Regular Appeal from a ??? passed by the Subordinate Judge of ??? the plaintiff's suit.
This was a suit for ??? of and for a declaration of ??? lands which were dedication to the ??? by then owner. Anupa Bye. ??? Ram Lall and his heir managers of the ??? that he and his heir should apples all the ??? of the lands to the service of the ??? the ??? of Rs. 10 per month the ??? of the ??? month for a ???. By an ??? than the ??? and appointment Ram Lall ??? and ??? to ??? condition and stipulations of the deed of endowment, and agreed that if he appropriated anything more than what was fixed for his expenses, “then the lady aforesaid (Anupa Bye), and after her death, the punch, the inhabitants of the said mohulla, shall be at liberty to appoint any other person as manager, and to have the works of religious services, and the management of the Thakoor-dowra, done by him. I and my representatives have not nor shall have any claim or dispute to raise.”
By a towliutnama, bearing date the 11th of November 1870, which recited the deed of endowment and the ikrarnama, and which stated that the services of the idol had been carried on honestly by Ram Lall, and, after his death, by his son Ramaput Tewari, that Ramaput Tewari died childless, leaving surviving Mussamut Junko Bye, his wife, and that she, being a “purdah” female, was unable to perform the services of the idol, it was declared that it was necessary to appoint a trustworthy person and the plaintiff was thereby appointed as manager of the endowment. This towliutnama was signed by five persons, who described themselves as the “punch” referred to in the ikrarnama.
Under this deed the plaintiff got into possession of some of the endowment lands, and he now sued for a declaration of right to the portion of which he was in possession, and to be put in possession of the remainder, which was held by Junko Bye and the other defendants, whom the plaint described as her lessees of the endowed property. The suit was dismissed in the Court below, and plaintiff appealed.
Baboo Amarendro Nath Chatterjee, for the Appellant.
Mr. C. Gregory, and Mr. M.L Sandel, for Respondent.
The Judgment of the Court (1) was delivered by
Garth, C.J:— We think that the Judge in the Court below was quite right that these cases. We do not see how the plaintiff can have ??? of suit, at any rate in the way in which he tries to enforce his claim. He does not ask, as one of the community interested in the proper performance of this religious endowment, to have the trust property administered, or to have any breach of trust, which may have occurred, rectified. What he asks is, to have a trust of the property, which he says has been improperly alienated from him, placed in his hands, and to be confirmed in his possession of the residue.
He founds his claim upon a deed of towliutnama, dated the 11th November 1870, which professes to be executed by a punch consisting of five persons, who are inhabitants of the neighbourhood; and he says, that these persons had a right to appoint him manager of the trust property, under an ikrarnama, which is said to have been executed by Ram Lall Tewari, the sebail of the idol, and the trustee of the endowed property, on in the day after the original endowment was made.
We entertain great doubt whether, under the circumsntances, the copy of the ikranama, which has been produced, is admissible in evidence at all. In fact there is considerable doubt whether the ikrarnama itself ever existed; but, even supposing the copy to be admissible, and supposing that the ikrarnama were actually executed by Ram Lall Tewari, as it professes to have been, we do not see how it assists the plaintiff's case. The ikrarnama purports to be a declaration of trust by Ram Lall Tewari, to whom the endowed properties were conveyed ??? sebait and trustee, stating that the conveyance had been made to him, and declaring that he would accept the trust, and would apply the profits of the estates, lands, monies, and so on, ??? the performance of the religious services, the distribution ??? food to travellers, and the like; that he would take Rs. 10 ??? month as his own remuneration, and pay Rs. 2 a month to ??? sweeper; that he would not spend any more than that amount on himself; and that, if he should appropriate any more ??? the sum fixed for his own expenses, then the lady the endowment, and, after her death, the punch, who to ??? the inhabitants of the Mohulla, were to be at liberty to ??? any other person as sebait and manager, and to have the ??? services and the management of the Thakoor-dowra ??? out by such person.
Now, in the first place, we consider that Ram Lall Tewari, who was himself nominated as trustee under the endowment, had no right to transfer his trust to any other person. There is ample authority for this position. But then, again, it is to be observed that he does not profess to transfer the trust to any particular person. He only authorizes a punch, which is to consist of all the inhabitants of the neigbourhood, to appoint somebody else. Even if he had a power to appoint another trustee to act for him, this clearly was not the proper way to exercise the power.
Then, again, even if he had a right to confer this power upon the punch, the instrument by which the present plaintiff is appointed is clearly insufficient; because it is signed by five persons only out of the whole neighbourhood. If this power was a good one, it must have been exercised by all the inhabitants, instead of which we find these five persons constituting themselves a punch, apparently without the consent of the neighbourhood, for the purpose of appointing the plaintiff as manager.
And, lastly, it does not appear that there has been any breach of the trust, such as would justify the plaintiff in bringing this suit. The only way in which such a suit could be brought, apposing there had been any such breach, would be as we have pointed out in the case of Kalee Churn Giri…Plaintiff; v. Golabi…Defendant., 2 C.L.R, 129, where we explained that in cases not coming within Act XX of 1863, the only way to bring a suit for enforcing the trusts of any religious endowment, is to sue in the name of some person or persons on behalf of himself or themselves, and all others interested in the due performance of the trust, ??? what breach or breaches of the trust had been committed, and asking the Court to give directions, by framing a scheme or ??? for the purpose of having the breach of trust rectified, ??? securing its being properly carried out in the future.
There is no reason why the present plaintiff, or any other ??? interested in this trust, should not bring another suit ??? form, if so advised; but, so far as we can see at present, ??? plaintiff has no right to call himself a trustee of the endowment or to have possession of the trust property; and certainly ??? no right to sue, as he has done, in these two cases. ??? appeals must be dismissed with costs.