This Appeal arises out of a suit for a declaration that the Plaintiff was legally appointed Superintendent of a charitable and religious endowment, that his dismissal by the Defendants Nos. 1 to 5, the trustees of the endowment, and the appointment of the Defendant No. 6 as Superintendent by the said Defendants 1 to 5 were illegal and wrongful, for reinstatement of the Plaintiff in his post as Superintendent, and for a perpetual injunction restraining the Defendants from interfering with the rights and privileges of such Superintendent as provided in the deed of trust and for other reliefs.

The defence of the Defendants Nos. 1 to 5 inter alia was that the Plaintiff was appointed to act as Superintendent on 6th September, 1908 until further orders and subsequently on the 27th September, 1908 the Plaintiff was directed to furnish security to the extent of Rs. 5,000 at an early date, which he failed to do. The Defendants charged the Plaintiff with various acts of negligence and misconduct in the management of the trust estate, stated that his dismissal was imperatively called for, and pleaded that under the terms of the trust deed they had full powers to appoint and dismiss the Superintendent. The case having come on for settlement of issues, the Defendants contended before the Court below that assuming the truth of the facts as stated in the plaint, there was no case for the issue of an injunction. The Court below held that the suit as framed for an injunction could not be maintained, that it was unnecessary to try the question whether Plaintiff's dismissal from service was wrongful or without any just cause and that no issues need be framed for trial and accordingly dismissed the suit. The Plaintiff has appealed to this Court.

It appears that an arpannama or deed of trust was executed by one Brij Bhukan Lal Avasthi of Gaya on the 20th May, 1904. The deed recites that the donor divested himself of the properties mentioned in the schedule (the value whereof was estimated at two lacs of rupees) which were to form the subject of a religious and charitable endowment or trust to be called “Brij Bhukan Isca-Purta” “or Religious and Charitable Fund” and the whole of the net income thereof was to be appropriated to and expended for the religious and charitable objects set forth in the deed. Various provisions were made for carrying out the trusts. It was provided that there was to be a committee of five learned and pious Hindus who shall be the Trustees of “Brij Bhukan Ista-Purta Fund” and the Trustees shall have charge of the whole endowment and its properties and the appropriation of the income to the objects set forth in the deed. There shall be a Superintendent of the endowment who shall be the Secretary and Executive hand of the Trust Committee and whose salary shall begin at Rs. 60 per mensem and may be increased by gradual increment to Rs. 100 at the discretion of the Trust Committee and the salary of the Mutsuddi shall begin at Rs. 12 per mensem and may be increased gradually to Rs. 20 at the discretion of the said Trust Committee. The members of the Trust Committee shall supervise the management of the endowed properties by the zemindari amlas who were to work under the direct control of the Superintendent who was to follow the orders of the Trust Committee. The deed then lays down the duties of the Superintendent and provides that he shall not keep with him, for a long period, without reasonable excuse, any sum above Rs. 1,500 and he shall have no power to draw money from the Bank, that the Trust Committee alone shall have that power and at every meeting the Superintendent's account shall be examined by the Trustees, to whom the Superintendent is to submit a statement of the money necessary to be drawn from the Bank for meeting the expenses of the next month. Then the deed provides that the trustees shall have the power of appointing all officers of the endowment, including the zemindari Amlas, the Mutsuddi, the priest and other servants connected with the Thakurbati, the Pundits, the Kabiraj and all the servants connected with the Dharmasala, Path-shala and Arogyasala and after the death of the endower or after his relinquishment of the office of the Superintendent, they shall have also the power of appointing the Superintendent, that the Trustees shall cause the name of every Superintendent to be registered as a manager of the endowed properties and “Brij Bhukan Ista-Purta Fund,” by expunging his name or the name of the preceding Superintendent. The deed further provides that the Superintendent who may be appointed after the death of the donor or relinquishment by him of the office of the Superintendent, must give security to the extent of Rs. 5,000, and the Superintendent including the donor himself, so long as he shall act as such, shall manage the trust properties subject to the control of the Trust Committee. It appears that the Defendants Nos. 1 to 5 were appointed trustees and the founder himself acted as Superintendent during his life.

