1. This is an appeal on behalf of the defendants in a suit for declaration of what has been called marfatdari title to an endowed property and for recovery of possession thereof. The case for the plaintiff is that the disputed property belonged to an idol Sri Kunjbehary Thakur, that Brojo Mohon Das, the last audhikary, was the spiritual father of the plaintiff, that upon his death in 1882, the plaintiff, though an infant, succeeded him as audhikary, that during his minority the endowment was managed by his spiritual uncle, Kanhu Charan Das. On attainment of majority, the plaintiff alleges, he attempted to take possession of the endowment and to manage it on his own behalf, but objection was raised by Kanhu Charan Das. The result was that on the 3rd March 1890, the plaintiff executed an ekrarnama by which he recognised the right of the defendants (now appellants) to intervene in the appointment and removal of the audhikary of the endowment. The story for the plaintiff is that he subsequently obtained possession and continued as audhikary for many years. His name was registered in 1902; but by some mistake of the officers in the Collectorate, the name of Kanhu Charan Das was also retained in the register. This led to disputes, and the plaintiff found it necessary to execute a trust deed on the 14th March 1906 in favour of Jagat Bullabh Ghose and Sasi Bhusan Rai under which they became entitled to manage the endowment for five years. The plaintiff commenced the present action on the 23rd March 1908 for declaration of his title and for recovery of possession. The Courts below have concurrently decreed the suit. That decree has been challenged here, on behalf of the defendants, substantially on two grounds; namely, first, that the suit is barred as the requirements of Section 437 of the Code of Civil Procedure of 1882 have not been fulfilled; and, secondly, that in view of the terms of the ekrarnama of the 3rd March 1890, which is binding upon the plaintiff till set aside and also in view of subsequent events, the plaintiff is not entitled to be restored to possession as audhikary.
2. In so far as the first of these grounds is concerned, there is, in our opinion, no substance in it. Section 437 provides,--we quote only so much of the section as may be taken to have any application to the case before us--that in all suits concerning property vested in a trustee, when the contention is between persons beneficially interested in such property and a third person, the trustee shall represent the persons so interested and it shall not ordinarily be necessary to make them parties to the suit; but the Court may, if it thinks fit, order them or any of them to be made such parties. This section is obviously of no assistance to the defendants for two reasons. In the first place, the section is an enabling provision. It entitles the trustees to represent the beneficiaries and it states that ordinarily it shall not be necessary to make them parties to the suit, though the Court may for special reasons order them or any of them to be joined as parties. In the second place, it is clear that the deed of 1906, which has been described as a deed of trust, is not strictly of that character, because it does not vest any interest in the disputed properties in the so-called trustees. Notwithstanding the provisions of section 437, therefore, the suit is maintainable as framed.
3. In so far as the second ground is concerned, it is, in our opinion, well-founded and must prevail. The case for the defendants is that the ekrarnama of the 3rd March 1890 is binding and operative till set aside in an appropriate proceeding. In the Courts below, the plaintiff impeached the validity of the instrument on the ground that it had been obtained from him by fraud, undue influence and coercion. It is manifest that if the deed is liable to be challenged on any such ground, it is operative till avoided within the period prescribed by Article 91 of the second Schedule of the Limitation Act. In this Court, however, the validity of the deed has been assailed on two new grounds. It has been contended, in the first place, that the execution of the deed amounted to a breach of trust and that, therefore, it is open to the plaintiff to repudiate the instrument without proceedings taken to vacate it. It has been contended, in the second place, that the deed, as a matter of fact, never came into operation and that consequently it is needless for the plaintiff to have it formally set aside.
