Meredith, J.:— This is an appeal by plaintiff from a decision of the learned Subordinate Judge of Gaya, dated 12th July 1938, confirming a decision of the Munsif of Gaya, dated 6th January 1938, dismissing the suit. For reasons which will presently appear, it is necessary to set out the allegations in the plaint clearly and in considerable detail. It is first stated therein that the plaintiff, Ramdas Bhagat, is the sole surviving member of a joint family and is in possession of the entire property of that family. One of the members of the family, the plaintiff's ancestor Jawahir Bhagat, founded and endowed a thakurbari in the town of Gaya and installed idols for himself and the members of his family. He appointed five persons as managers of the endowed property and one Gayadin Tewari as pujari, but no deed of endowment was executed. Later on, in 1907, the plaintiff's uncles Tulsi Bhagat and Ramchandar Bhagat and Gayadin Tewari (here the plaint is wrong: Gayadin Tewari did not join in the execution) executed a registered deed of endowment confirming the persons already appointed by Jawahir as managers and Gayadin Tewari as pujari (priest). One of the managers, Balgobind Ram, later dedicated a house for the benefit of the thakurbari but not in such a way as to alter the nature or status of the trust, which continued as a private and family charity with the accretion of the property dedicated by Balgobind Ram. It is next alleged (and this is important) that some time ago Gayadin Tewari died and his son, defendant 1 of the suit, took up the management of the affairs. Next it is alleged that though there were several trustees yet the thakurbari was managed in consultation with and under the orders of Jawahir Bhagat, Behari Bhagat and Tulsi Bhagat and this arrangement continued up to the death of the last of them.
2. Later, when the plaintiff came of age, he went on performing worship in the thakurbari but defendant 1 and also defendants 2 and 3 (a second son and a grandson of Gayadin) kept him in the dark regarding the thakurbari management. Gradually, however he learnt of all the circumstances and in 1934 he came to know that all the trustees, except Balgobind Ram, had died more than 10 years before and that the property of the thakurbari was solely under the control, and will of defendants 1 to 3 and they had been spending the entire income on their personal necessities treating the thakurbari as their own property and wasting the thakurbari properties; and Balgobind, the only surviving trustee, failed to oppose them being in collusion with them. The plaintiff, as heir of the founder and proprietor of the thakurbari, wanted if to be efficiently managed and that the work should be done according to the intention of the founder. With that intention he filed a petition to get his name recorded in place of Tulsi Bhagat in the papers of the Municipality, but on this defendants 1 to 3 became very much annoyed and induced defendants 4 to 7, who are connected with them and are their creatures, to file an objection petition in the mutation case claiming to be themselves trustees. The plaintiff's petition was rejected and the names of defendants 4 to 7 along with that of Balgobind Earn, who was then living, were recorded as trustees. The plaintiff then dismissed defendants 2 to 3 from the post of pujari and appointed another pujari but the defendants to the suit interfered; hence the necessity for the suit. Next it is alleged that in the dead of trust no provision was made for the appointment of further trustees after the death of the five trustees mentioned in the deed, and Balgobind Ram, the surviving trustee, had no power to appoint other persons as new trustees in place of the deceased trustees, and such persons as defendants 4 to 7 have no right to manage the thakurbari, and only the plaintiff as the heir of the founder is entitled to manage it. Hence after dismissing defendants 1 to 3 from the post of pujari and defendants 4 to 7 from the post of trustees, the plaintiff is looking after the administration of the thakurbari. Defendants 4 to 7 neither discharge the duties of trustees nor are they fit to do so. Defendants 4 and S. are big people and in ill-health and take no interest in the thakurbari and Nos. 6 and 7 are intimate friends of defendant 1. Hence they are neither fit to perform the duties of trustees nor do they perform them. For this reason on account of want of proper attention on the part of the aforesaid trustees (it is important to note this expression), there is absolutely no check on the embezzlement of the income of the thakurbari. Defendants 1 to 3 misspent the income on their own pleasure and paid no attention to the worship of the deities. They maintained no accounts and did not seek to augment the property of the thakurbari from the surplus income. They took part in all sorts of nautches and musical entertainments and other kinds of sports, spoiling the income of the thakurbari, and they kept undesirable persons in the thakurbari on account of which respectable persons and the ladies of the plaintiff's family and other ladies did not like to go there. Defendants 1 to 3 have also caused loss to the thakurbari by falsifying papers and by selling the ornaments and moveables of the deities.
3. It is then repeated that from these facts it is clear that neither defendants 4 to 7 are legally fit to continue as trustees (this expression is also to be noted) nor are defendants 1 to 3 fit to continue as pujaris. The plaintiff has full right to manage the properties personally. The plaintiff and his family have always been in possession and occupation of the thakurbari and in charge of the administration and the plaintiff as the heir of the founder is in possession and occupation and is the manager, and in this capacity, he has dismissed all the defendants from the posts of priest and nominal trustees. It is prayed that his action be upheld by the Court; hence this suit is instituted. Next there is a prayer in the following terms:
That the property and income of the thakurbari may not he wasted, a Receiver may be appointed by the Court who may look after the administration thereof.