In the Court below, it was contended on behalf of the Plaintiff that the Superintendents service was one during good behaviour and that it amounted in its nature to a service for life. In this Court, it has been argued that under the arpannama there was a trust created in favour of the Superintendent and that the trustees have no power to dismiss him. The question for decision, therefore, is whether there was merely a contractual relation between the Superintendent and the trustees or there was a trust created in his favour.

It has been contended on behalf of the Appellant that having regard to the fact that the Superintendent is to be the Secretary and Executive hand of the Trust Committee, that the zemindari amlas are to work under the direct control of the Superintendent, that the Superintendent is to have charge of all monies and accounts, that he is to manage the trust properties subject to the control of the Trust Committee, that in case of emergency he has the power to convene an extraordinary meeting of the Trust Committee and at the close of every meeting he is to pay the fee and conveyance charges of each of the trustees present, that the name of the Superintendent is to be registered in the Collectorate as Superintendent of “Brij Bhukan Ista-Purta Fund” under the Land Registration Act, and that the donor himself was the Superintendent during his life go to show that there is a trust created in favour of the Superintendent and that he cannot be dismissed from office by the trustees when there is no provision in the deed for his dismissal. It was argued that the Superintendent was a part of the Trust Corporation and not a servant of the trustees. And in support of the contention that where there is a trust in favour of an officer of a Trust Corporation, the Court will interpose in a case of dismissal of such officer, reliance was placed on the Cases of Dean v. Bennett(1), Dugars v. Rivaz(2) and Willis v. Childe(3), and Tudor on Charities, pp. 221–222.

In the case of Dean v. Bennett, the deed of settlement of a chapel provided for the mode of dismissal of the minister, and the Court interposed as those provisions were not complied with in dismissing him.

In Dugars v. Rivaz, the French Protestant Church in London was founded in 1550 by Letters Patent of the Crown. The pastor, when elected, was presented to, and approved and instituted by the Crown. The governing body had, apart from the charter of incorporation, funds impressed with a trust in favour of the pastor. It was held that the Court, not-withstanding the rights of the Crown as visitor, has jurisdiction to see to the performance of the trust and to determine on the validity of the dismissal, and the Court, having come to the conclusion that it was not justifiable, granted an injunction to restrain the governing body from hindering the pastor in the exercise of his office. That case is distinguishable, as there were funds impressed with a trust in favour of the pastor.

In the case of Willis v. Childe, where a scheme provided that the trustees shall have authority from time to time upon such grounds as they shall at their discretion in the due exercise and execution of the powers and trusts reposed in them deem just from time to time remove the master of a Grammar School, it was held that a trust was created and that an improper removal of a mister would be restrained by injunction.

These cases show that where the relation of trustees and cestui que trust exist between a Corporation and one of its officers, the Court will interpose to prevent a breach of trust. On the other hand, in the case of Attorney General v. Magdalen College, Oxford(4), it was held that if, upon the true construction of the statutes of foundation, the school master and usher are officers appointed by the College or other Corporation and the duty of appointing them was not otherwise annexed to the mere property of the College than by the obligation to pay certain annual sums of money and is not of the nature of a trust but an obligation the observance of which, according to the statutes of the founder, is to be regulated and enforced by the visitor, then the breach of duty, whatever it may be, ought to be redressed by the visitor and not by the Court. In the case of Whiston v. The Dean and Chaptet of the Cathedral Church of Rochester(5), the master of a Grammar School appointed by the Dean and Chapter of a Cathedral Church, and which Grammar School was, by the statutes imposed by the founder, directed to be established and maintained from the endowments of such Church, was held not to be a cestui que trust of the stipend and emolument of the office, but to be only an officer of the Cathedral Church, appointed to perform one of the duties imposed upon it by the statutes. The Vice-Chancellor in delivering judgment observed: “For the purpose of the argument the founder is considered as saying that there shall be certain funds and certain officers payable out of those funds, such as a school master, choristers and others who shall fill various offices and perform various duties. All these persons apparently fall within the same category in point of description, although they are unequally paid, and their duties are not of equal importance. Unless it is to be argued that the janitor, for instance, on being discharged, may come to this Court and allege a trust in his favour and call upon the Court to decree accordingly, it may be difficult to say that the master, if he be within the same category, has a right to come to the Court and allege such a trust”. And after examining the cases and statutes the Vice-Chancellor said, “I cannot discover a ground for holding that the mister is a cestui que trust of the Cathedral Church only because he receives a stipend payable out of the common funds of the Defendants, which would not equally oblige me to hold that every officer mentioned in the statutes, to whom a livery and a stipend are given, is also a cestui que trust. The case of the Attorney-General v. Magdalen College is a direct authority in point; and I am satisfied on that authority.”

