PUTTU LAL Vs. DAYA NAND

JUDGEMENT

(1.) This appeal arises out of a suit brought by {he plaintiff-respondent for a declaration that the plaintiff was entitled to act as the Sarbarahkar of a certain temple and of the property appertaining thereto and for possession of the said properly. The allegation of the plaintiff was that he had been appointed Sarbarahkar of the said property and temple by Ganga Prasad, the founder of the trust, by a deed executed by him and registered on the 27 February 1801. By virtue of that deed Ganga Prasad had dedicated certain properly for the benefit of the temple which he had constructed in his lifetime and appointed himself a trustee for his life and nominated the plaintiff as his successor in that office. By a subsequent document, executed by him on the 22 May, 1919, he appointed his nephews as trustees after him. These nephews are the defendants to the present suit. They succeeded in getting mutation of names effected on the death of Ganga Prasad in the revenue papers. The plaintiff contended that the defendants had obtained the deed from Ganga Prasad under undue influence, but they failed to prove that allegation. The Courts below, however, decreed the claim of the plaintiff on the ground that, by virtue of the deed of waof of the 27 February 1901, Ganga Prasad had appointed the plaintiff as his successor in the office of trustee and that he had no power thereafter to appoint another man in his place. The view taken by the Courts below is supported by the decision in Siadhan Lal V/s. Gauri Shankar 40 Ind. Cas. 165. Ordinarily, the founder of a trust is entitled to provide for the management of the trust and to reserve to himself and his heirs the power to appoint trustees; bat if he exercise that power and appoints a trustee, the trustee can-not, be removed except in the manner laid down in Section 92 of the Cole of Civil Procedure.

(2.) The defendants entered into possession of the trust property under the subsequent dead executed by Ganga Prasad, by virtue of which they were appointed trustees in the place of the plaintiff. But Ganga Prasad had reserved no power to himself by the earlier deed to alter the scheme of management there laid down, and the subsequent appointment of other persons cannot, therefore, be upheld.

(3.) It is urged, on behalf of the defendants, that the suit ought to have been brought under Section 92 of the Civil P. C., bat that Section provides for the institution of a representative suit by the beneficiaries to secure the proper administration of a public trust either by the removal of the existing trustees or by the settlement of a scheme by which the object of the trust Lal be properly carried out. The removal of the trustees can be claimed on the ground of an alleged breach of trust, but no such ground is alleged here in regard to the defendants. All that is stated is that Ganga Prasad had committed a breach of trust by appointing new trustees in the place of the plaintiff. It is not stated that the defendants had committed any breach of trust. On the other hand, the suit is, as the Courts below point out, between rival claimants to the office of trustee. The plaintiff claims that office in his own right by virtue of the earlier deed executer by Ganga Prasad, The defendants claim the Some of the by virtue of a later dead, which, so far as it is inconsistent with the earlier one, is not enforceable. As painted out by Woodroffs, J., in the case of Budres Das Mukim Vs. Chooni Lal Johurry 38 C. 789 : 10 C. W. N. 581, in order to bring a case within the purview of Section 539 of the Code of Civil Procedure the suit must be a representative one, brought for the benefit of the public and to enforce a public right in respect of an express or constructive trust upon a cause of action, alleging a breach of trust or necessity for directions as to its administration against a trustee of such express or constructive trust. Such trustee may be a trustee de jure or a trustee de son fort. But if the suit id between persons, who individually claim a right to succeed to the office of trustee, Section 92 of the Code of Civil Proccedure has no application. The right here set up is a personal right to act in a particular office. In Muhammad Abdul Majid Khan V/s. Ahmad Based Khan 23 Ind. Cas. 37 : 35 A. 459 : 11 A. L. J. 679, it was held, in somewhat similar circumstances, that a suit by a person claiming to be a mutwalli of certain property against another who has taken possession of the same, did not fall within the purview of Section 92.