Judgement

SATYANARAYANA RAJU, J. :- This is an Appeal against an order of the Subordinate Judge of Cuddapah dismissing a petition for leave to sue in forma pauperis under O. 33, R. 1, Civil P.C.

2. The appellants case, is that the nine items of lands, described in the schedule annexed to the petition are the endowments of a mosque called Maddekhan Masjid, of which one Haji Khan Jamman, who died en 19-8-1849, and respondents 1 and 2 are the trustees. He alleged that the three trustees divided some of the properties among themselves prior to 1925 and the remaining properties subsequent thereto and that thereafter they neglected the management of the institution and alienated the suit properties in favour of respondents 3 to 30, who are now in possession.

The appellant, who is the son of the 1st respondent, claims that he has been looking after the institution for some years and alleges that the alienations of the suit properties in favour of respondents 3 to 30 are void and not binding on the institution.

3. The petition filed by the appellant for leave to sue in forma paupsris was contested by respondents on the grounds that it did not disclose any valid cause of action for the appellant to sue.

4. The Subordinate Judge held, that the appellant did not claim recovery of the properties as a beneficiary of the trust and that the petition did not disclose a valid cause of action for the appellant to sue and dismissed the petition.

5. It is true that the appellant doss not claim that he is a beneficiary of the trust. The only ground on which he seeks to maintain the present action is in his capacity as a de facto trustee of the institution.

6. The rights of a de facto trustee to maintain 3 suit for the enforcement of the rights of the institution were recognised by the Madras High Court in Moideen Bibi Ammal v. Rathnavelu Mudaliar, AIR 1927 Mad 69 (A), Md. Ibrahim v. Sundaram Chetti, AIR 1926 Mad 1066 (B), and Kasi Chetty v. Srimathu Devasikamany Nataraja Dikshithar, 1913 Mad WN 131 (C), and by the Privy Council in Ram Charan Das v. Naurangilal, AIR 1933 P.O. 75 (D), and Mahadeo Prasad Singh v. Karia Bharti, AIR 1935 P.O. 44 (E).

But, however, in Vedakannu Nadar v. Annadana Chatram, AIR 1938 Mad 982 (F), Venkatasubba Rao and Abdur Rahman, JJ., took a contrary view. The learned Judges held that a de facto trustee as such had no locus stand! to maintain an action on behalf of the trust, even though the action was found to have been taken in the interests of the trust and for its benefit.

This decision was based on the ground that a de facto trustee was really no other than what is known to law as a trustee de son tort and his position did not improve by describing himself to be a trustee de facto and that as a trustee de son tort he could not confer a right on himself to maintain suits on behalf of the trust even if they were taken to have been instituted for the benefit of the trust. This decision was followed by Horwill, J., in Vasudeva Rao v. Packiri Muhammad Rowther, AIR 1944 Mad 171 (U).

The learned Judge felt bound by the decision in AIR 1938 Mad 982 (F), which laid down a principle of general application and held that a person who is not the de jure trustee but is only a de facto trustee is not competent to sue for recovery of possession of trust property alleged to be wrongfully alienated.

7. On the ground that it involved the consideration of conflicting decisions as to the rights and liabilities of manager trustees acting de facto and not de jure, Chandrasekhara Ayyar, J., referred the matter for the decision of a Full Bench in Pattabhirama Reddi v. Balarami Reddi, AIR 1945 Mad 43 (FB) (H), but the learned Judges who constituted the Full Bench considered that the question did not arise on the facts of the case because that was not a case where de facto trustees, in the absence of de jure trustees, took action with regard to the property of the trust in the interests of the trust but was a case where persons who had no manner of right to be in possession of the trust property wrongfully kept the lawful trustees out of possession.

8. Later, however, in Sankaranarayana v. Poovanatha Swami Temple, AIR 1949 Mad 721 (FB) (I), a Full Bench of the Madras High Court considered the conflict of decisions as regards the maintainability of suits by de facto trustees. Rajamannar C.J., with whom Viswanatha Sastri and Raghava Rao, JJ., agreed, pointed out the fundamental difference between the judicial conceptions on which the English law relating to trusts is based and those which formed the foundations, of the Hindu and Muhammadan systems and held, that a shebait or a Dharmakartha is not a trustee in the English sense of the term, although, in view of the obligations and duties vested in him, he is answerable as a trustee in the general sense for maladministration, and that by whatever name designated he is only the manager and custodian of the idol or the institution.