4. Next, the cause of action is stated as arising on 1st August 1934, when the real affairs of the thakurbari were disclosed, and also on 4th April 1935, when the plaintiff's application for mutation and registration of his name in the Municipality was rejected, and on 19th Kartik 1343, when Balgobind Ram, the last trustee appointed by Jawahir Bhagat, died. The reliefs claimed are then set out. The Court is first asked to declare that defendants 4 to 7 have no right and authority to manage the thakurbari and that the allegation with regard to their being trustees is wrong and illegal and not binding upon the plaintiff, and also that a defendants 1 to 3 by reason of mismanagement, misappropriation of income and incapacity are not fit to act as pujaris and are fit to be removed from the office of pujari and have already been dismissed. Secondly, the Court is asked to hold and declare that there being no provision for the management of the thakurbari after the demise of Balgobind, the plaintiff as the heir of the founder is competent to manage the thakurbari directly or through somebody else. Next occurs the following prayer, which I consider it necessary to set out verbatim:
In spite of the fact that the plaintiff is in charge of the management and is carrying on the administration of the thakurbari as the heir of the founder of the thakurbari on the demise of the trustees named in the trust deed and due to the absence of any provision for the management of the aforesaid estate, still some arrangement may be made with respect to that portion which may be considered to be ‘unadministered’ in the opinion of the Court (italics mine) and ‘with that end in view, a Receiver may be appointed to manage the affairs of the thakurbari until the disposal of this suit.
5. Subsequently, a prayer was added for a permanent injunction restraining the defendants from interfering with the management and possession of the plaintiff. The plaint, as frequently happens in India, is a confused and badly drafted document. To some extent, in the interests of clarity and good English, I have paraphrased it, but where the wording is material to the determination of this appeal, I have quoted its own language.
6. The learned Munsif found that the trust was a public one, not private as claimed; that the plaintiff's story regarding his own management and possession and that of the previous members of his family was entirely false; that actually defendants 1 to 3 were working as pujaris and defendants 4 to 7 as trustees and that the allegations of misconduct, misappropriation, mismanagement and neglect were also false; that defendants 4 to 7 had been rightfully appointed trustees by Balgobind Ram and had also been elected by the public after Balgobind's death and that in any case they were trustees de son tort; that the suit was substantially one for the removal of the trustees or the trustees de son tort and of the pujaris, and as such, it was not maintainable under the provisions of Section 92 of the CPC, and Section 14 of the Religious Endowments Act, 1863. He held further that the suit was bad for defect of parties inasmuch as it appeared from the proceedings book of the thakurbari that after the death of Balgobind Ram, his son Rameshar Prasad was elected a trustee in his place, and as a matter of fact, he also along with defendants 4 to 7 had been managing the trust property and working as a trustee. Therefore he was a necessary party under the provisions of O. 81, R. 2 of the CPC, which prescribes that where there are several trustees, executors, or administrators, they shall all be made parties to a suit against one or more of them.
7. The lower Appellate Court endorsed all these findings with two exceptions. In his opinion the deed of endowment (Ex. 6) contained no provision for the appointment of new trustees upon the death of the original trustees. Defendants 4 to 7 therefore had not been validly appointed by Balgobind nor had they nor Balgobind's son been validly elected. All were therefore only trustees de son tort and the right of management did revert to the plaintiff as heir of the founder on the death of Balgobind, the last trustee. But it appeared from the deed that the wish of the founder was that a Board of Trustees should manage the affairs of the temple and its properties and also that no man of the founder's family should be on the Board of Trustees. Therefore the plaintiff had no right to take the management of the endowment into his own hands, and as heir of the founder, his sole right was to appoint a fresh Board of Trustees. Secondly, he held that only defendant 1 had been duly appointed pujari as the evidence showed, and that was also in accordance with the terms of the deed of trust which prescribed that Gayadin should remain as the karguzar for his lifetime and such one of his sons and heirs as might be considered fit to work as pujari should sub-sequently be appointed by the managers as such. Defendants 2 and 8 had no interest at all. He agreed however that the thakurbari was a public one, that the suit was essentially one for the removal of the trustees de son tort and the pujaris, and as such was not maintainable as it had not been brought under Section 92 of the CPC, that it was also bad for non-joinder of Balgobind's son Rameshar who was one of the trustees de son tort; and also that none of the charges of misconduct, misappropriation, etc. has been substantiated and the plaintiff had not proved that defendant 1 was unfit to act as pujari. Moreover, under the deed of trust, so long as a suitable man was available in the family of Gayadin Tewari, no stranger could be appointed as pujari and the plaintiff had no right to dismiss defendant 1 from his office.
