Lancelot Sanderson, C.J.
1. In this case the action was brought by four plaintiffs whose names appear upon the record: the second and third are two sons of Abdur Rahman, who is the first defendant, and the first and the fourth are relations of Abdur Rahman, and the second defendant was a man called Gholam Mowlah, who was a purchaser of certain property from the first defendant. The purchase was effected by a deed which is dated the 12th June 1910; I need not read the deed in detail because it pas been fully commented upon by Mr. Asgbar, the learned Counsel for the plaintiffs, this morning:--It refers to certain property in Calcutta on a part of which stands a mosque; and Abdur Rahman, the Vendor, in the conveyance refers to the fact that this property was his hereditary property, that his father and he himself have, generation after generation, in succession without any. body's objection all along for more than twelve years, been, enjoying and possessing the proprietary rights thereof one after another and that no one else has any sort of right or claim thereto. Then he refers to the fact that he has got into necessitous circumstances and must sell. He says, 'consequently, there is no other means left but to sell my aforesaid Calcutta properties, subject to the duties and responsibilities of the said mosque, and 1 cannot sell the same to any other purchaser than a religious Musalman of the Sunni sect. Too, (i.e., defendant No. 2) are a religions Musalman of the Sunni sect, and believing all my aforesaid statements you became desirous of purchasing the aforesaid property as proposed by me, and having fixed the value thereof at Rs. 3,000 1 received from you yesterday,' and so on, and he sells the property subject to all the aforesaid, conditions, and says, 'you, being malik in all my aforesaid rights and titles, shall continue all along to enjoy and possess the same, and shall exercise all sorts of proprietary rights. You shall maintain the mosque according to the custom prevailing and look after the same and shall perform all the acta and observe the festivals that are necessary for the Musalumns of the Sunni sect in connection therewith:' and, ho refers to the different prayers, and then to the properties and says, 'all these belong to me personally; no one else has any sort of right or claim thereto; you believing all these statements of mine and other statements mentioned above relating to my title agreed to and purchased...should any one else purchase the aforesaid property from you, he shall also have to carry out the aforesaid conditions in respect of the mosque and you shall not be entitled to sell the aforesaid property to any one else who is not a Musalman of the Sunni sect.'
2. Now, it is said that this was a trust property held by the first defendant Abdur Rahman as trustee, and that he had no right to sell the property in the way he did. The action was brought by the plaintiffs against these two defendants. The first defendant did not appear; two of the plaintiffs, as I have said, are his sons; the other two plaintiffs are his relations. It was apparently proved in evidence that they bad very little connection with this mosque, that they did not live in Calcutta; one of them did not live there for fifteen years: and, without saying more, I agree with what the learned Counsel for the second defendant argued yesterday that there is ground for saying that their claim ought to be looked upon with great care. J. do not want to say more than that, because I have not heard what Mr. Asghar might have said with regard to that matter in full detail, bah there are certain facts, which, if I had been a Judge in the first instance, would have led me to investigate the bona fides of this claim with great care.
3. Now, the second defendant, it has been found by the learned Judge, was a bona file purchaser: He made certain enquiries which were detailed to us yesterday by Mr. Das and I am not going to repeat them. The learned Judge said that if the defendant had made certain further bnquiries he would, in all probability, have found that this was trust property, and the learned Judge has, therefore, come to the conclusion that the second defendant had what is called in law constructive notice, meaning thereby that it he had made these farther enquiries to which the learned Judge refers, which, in his opinion, were reasonable enquiries, he would have found that there was a trust, and inasmuch as he did not make those reasonable enquiries, he must be taken to have been affected with notice. This is what was meant by the words constructive notice. Therefore, that is the position of the parties.
4. Then, the claim is made and it is admittedly under Section 92 of the Civil Procedure Code. Now, the nature of the claim was this: As far as the first defendant Abdur Rahman was concerned, it is alleged that he had committed a breach of the trust by selling the property to the second defendant. It is asked that he should be removed from the position of trustee and that a new trustee should be appointed in his place. I think there were other prayers, but those were the main prayers as far as the first defendant was concerned.
5. As regards the second defendant, the essence of the claim against him was that he was a trespasser and that the property of which he was in possession under this purchase should be handed over to the new trustee who was to be appointad by the Court. It was in essence, as regards the second defendant, an action in ejectment of the second defendant from that property. It has been admitted by Mr. Asghar, the learned Counsel for the respondents, in the stress of argument that such a claim cannot be made in a suit which is instituted under Section 92 of the Civil Procedure Code, and, therefore, as far as the claim for that relief is concerned, he cannot substantiate the part of the decree which carries out that claim. But he says that the second defendant is really in the position of a trustee, and because he is in the position of a trustee, the plaintiffs were entitled to have him kept before the Court as a party to the proceeding, in order that he may hear the decree which the learned Judge would make against the first defendant and in such a way that the second defendant might be bound by that decree. His argument is, first of all, that this is a trust for two reasons First, the second defendant had a constructive notice of the trust. The learned Judge has found that he had constructive notice of this particular trust, and for the purpose of my judgment I will assume that this is a correct finding. Then he goes on to say that in addition to that the second defendant performed the duties, which the trustee of that trust would have to perform, and consequently he was a trustee de facto.
