SIDHU SAHU Vs. GOPI CHARAN DAS

JUDGEMENT

(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.