8. In appeal, the finding that the trust is a public one is not challenged. But it is contended that in spite of that fact Section 92 of the CPC, has no application to the case since the suit is not founded upon breach of trust but is merely one between rival claimants, a case analogous to the case in 5 PLT 2311 where it was held that S. 92 had no application. The plaintiff asked for the removal of defendants 4 to 7 not on account of any breach of trust but simply because they had not been validly appointed. It is said that it is a simple case of each side denying the title of the other. It is true that there are allegations of at least sins of omission on the part of defendants 4 to 7, but these allegations are mere surplusage and not the ground put forward for removal. Secondly, it is argued that the lower Appellate Court was wrong in holding that though the right of management reverted to the plaintiff still he was not entitled to manage personally but could only appoint a Board of Trustees. Thirdly, it is argued that the lower Appellate Court was wrong in holding that the plaintiff is not entitled to dismiss defendant 1 from the post of pujari. Once it is found that he is a mere servant, the right of dismissal follows independently of proof of misconduct. Lastly, it is urged that O. 31, Rule 2, applies only in the case of trustees and not in the case of trustees de son tort. Rameshar is not therefore a necessary party, and in any case, the suit should not fail for defect of parties and Rameshar should, if necessary, be added as a party.
9. I propose to consider first the question whether Section 92 of the CPC, is applicable to this case, and it is for the purpose of determining this question that I have set out the allegations in the plaint in such detail, as in my opinion, the case really involves no principle of law and the decision depends entirely upon the facts set out in the plaint. I may say at once that I am clearly of opinion that a suit on the allegation contained in this plaint could lie, if lie at all, only under the provisions of Section 92 of the CPC. Four conditions are necessary in order to invoke the operation of S. 92: (1) the trust must be for public purposes of a charitable or religious nature, (2) the plaint must allege that there is a breach of such trust, or that the direction of the Court is necessary for the administration of the trust, (3) the suit must be not only in the interest of the plaintiff individually but in the interest of the public, or in the interest of the trust itself (for where the trust is a public one, the interest of the trust will be the interest of the public), and (4) the relief claimed in the suit must be one of the reliefs mentioned in the Section.
10. It is not disputed that in the present case the first condition is satisfied. There can, also, in my opinion, be no doubt that the second condition is satisfied. The plaint alleges breach of trust not once but many times. It is unnecessary to refer again in detail to all the allegations of misconduct on the part of the pujaris. Misconduct of the pujaris is made the misconduct also of the trustees since it is said that the pujaris were aided and abetted by the nominal trustees, and, as I have said, the trustees are further specifically charged with sins of omission, failure to supervise, and failure to check the mismanagement. It is true that it is sought to remove defendants 4 to 7 on the ground that they were not validly appointed. The plaintiff however was not content to rest his case on that basis alone. He had to go on to urge misconduct as an additional ground, and thereby, if in no other way, brought himself within the mis-chief of S. 92. I cannot agree with the argument that the allegations regarding breach of trust were mere surplusage. Beading the plaint as a whole, it is, on the contrary, clear that these allegations formed a substantial part, if not the most substantial part, of the plaintiff's claim for relief.
11. The matter is made plainer still if we consider the case of defendants 1 to 3, a point which was not touched upon in the arguments, but is, in my opinion, very important. The removal of defendant 1 at least is sought solely on the ground of misappropriation and misconduct. Now, though the Court may have found that defendant 1 was a mere servant, there can be no doubt that according to the allegations in the plaint, he also is a self-constituted trustee, that is to say a trustee de son tort. I need refer only to the allegation that on the death of Gayadin, defendant 1 took up the management of the affairs of the thakurbari; to the allegation in express terms that the property of the thakurbari was solely under the control and will of defendants 1 to 3, who had been spending the entire income on themselves and acting against the intentions of the founder of the thakurbari, Balgobind Ram being in collusion with them; to the allegation that it was defendants 1 to 3 who countered the plaintiff's move, when he applied for the mutation of his name, by setting up defendants 1 to 7, who were connected with them and were their creatures, to pose as trustees. These allegations may have been largely false, but when considering the application of S. 92, it is the allegations in the plaint alone that concerns us.
12. I would, moreover, go further than saying that the plaint alleges breach of trust. Though this point also was not made in argument, in my opinion, there is a clear statement in the plaint that the direction of the Court is necessary for the administration of the trust. I do not base this on the proposition, which may be doubtful, that a prayer for an injunction against the trustees de son tort is a prayer for a direction for administration. The matter is much clearer than that. There is an express statement in the plaint, which I have set out verbatim, that some portion of the estate may be considered to be unadministered owing to the absence of any provision in the deed for the management on the demise of the trustees, and a prayer is made that the Court may make some arrangement with respect to that portion which may be considered to be unadministered in the opinion of the Court. In my view there could not be a clearer case of asking for the Court's direction for the administration of the trust, in part at least. The plaintiff even goes so far as to ask that a receiver pendente lite may be appointed.