6. Now, I do not agree with the argument upon that point, because it is clear that any duties which he may have performed in connection with the mosque must be attributed to the covenant which he had made in the deed of conveyance of the 12th of June 1910. It is perfectly true that it is found that he had a constructive notice of the trust,--and it is so found because he did not make certain enquiries--but it is also true, as the learned Judge has found as a fact, that he was a bona fide purchaser and he did not in fact know that such a trust existed. Therefore, when we find in the deed that he personally undertook a covenant to the vendor that he would perform certain duties, because, as the vendor says; 'I have been looking after and keeping supervision over the same (mosque) and doing all other acts in connection therewith at my own expense... and I cannot sell the property to anybody else than a person who is a religious Musalman of the Sunni sect,...and I would not sell it to you unless you undertake to perform the same kind of duties as I have been performing'--meaning thereby, not as a trustee, but, as he says, 'out of my own pocket and out of my own money,'--it is clear to' me that such duties as may have been performed by tho defendant No. 2 must be attributed to that personal covenant which he made in that deed, and not to the position of a trustee of this particular trust. Therefore, I do not think that he must be taken as acting as a trustee de facto. The argument which was put forward by Mr. Asghar on this point, therefore, fails.
7. Then his argument is that if he does not succeed there, he is entitled to bring to his aid Order I, Rule 3, of the Civil Procedure Code, which runs as follows: 'All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise:' and, the learned Counsel says that under that rule, he is entitled to keep the second defendant before the Court, in order, as I have said before, that he might hear the declaration which would ba made by the Court against the first defendant. I think the answer to that argument is the one which was given by Mr. DAS yesterday, and it is this: inasmuch as the essence of the relief which was claimed by the plaintiff against the second defendant WAS ejeotment, or, to ba strictly accurate, recovery of possession of property, and inasmuoh as it is admitted that this claim could not ba brought under Section 92, I fail to understand-how Order I, Rule 3, can be applied in aid, because it is only applicable for the purpose of preventing multiplicity of suits: and one way of testing it is this--the concluding words point to it; they are:-- 'Where if separate suits were brought against such persons, any common question of law or fact would arise,' Once it is decided that the claim against the second defendant could not be instituted under Section 92, it is clear to my mind that it is outside the power of the Judge to make use of Order I, Rule 3, for joining the second defendant as a party to the proceedings under that section.
8. For these reasons, I think that this decree, so far as it affects the second defendant, must be set aside and the appeal, so far as that defendant is concerned, must be allowed with costs both of the Court of first instance and of this appeal. Against the first defendant the decree will stand and will be available to the plaintiffs for what it is worth.
John Woodroffe, J.
9. In my opinion the case is covered by the decisions in Budee Das Mukim v. Chonni Lal Johurry 33 C. 789 : 10 C.W.N. 581 and Budh Singh Dudhuria v. Niradbaran Roy 2 C.L.J. 431. It has doubtless been held in Sajedur Raja Chowdhuri v. Gour Mohun Das Baishnav 24 C. 418 : 12 Ind. Dec. (N.S.) 946 that where there is a claim for administration of a trust which falls within the section, a claim to eject an alience may be joined with it. But, in my opinion, that claim does not come within the scope of the section and it is open to the charge of misjoinder. That decision has been dissented from in the oases to which I have referred. The decision in Sajedur Raja Chowdhuri v. Gour Mohun Das Baishnav 24 C. 418 : 12 Ind. Dec. (N.S.) 946, not being a decision under the present Code, is not adecision which is binding upon us. I, therefore, agree that the appeal should be decreed.
Asutosh Mookerjee, J.