The ques ion depends upon the statute or the deed creating the foundation and we have to see whether in the present case, the arpannama creates any trust in favour of the Superintendent. The Superintendent, no doubt, is to be the Secretary and the Executive hand of the Trust Committee but he is to follow the orders and directions of the Trust Committee. He is to submit accounts to the Committee and he is to manage the trust properties subject to control of the Trust Committee. The trustees have the power of appointing all officers of the endowment including the Superintendent after the death of the founder. It was contended, however, on behalf of the Appellant that because a person is appointed or elected to his office by another, it does not follow that he can be removed from his office by the other and the cases of ministers of the Church appointed or elected were referred to by way of illustration. The power of appointment, we think, ordinarily involves a power of dismissal unless there is anything special in the nature of the office or the deed or statute under which a person is appointed shows the contrary. The case of ministers of the Church is a special one as all persons presented to ecclesiastical benefices are considered to be tenants for their own lives, unless the contrary is expressed in the form of donation. See Tudor on Charities, p. 338; Lewin on Trusts, pp. 588–589.

It was next contended that the position of the Superintendent is analogous to that of a shebait or a mutwalli and reference was made to the cases of Nanabhai v. Sriman Goswami Giridharji(6), Goswami Shri Giridharji Mahataj Shri v. Madhavdas Premji(7) and Gulam Hussein v. Aji Ajam(8). In the first two cases it appears that the succession to the office of the high priest was governed by the custom of primogeniture obtaining in his family, and the Plaintiff, the high priest (who was deposed from office and deported by the Rana of Udaipur within whose territories he resided), was held entitled to possession of that portion of the dedicated property which was at Poona, because if he was owner he had not lost his rights by the Rana's act, as the order could not affect property at Poona beyond his jurisdiction, and if he was a trustee he had not been removed by any competent tribunal. In the third case it was held that the rule of Mahomedan law that a mutwalli or superintendent of an endowment is removable for mismanagement does not apply to the case of a trustee who has a hereditary proprietary right vested in him. The case of Gajapati v. Bhagavan Das(9) was also relied upon. There in a suit by the representative of the founder to remove the Defendant from the headship of a Muth, it appeared that the usage was for the head of the institution for the time being to nominate his successor, and for the representative of the founder to sanction the nomination and invest the nominee with a sanad, on his installation, and that the Defendant had asked the Plaintiff to appoint him and had undertaken on his appointment to furnish him with accounts of the income and expenditure of the Muth. It was held that the Plaintiff was not entitled to remove the Defendant from office on the ground of his refusal to furnish accounts. But it was found in that case that the power of appointment which the representatives of the founder had, was a limited one and did not involve the power of dismissal. They had merely a power of sanctioning the choice of a successor, from among the chelas of the last head of the Muth, made by the head for the time being, and, according to the usages of the institution, the Defendant was under no legal obligation to render accounts to the Plaintiff. These cases, therefore, do not apply to the present case, and we do not think that the office of a shebait or mutwalli has any analogy to the office of the Superintendent in the present case.