13. The third condition, in my judgment, is fully satisfied. This is no case of rival claimants fighting to assert their own interests. Defendants 4 to 7 have no personal claim at all. They are respectable people elected as trustees and acting as such to the satisfaction of the entire public, as found by the Courts below. As for the plaintiff, it is apparent from the plaint that he does not purport to sue on his own behalf but in the interests of the trust, and that is, as I have said, in the case of a public trust, synonymous with the interests of the public. Repeatedly it is stated in the plaint that the wishes of the founder are not being carried out; that the trust is suffering; and that not only the plaintiff and his ladies but also respectable persons and other ladies of the town do not like to visit the thakurbari. No doubt the plaintiff asks that the management should be handed over to him, but that is not for his own gain but in the interests of the trust itself, which is as he says, being mismanaged. No doubt he also (somewhat inconsistently) states that he himself is in possession and is managing the property. But that was clearly put in merely in the attempt to avoid the necessity of praying for consequential relief in addition to a declaration. That allegation was hardly serious in view of the other recitals in the plaint and both the Courts below have found it false.
14. There remains the fourth condition, which must be satisfied. Is the relief claimed one of those mentioned in the Section? Here I agree with the views of the Courts below that the suit is substantially one for removing the trustees de son tort. I agree with Sir Sultan Ahmad, who has argued the case for the appellant, that where the relief sought is the removal of a trustee, the prayer for removal must be based upon one of the conditions set out in the first part of the Section, that is the breach of trust or the necessity for the Court's direction. In other words, one of those conditions must be not merely alleged but alleged as the basis for the suit and if it had been sought to remove the defendants solely because they were not validly appointed trustees, then the mere fact that breach of trust had been alleged independently would not necessarily bring the suit within the terms of S. 92. But here the fact is, as I have said, that even in the case of defendants 4 to 7 the removal is sought not only on the one ground but also on the other, and in the case of defendants 1 to 3 the ground for removal is based solely on the allegations of misconduct, which would amount to breach of trust once it is held, as I have said, that the plaint describes these defendants also as trustees de son tort.
15. It is, of course, clear that though the suit purports to be for a declaration and an injunction, it is essentially and substantially for the removal of the trustees de son tort. The allegation that the plaintiff had not only the right of management but was also the actual manager in possession is not, as I have said already, to be taken seriously. It is admitted over and over again in the plaint that the de facto management is in the hands of the defendants. The prayer for injunction, therefore, is actually one for removal. In considering the application of S. 92, the Court must look to the substance of the claim and not merely to its wording: AIR 1926 Mad 1029;2 also AIR 1927 Mad 886.3 The suit is for the removal of trustees de son tort and not for the removal of legal trustees; for the removal of persons who are trustees de facto but not de jure. But that does not matter. It is well settled that S. 92 applies to such cases. In 27 IC 3894 it was laid down by the Court of the Judicial Commissioner of Oudh that a suit under Section 92 of the CPC, is maintainable as against a de facto trustee or a trustee de son tort, for he is subject to the same liability while he is so acting as a trustee de jure. This case follows 35 Cal 7895 a Calcutta case. The Allahabad High Court has also held in 40 IC 1656 that Section 92 of the CPC, applies to the case of persons who are trustees de son tort. The Bombay High Court took the same view in 23 Bom 659.7 The Allahabad High Court again took the same view in 69 IC 9908 holding that a suit under S. 92 will lie against a trustee de son tort; in other words, against a person who, without title, chooses to take upon himself the character of a trustee; and again in 84 IC 631.9 Similar also is the view of the Madras High Court in 78 IC 950.10 Lastly, our own High Court in 151 IC 13811 has held that if the defendant was a person who was not a trustee and purported to act as a trustee, he was a trustee de son tort and the removal of that person was the removal of a trustee within the meaning of Section 92 of the CPC. That the defendants in the present case are trustees de son tort and not mere trespassers cannot be doubted. They make no claim on their own behalf. They purport to be trustees. They claim not adversely to the trust but under it. They are, moreover, several times referred to as trustees in the plaint. I have no doubt in my mind that all the necessary conditions to invoke the application of Section 92 of the CPC, are present in this case. That being so, the suit, as presented before the Munsif was not maintain, able and the suit and appeal must fail on that ground. In this view, it is unnecessary to express any opinion on the other questions which have been raised. I would dismiss the appeal with costs.
Wort, J.:— I agree.
G.N/R.K
16. Appeal dismissed.