4. It may now be taken to be well settled by a series of decisions of the Judicial Committee that it is not necessary for a party to a deed to have it formally set aside if from its inception it is void and of no effect; or if subsequently its effect has been spent and it does not in any way affect the interest of the plaintiff. It is sufficient, in support of this proposition, to refer to the cases of Gnanasambanda v. Velu Pandaram 27 I.A. 69; 23 M.271; 4 C.W.N. 329; 10 M.L.J. 29; Malkarjun v. Narhari 27 I.A. 216; 25 B, 337 (P.C.); 5 C.W.N. 10; 10 M.L.J. 368; 2 Bom. L.R. 927 and Maharani Beni Pershad Koeri v. Dudhnath Roy 26 I.A. 216; 27 C. 156; 4 C.W.N. 274. These cases show that where a deed has been executed which is beyond the legal competence of the executant and is ab initio void and ineffectual, steps need not be taken to avoid it formally. This raises the question, whether the ekrarnama of the 3rd March 1890 is a deed of this description. As we have already stated, the effect of the instrument is to recognise the authority of the defendants to intervene in the matter of appointment and removal of the audhikary of the endowment. If it be taken for granted that this is a maurasi math and that the audhikary is appointed upon nomination of the mohunt, it may be conceded that the effect of this deed is to interfere with the constitution of the trust. It is worthy of note, however, that the deed does not purport to confer any authority upon the defendants to deal with the property of the endowment. It states expressly that neither the plaintiff nor the defendants would be competent to deal with the property in any manner. Strictly speaking, therefore, the deed cannot be treated as an instrument by the execution whereof the plaintiff committed a breach of trust. But even if it be assumed for a moment that the plaintiff did commit a breach of trust, it does not follow that the plaintiff is entitled to ignore it. It was broadly contended on behalf of the respondent that a trustee who had committed a breach of trust is entitled to repudiate his deed, and in support of this proposition reliance was placed upon the case of Newsome v. Flowers (1861) 30 Beav. 461; 10 W.R. 26; 31 L.J. Ch. 29; 7 Jur. (N.S.) 1268; 5 L.T. 570; 132 R.R. 363; 54 Eng. Rep. 968. That decision, however, is of no assistance to the respondent, because it merely affirms the proposition that trustees cannot set up as against their cestue que trust the adverse title of third parties. Reliance was also placed upon the cases of Juggutmoheenee Dossee v. Sookheemonee Dossee 17 W.R. 41; 10 B.L.R. 19; 14 M.I.A. 289; Mallika Dasi v. Ratanmani Chakervarty 1 C.W.N. 493 and Mahanth Ramji Dass v. Lachhu Dass 7 C.W.N. 145. But these cases also are clearly distinguishable. In the first case, the Judicial Committee laid down that a trustee was not estopped to prove the true nature of the endowment when he sought to prevent a repetition of abuse of the trust; in other words, the mere circumstance that he had on a previous occasion committed a breach of trust did not disentitle him to prevent a repetition of that abuse. In the second case, it was ruled by this Court that a mortgage of trust property which has been improperly executed may be questioned in a suit brought to enforce the security. It is worthy of note, however, that in this case the facts were known to the mortgagee, and in fact the true nature of the property sought to be alienated appeared on the face of the mortgage instrument. In the third case, it was held by this Court that when an ekrarnama has been improperly executed by a trustee of an endowment, the validity of the instrument may be questioned by his successor in office. The principles recognised in these cases are clearly of no assistance to the respondents. On the other hand, it was laid down in the case of Gulzar Ali v. Fida Ali 6 A. 24; A.W.N. (1883) 182 that a trustee of an endowment may commit a breach of trust and still may be estopped as against a bona fide transferee for value without notice of the breach of trust, although the beneficiaries may not be estopped by the improper conduct of the trustee. In the case before us, it is conceivable that the ekrarnama of the 3rd March 1880 is liable to be impeached by the beneficiaries of the trust. It is also conceivable that the ekrarnama may be successfully challenged by the successor in office of the present plaintiff. But we are clearly of opinion that the ekrarnama is binding upon the plaintiff if it really bears the character of a deed executed for settlement of disputes. The case for the defendants is, and that is practically not disputed by the plaintiff, that shortly after the plaintiff attained majority, there were disputes as to his right to the math, and he entered into this ekrarnama with a view to purchase peace. It has also been found by the Subordinate Judge that the defendants materially assisted the plaintiff to have his name registered in the Collectorate. Consequently, if it is ultimately found that the ekrarnama was executed in settlement of a bona fide dispute, it must be held binding upon the plaintiff, with the result that if the plaintiff has deliberately broken the contract mentioned in the ekrarnama, he is liable to bear the consequence thereof. In this view, it is essential that the circumstances under which the ekrarnama was executed should be investigated by the District Judge. This brings us to the second ground upon which the validity of the ekrarnama has been assailed.
5. It has been contended that the ekrarnama never came into operation, that the instrument remained in the custody of the plaintiff and that the defendants failed to carry out their engagements under the agreement. This part of the case has not been properly considered by the District Judge. No doubt, if it is found that the ekrarnama never came into operation by reason of circumstances which have not yet been explained, it is not obligatory upon the plaintiff to carry out its terms and the defendants are not entitled to enforce its terms. But if the ekrarnama is found to be an operative instrument, the next question will require consideration, whether by reason of what has subsequently happened, namely, the execution of the deed of trust on the 4th March 1906 and the execution of a mortgage in favour of the daughter of one of the trustees, the plaintiff has forfeited his right to the office of audhikary. This aspect of the case must be examined by the District Judge.
6. The result is that this appeal is allowed, the decree of the District Judge set aside and the case remanded to him in order that the questions just mentioned may be re-considered. If it is found that the ekrarnama never came into operation or that the ekrarnama is not otherwise binding upon the plaintiff, he will be entitled to succeed, and no question as to whether the plaintiff has or has not forfeited his right to the office of audhikary by reason of general misconduct can be investigated in the present litigation. The question of the effect of the execution of the trust deed and of the mortgage will arise for consideration, only if it is found that the ekrarnama is binding upon the plaintiff. The District Judge will be at liberty to take further evidence in elucidation of the questions raised; such evidence may be taken by himself or by the Subordinate Judge under his direction and submitted with his finding thereon. The costs of this appeal will abide the result.