The same conception obtains even in respect of Muhammadan religious endowments and neither a Sajjadanashin nor mutawalli is a trustee in the technical sense. The learned Chief Justice quoted with approval the decision of Wadsworth, J. in Subramania Gurukkal v, Srinivasa Rao, AIR. 1S40 Mad 617 (J), where it was observed thus :

"It is the duty of the Court to protect the trust property from misappropriation and diversion from the objects to which it is dedicated. When trust property is without a legal guardian owing to any defects in the machinery for the appointment of a trustee or owing to unwillingness of the legal trustee to act, it will be a monstrous thing if any honest person recognised as being in charge of the institution and actually controlling its affairs in the interests of the trust should not be entitled, in the absence of any one with a better title, to take those actions which are necessary to safeguard the interests of the trust"

The Full Bench held that the decisions in AIR 1938 Mad 982 (P), and AIR 1944 Mad 171 (G) did not lay down the correct law.

9. Subsequent to the decision of the Full Bench in AIR, 1949 Mad 721 (I) the Privy Council delivered Judgment in the appeal preferred to it by special leave from the Judgment of the Madras High Court in AIR 1945 Mad 43 (H). Dealing with the contention that by reason of the definition of trustee in S. 9 of the Madras Hindu Religious Endowments Act (2 of 1927) which includes within its ambit any person who is liable as if he were a trustee the powers conferred by S. 40 of the Hindu Religious Endowments Act would enable de facto trustees, acting bona fide to do what de jure trustees could do in the due course of administering the temple estate, their Lordships observed thus :

"It may well be that S. 40 can operate to confer a measure of authority upon de facto trustees, but their Lordships cannot agree that the sole test is one of bona fides, as, were it so, well intentioned intermeddlers could by their wrongful acts assume and exercise a jurisdiction as complete and effectual as that possessed by the lawful trustees. The better view may be that the effect of S. 40 in relation to de facto trustees must be considered in the light of the facts of each case with special reference to the circumstances which have attracted to the de facto trustees the liability mentioned in the definition.

For reason which will shortly appear, however, their Lordships do not find it necessary to express a final view on this, and they therefore refrain from any attempt to determine if, or how far, the scheme trustees derived authority from the Act of 1926".

10. In Gopal Krishnaji Ketkar v. Mahomed Jaffar, AIR 1954 SC 5 at p. 8 (K) their Lordships of the Supreme Court stated the rule thus :

"....a de facto manager or a trustee de son tort has certain rights. He can sue on behalf of the trust and for its benefit to recover properties and monies in the ordinary course of management"

11. The foregoing decisions establish that when trust property is without a de jure trustee owing to any defects in the machinery for the appointment of a trustee or owing to the unwillingness of de jure trustee to act, a de facto trustee, who is in possession and management of the institution for the time being, may be allowed to maintain a suit on behalf of the institution for the recovery of trust property held adversely by a stranger so long as the action is for the benefit of the real owner, namely, the institution.

It is also well settled that the right of a person other than a de jure trustee to maintain a suit for possession of trust properties cannot be decided in the abstract and must necessarily depend on the facts of each case. The same rule is equally applicable to Wakf and Hindu Religious Endowments.

12. In the light of the well-settled principles above stated, it will be necessary to examine the material allegations contained in the petition filed by the appellant. The appellant alleges that the late Haji Khan Jamman and respondents 1 and 2 (the de jure trustees) instead of exercising mere right of enjoyment, each of them jointly and severally sold away, as and when it suited them, the various items of properties, to respondents 3 to 30 or their predecessors-in-title and that they never attended to the institution and its management and gradually neglected its affairs.

The appellant claims that he is the sole person who has been looking after the affairs of the institution for some years now and that respondents 3 to 30, who are in unlawful possession of the suit properties, have not delivered possession of the same in spite of his registered notice. He prays that he may toe permitted to sue in forma pauperis and that a decree may be passed directing respondents 3 to 30 to deliver to him the items of the schedule properties now in their possession together with mesne profits.

13. These allegations, if true, make it clear that the persons in possession are alienees from de jure trustees and the de jure trustees themselves are unwilling to act. In the very nature of things it is impossible to expect the de jure trustees, to take action for the recovery of the properties which they have themselves alienated-The appellant is a person who claims to be in de facto management of the trust for the time being. On a fair reading of the allegations in the petition, it is clear that he is seeking recovery of the properties on behalf of the trust and for its benefit.

14. Under these circumstances, it cannot be said that the petition does not disclose a valid cause of action for the appellant to sue. The order of the Subordinate Judge rejecting the appellants application must be set aside. The appeal is therefore allowed. Respondents shall pay the costs of the appellant.

Appeal allowed.