Under para 19 of the arpannama the trustees have the power of causing the name of every Superintendent to be registered as a manager of the endowed properties and “Brij Bhukan Ista-Purta Fund” by expunging the name of the preceding Superintendent. Under sec. 3, cl. (b) of Act VII of 1876, B.C, ‘Manager’ means (among other persons) a person in charge of an estate, on behalf of a religious or charitable foundation. We think the Superintendent being the Secretary of the trustees who are to be five in number, his name for the sake of convenience is directed to be registered as manager. That does not show that there was any trust in his favour; on the other hand, the power of expunging the name of the preceding Superintendent shows, by implication, that the trustees have the power of removing him from his office. It was contended on behalf of the Appellant that if that paragraph were to be construed as giving a power to the trustees to remove a Superintendent they had equally the power to remove the founder himself who acted as Superintendent during his life and if that paragraph did not authorise his removal, it did not authorise the removal of any other succeeding Superintendent. But the case of the founder himself as Superintendent stands on a different footing from that of Superintendents appointed by the trustees after his death. The founder had not only the right of nomina ingand appointing the five trustees but he had the Tight of nominating and appointing some other fit person to fill up a vacancy caused by the death, resignation, misconduct, or non-attendance of the said trustees. It cannot be held that the trustees had the power of removing the founder acting as Superintendent when the founder had the power of removing the trustees themselves for misconduct or non-attendance. But the succeeding Superintendents have no such power. They are to get certain remuneration and to perform certain duties. The Superintendent is mentioned in para 17 of the deed where the trustees are given the power of appointing all officers of the endowment. We have already said the power of appointing ordinarily involves a power of dismissal, and it would be unreasonable to hold that although the trustees who have the charge of the whole endowment and its properties themselves can be removed for misconduct or for acting in contravention of the provisions of the deed of trust by a suit in the Civil Court with the sane ion of the Advocate-General as provided in the deed, the Superintendent who is subordinate and accountable to the trustees, cannot be removed and is to hold office for life. We think there is no express provision for removal of the Superintendent, because he is a servant of the institution. Generally speaking, a servant is one who for consideration agrees to work subject to the orders of another. A Secretary is also a servant and although the duties of the Superintendent are certainly of a higher order than the other officers, we think, taking all the provisions of the arpannarma into consideration, that there is no trust created in favour of the Superintendent and that there is only a contractual relation between him and the trustees. Now, a contract of service may be determined by the master and the only remedy for a wrongful dismissal would be by an action for damages. Suppose the Plaintiff refused to serve the Defendants, the Defendants surely could not compel him to serve them, if the trustees cannot prevent the Plaintiff from resigning he can have no right to compel the trustes to keep him. An agreement to serve cannot be specifically enforced. “The relation established by the contract of hiring and service is of so personal and confidential a character that it is evident that such contracts cannot be specifically enforced by the Court against an unwilling party with any hope of ultimate and real success and accordingly the Court refuses to entertain jurisdiction with regard to them”. See Fly on “Specific Performance of Contracts,” 5th Ed., p. 51. Sec. 54 in Ch. X of the Specific Relief Act provides that subject to the other provisions contained in or referred to by that chapter a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant whether expressly or by implication, and that when such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Ch. II of the Act, and sec. 21, cl. (b) in Ch. II of the Act provides that a contract which runs into such minute or numerous details, or which is so dependent on the personal qualifications or volitions of the parties or otherwise from is nature is such that the Court cannot enforce specific performance of its material terms, cannot be specifically enforced. Sec. 56 in Ch. X of that Act lays down that an injunction cannot be granted to prevent the breach of a contract, the performance of which would not be specifically enforced. The trustees have to supervise the acts of the Superintendents, but if the trustees have lost all confidence in the Superintendent, it is not possible for them to supervise his acts, if he is forced upon them. We need not discuss the question at length, because once it is found that there is no trust in favour of the Plaintiff we think there can be no doubt that a suit for injunction cannot be maintained. The learned Counsel on behalf of the Appellant did not dispute the proposition that if the Superintendent was merely a servant, he could be dismissed. It was contended however that the case could not be disposed of merely on a consideration of the question whether an injunction could be granted: there has been no consideration whether, in fact, there had been a proper removal of the Plaintiff from the office of Superintendent, there is nothing to show that there was any meeting of the Committee in which the question of the removal of the Plaintiff was discussed and in fact no evidence had been taken in the case. But even assuming that he had been wrongly dismissed, the only remedy, as we have already stated, is by an action for damages and the Court cannot compel the trustees to reinstate the Superintendent in his office, if he was merely a servant.

Lastly, it was contended that the Plaintiff was entitled, at any rate, to a finding that the appointment of Defendant No. 6 as Superintendent was illegal. But if the Plaintiff was merely a servant, he had no locus standi to question the validity of the appointment of Defendant No. 6. He is the son in-law of the founder but he is not bis heir. He would, therefore, have no right to question the appointment of Defendant No. 6 even if it were a private endowment. It is a trust for public purposes, and assuming for the sake of argument that a suit could be maintained for the purpose, it is not one under sec. 92 of the Code of Civil Procedure. Under the circumstances, we are of opinion that the decree of the Court below is right and the Appeal must be dismissed with costs.

Appeal dismissed.