The Judgment of the Court was delivered by
Wallis, O.C.J:— The question argued in this appeal is, whether in a suit under Section 92 of the CPC, for the removal of a trustee and the settlement of a scheme, the District Judge was right in dismissing the suit with costs as regards defendants 3 and 4, who had been joined by the plaintiffs on the ground that the lease granted to them by the trustee of the charity, defendants 1 and 2 was a breach of trust. It is well settled that in a suit under S. 92 a decree for possession could not be given against persons in the position of defendants 3 and 4, and it seems to follow that the contention of the appellants that a mere declaration might be given against them is unsustainable, as if any relief could properly be given against them in such a suit, there is no reason why it should be limited to a mere declaration and should not award possession as well. The question then is, whether they were properly made parties by the plaintiffs as no reliefs ward obtainable against them. The decisions in Gazaffar Husain Khan v. Yawar Husain(1) and in Collector of Poona v. Bai Chanahalbai(2) were on one side and the Calcutta decision in Budh Singh v. Niradbaran Roy(3) on the other. It seems to me that the view of Mookerjee, J., in Budh Singh v. Niradbaran Roy is right and that these defendants have been wrongly impleaded. If they had desired to be made parties, I agree that an order adding them might properly have been made: cf. Altorney-General v. Pretyman(4), but I do not think they ought to be made parties against their will to a suit under S. 92 which may involve a great variety of other matters and cannot, to borrow the language of O. 1, R. 10(2) of the CPC effectually and completely adjudicate upon and settle their rights. The case is very different from suits for partition in which, according to the settled practice of this Court, it is usual to make the aliences of joint family property parties when the alienation is questioned. In suck a case the Court completely adjudicates on and settles the whole matter. Here it is precluded from doing so. I would dismiss the appeal with costs.
Seshagiri Aiyar, J.:— Two worshippers sued under Section 92 of the CPC, for the removal of defendants 1 and 2 from the trusteeship of the plaint temple, for the settlement of a scheme and for other consequential reliefs.
2. The main allegation against them was that they improperly granted a lease of the temple properties to defendants 3 and 4 for a low rent and for an unconscionably long period. The District Judge found that defendants 1 and 2 committed serious breaches of trust during their management and directed their removal; he gave directions for the appointment of new trustees; and declared that the suit against defendants 3 and 4 should be dismissed with costs.
3. Plaintiffs have appealed. It was argued by Mr. M.O Parthasarthy Iyengar that on the finding of the District Judge, that the leases in favour of defendants 3 and 4, were not binding on the temple, he ought to have directed possession to be given to the plaintiffs on behalf of the temple. The decisions of all the High Courts are against giving possession to any but the lawful trustee and against ejecting persons in possession in a suit under S. 92. The learned counsel argues that even if possession cannot be given there should be a declaration embodied in the decree that the lease is not binding on the trust, so that the question may not be raised again by defendants 1 and 2. I was at first inclined to think that this relief may be given by the decree under Cl. (b), S. 92, and I had in mind the observation of the learned Judges in Miyaji alias Mahomed Ghouse Sahib v. Sheik Ahmed Sahib(5) to the effect “that the question to whom the possession is to be transferred is an incident of the declaration that the defendant is removed from the trusteeship.” On closely examining that case I find that one of the plaintiffs was a lawful trustee and that possession was directed to be given to him by the defaulting trustee. Moreover, the pronouncement of the learned Judges was under Act 20 of 1863 and not under the Code of Civil Procedure. I think Mr. P. Naghabushanam is right in his contention that a declaration against defendants 3 and 4 must stand on the same footing as a direction to give possession. I therefore hold that plaintiffs are not entitled to the declaration.
4. There remains the further question whether the Judge was right in holding that the suit against defendants 3 and 4 should be dismissed. This amounts to saying that they were not proper parties to a suit of this description. There has been a conflict of views upon this question. I shall first examine the provisions of the Code before dealing with the case law. Suits of every description are controlled as regards the array of parties by Or. 1 and 2. The fact that S. 92 provides for a particular class of litigation will not take it away from the purview of these orders. O. 1, R. 10, sub-Cl. (2), gives to the Court and to the party ample powers in this behalf. “The name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit may be added.” If the plaintiffs could have moved the Court under this order to make defendants 3 and 4 parties, I can see no objection on principle to their being impleaded therein at the outset. To my mind a more reasonable application of this rule cannot be had than by impleading persons in whose favour the defaulting trustee conveyed properties as defendants. It is said that he can be examined in the case as a witness. That will not enable the Court to give a proper decision. His witnesses also should be examined, and the arguments of his pleader should be heard, if a right conclusion is to be arrived at. It may and does very often happen that the trustee, after having alienated properties to others, feels no interest in upholding his alienation, and he may not choose to examine any witness. Moreover, the non-intervention of the alienee may result in a conflict of decisions. In the suit under S. 92 the trustee may be removed on the ground that he has made an improper alienation; and in a suit to recover possession, after hearing the alienee, it may be found that the alienation was binding on the trust. It is not necessary to avoid this possible conflict to hold that the decision under S. 92 will be res judicata in the subsequent litigation. I express no opinion on the question.
5. But certainly the judgment in the scheme suit will be one inter partes, if the alienee is held to be a proper party, and will be very strong evidence against him in the subsequent litigation. I am there fore of opinion that the proper course to adopt in cases where the alienation by trustee is in question is to implead the person in whose favour the alienation was made and to decide the case in his presence. Even if he is not a necessary party, have no hesitation in holding that he is a proper party. This view is supported by the observations of Sir John Stanley, C.J, in Ghazaffar Husain Khan v. Yawar Husain by the decision of the Bombay High Court in Collector of Poona v. Bai Chanchalbai and by that of the Calcutta High Court in Sajedur Raja Chowdhur v. Gour Mohun Das(6). Mookerjee, J. in a later case in Budh Singh Dunia v. Niradbaran Roy holds that alienees who have an interest adverse to the trust are not proper parties, and dissents from the view taken in Sajedur Raja Chowdhuri v. Ghour Mohun Das. The learned Judge for whose opinion I have the highest respect has not considered the effect of O. 1, R. 10, and I find that Harrington, J., who took part in the decision does not say that the alienees are not proper parties. The balance of authority therefore is in favour of the view I have taken. I have already said that in the interests of justice, and with a view to avoid a conflict of decisions, the alienee must be a party. For all the reasons I am of opinion that portion of the decree of the District Judge which directs the dismissal of the suit against defendants 3 and 4, should be set aside. I will make no order as to costs either here or in the Court below.
By the Court
6. As there is a difference of opinion, the decree of the lower Court stands and this appeal must be dismissed with costs.
S.N/R.K
7. Appeal dismissed.