ASSAM RAGHAVALU CHETTY Vs. PELLATI SITAMMA

JUDGEMENT

(1.) The question argued in this appeal is whether in a suit under Section 92 of the Code of Civil Procedure 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 the 3rd and 4th defendants who had teen joined by the plaintiffs on the ground that the lease granted to them by the trustees of the charity, defendants Nos. 1 and 2, was a breach of trust. It is well settled that in a suit under Section 92, a decree for possession could not be given against persons in the position of defendants Nos. 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 were obtainable against them. The decisions in Ghazaffar Husain Khan v. Yawar Husain (1905) I.L.R. 28 A 112 and in Collector of Poona v. Bai Chanchal Bai (1911) I.L.R. 35 B 470 were cited on one side and the Calcutta decision in Budh Singh Dudhuria v. Niradbaran Roy (1905) 2 C.L.J. 431 on the other. It seems to me that the view of Mookerji J. in Budh Singh Dudhuria v. Niradbaran Roy (1905) 2 C.L.J. 431 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 of Attorney- General v. Pretyman (1845) 8 Beav, 316 S.C. 50 E.R. 124 but I do not think they ought to be made parties against their will to a suit under Section 92 which may involve a great variety of other matters and cannot, to borrow the language of Order 1, Rule 10(2) of the Code of Civil Procedure 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 alienees of joint family property parties when the alienation is questioned. In such 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.

(2.) Two worshippers sued under S.92 of the Code of Civil Procedure 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. 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. Parthasarathy Aiyangar that on the finding of the District Judge that the leases in favour of the 3rd and 4th defendants 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 trustees and against ejecting persons in possession in a suit under Section 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 Clause (h) of Section 92 and I had in mind the observation of the learned Judges in Miyaji alias Mahomed Ghouse Sahib v. Sheik Ahmed Sahib (1908) I.L.R. 31 M. 212 at p. 214 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 XX of 1863 and not under the Code of Civil Procedure. I think Mr. P. Nagabushanam 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.