffs in the suit and it was they who were the plaintiffs when the suit came on for trial before Buckland, J., who decreed it.
8. In this appeal, Mr. Banerjee for the appellants the representatives of Damodardas has contended that the original body hearing the name of Shiromoni Gurdwara Prabandhak Committee was not itself ever at any time validly appointed to be the trustee of the Sangat. I do not think it necessary to enter into that question as I am prepared to dispose of this case on the footing that that body did become in 1923 the legal trustee thereof.
9. The next question is whether the body of the same name, which is really set up by the Punjab Act of 1925, have been validly made trustees of the Sangat so as to be able to maintain the suit in that capacity. Upon that question I am quite clearly of opinion that the suit must fail. The right of a trustee to nominate his successor is a right which must be derived from some special provision either in the deed of settlement or in the rules of the foundation, or in the custom of the society or otherwise. There is no evidence whatever that this registered society had any power to nominate a successor in the trusteeship. That being so the validity of the appointment of the present respondents, the plaintiffs, to the trusteeship must be grounded in some other way. It is quite true and it is not contested by the 'earned Advocate-General for the plaintiffs-respondents that there is not in the record in this case proper evidence to show what the nature and constitution of the Burra Sikh Sangat is, so that we can be satisfied by evidence that the condition of this foundation is such that trustees can be appointed by the members of the Sangat.
10. It would appear that the Sangat is a name, first of all, for a, foundation, and it also appears to be a collective name for all the Sikhs in Calcutta who take an interest in this particular foundation. But there is certainly no evidence before us to show that the condition of this foundation is such that the members worshipping at the shrine or otherwise exercising their right of membership have a right to appoint a trustee. That being so the Advocate-General has asked us to give his clients an opportunity of calling further evidence to show what the nature of this foundation is, what its history is, what rules govern it, and how, according to its constitution trustees should be appointed. The respondents desire in that way to satisfy us that it is the right of the Sangat to nominate its own trustees and, although it has gone; Court for the appointment of trustees from time to time, it is in no way obliged, unless a trustee requires to be removed, to seek the sanction of the Court for the appointment. I am of opinion that this application for leave to adduce further evidence is altogether belated and should not be entertained. I am quite satisfied that it was the duty of the respondents, after all the trouble that they had taken to reconstitute the suit, to provide themselves with proper evidence of the constitution of this body before the suit came on for trial before the learned Judge.
11. It would not be right that at this stage they should be permitted to mend their hand in that way. That being so the case must be disposed of upon the evidence on the record. It is conceded that there is no such evidence and, in any case, I am of opinion that there is no such evidence of the constitution of the Sangat as would satisfy the Court that the trustees of the foundation could validly be appointed by such a meeting as is disclosed by the evidence. The meeting appears to have been called by hand-bills; it appears to have been well attended; it appears, it is true, to have come to a unanimous decision; and, though there may be certain informalities, I dare say that the resolution of such a meeting would be a thing to which the Court would pay the greatest possible attention upon a proper application to appoint the meeting's nominee to the office of trustee. In my opinion the meeting and resolution of itself operates nothing at all in the matter of, the trustee.
12. Then the question is can the plain-tiffs rest their case upon the order of) 5th July 1928 It is very properly) conceded by the Advocate-General that] they cannot and that at the trial it was expressly admitted that that order of itself has no effect. At the time when' the plaintiffs claimed to be substituted as plaintiffs in the present case the defendants raised an objection and the order was made without prejudice to the contention of the defendants that might be raised hereafter. In my judgment the effect of the order of 5th July 1928 was not to constitute the present plaintiffs trustees of this Gurdwara or of the endowment belonging thereto. Such an application in a suit which was long dead, a suit in which one of the main defendants was not represented at all, an application in which even the plaintiffs in the case were not consulted-that application is one which is entirely void and the order has no effect at all-the learned Judge having no jurisdiction whatever in that way upon the master's summons to make any appointment to the office of trustee.
13. In these circumstances I think the plaintiffs' case fails. The appeal is allowed and the suit dismissed with costs as against the appellants.
14. The decree of the Judge on the original side will stand good as against the other defendants.