10. I agree that this appeal must be allowed and the decree discharged in so far as it affects the appellant.
11. The suit was, in essence, of a composite nature. As against the first defendant, the alleged trustee, it was framed as one under Section 92 of the Civil Procedure Code and appropriate reliefs were claimed against him. As against the second defendant, the transferee from the first defendant, the suit was in substance one for ejectment. In my judgment in the case of Budh Singh Dudhuria v. Niradbaran Roy 2 C.L.J. 431 I held--on grounds which were fully stated then and need not be repeated now--that suits for recovery of possession of trust properties from third parties, for instance, from trespassers and from transferees from the trustees, were not within the scope of Section 539 of the Code of Civil Procedure of 1882, which has been subsequently replaced by Section 92 of the Code of 1908. If I may say so without impropriety, I have heard nothing urged in the course of the elaborate and careful argument addressed to us on behalf of the respondents which has in any way shaken my opinion. That view is in conformity with a long line of decisions in all the Indian High Courts. Amongst the cases in this Court reference may be made to Mohiuddin v. Sayiduddin 20 C. 810 : 10 Ind. Dec. (N.S.) 545, Budree Das Mukim v. Chooni Lal Johurry 33 C. 789 : 10 C.W.N. 581, Ayatannessa Bibi v. Kulper Khalifa 22 Ind. Cas. 677 : 41 C. 749 : 19 C.W.N. 234. Amongst the oases in the Bombay High Court may be mentioned those of Lakshmandas v. Ganpatrav 8 B. 365 : 8 Ind. Jur. 686 : 4 Ind. Dec. (N.S.) 616, Vishvanath v. Rambhat 15 B. 148 : 8 Ind. Dec. (N.S.) 99, Kazi Hassan v. Sagun Balkrishna 24 B. 170 : 1 Bom. L.R. 649 : 12 Ind. Dec. (N.S.) 661, Ghelabhai v. Uderam 12 Ind. Cas. 577 : 36 B. 29 : 13 Bom. L.R. 989, Malhar Bhagvant Kulkarni v. Narsinh Krishna Majli 17 Ind. Cas. 666 37 B 95 : 14 Bom. L.R. 941 and Collector of (sic) v. Bat Chanchalbai 12 Ind. Cas 30 : 35 B. 470 : 18 Bom. L.R. 690. In the Allahabad High Court there is a distinct preponderance of judicial opinion in support of the same view, as is indioated by the decisions in Muhammad Abdullah Khan v. Kallu 21 A. 187 : A.W.N. (1899) 18 : a Ind. Dec. (N.S ) 828, Ghazoffar Husain Khan v. Yawar Husain 28 A. 112 : 2 A.L.J. 591 : A.W.N. (1905) 208, Jamaluddin v. Mujtaba Husain 25 A. 631 : A.W.N. (1908) 120 and Dasondhay v. Mohammad Abu Nasar 11 Ind. Cas. 36 : 33 A. 660 : 8 A.L.J. 710. In the High Court of Madras the same view has been taken since 1880, as is clear from the decisions in Strinivasa Ayyangar v. Strinivasa Swami 16 M. 31 : 2 M.L.J. 139 : 5 Ind. Dec. (N.S.) 729, Neti Rama Jogiah v. Venkatacharulu 26 M. 450, Chettikulam Prasanna Venkaiachala Reddiar v. Collector of Trichinopoly 24 Ind. Cas. 369 : 26 M.L.J. 537 : (1914) M.W.N. 581, Asam Raghavulu Setty v. (sic) Sitamma 25 Ind Cas. 794 : 27 M.L.J. 266 : 16 M.L.T. 178 : (1914) M.W.N 692 and Rangayya Naidu v. Chinnasamy Iyer 28 Ind. Cas. 898 : 28 M.L.J. 326 : 17 M.L.T. 191. The cases in this Court, which support the contention of the respondents, are, so far as I have been able to investigate, only two, namely, Lutifunnissa Bibi v. Nazirun Bibi 14 C. 33 : 6 Ind. Dec. (N.S.) 779 and, Sajedur Raja Chowdhuri v. Gour Mohun Das Baishnav 24 C. 418 : 12 Ind. Dec. (N.S.); from these I respectfully dissent; they do not, in my opinion, give a correct exposition of the true intention of the Legislature in framing Section 539 of the Code of 1882 and Section 92 of the Code of 1908. I do not feel pressed by the argument based on Order 1, Rule 3, and Rule 10, Sub-rule 2, mentioned in the judgment of Seshagiri Aiyar, J., in Asam Raghavalu Setty v. Pellati Sitamma 25 Ind Cas. 794 : 27 M.L.J. 266 : 16 M.L.T. 178 : (1914) M.W.N 692, as they are of no real assistance to the respondents. Once it is held, as I think it must be held, that a suit tow ejectment of a trespasser or of a transferee from a trustee is not within the scope of Section 92, it follows as a necessary corollary that the Court is not competent to bring before the forum any such person under either of the two rules mentioned.
12. I am also unable to accept the contention of the respondents that the appellant was in the position of a constructive trustee. No doubt, he undertook to maintain the worship in the mosque; but this was not in furtherance of the trust which the plaintiffs seek to enforce against the first defendant; it was rather, as the Chief Justice has pointed out, in pursuance of the covenant contained in the conveyance from the first defendant to the second defendant.
13. In my opinion, the decree as against the second defendant cannot possibly be supported and must accordingly be discharged.