SIDDHAN LAL Vs. GAURI SHANKAR

JUDGEMENT

(1.) This appeal arises out of a suit brought under Section 92 of the Code of Civil Procedure. The facts are these. One Ganga Din executed a document on the 2nd of June 1909 purporting to be a deed of gift of certain property belonging to himself in favour of the idol Sri Raugji Maharaj. By that document he clearly made an endowment of his property for the maintenance of the temple of Thakurji and also for the establishment of a Sanskrit patshala. He also provided in the document for other matters which the trustees nominated by him would have to carry out in connection with the endowment and declared what expenditure should be incurred in relation thereto. There can be no doubt that under this document an express trust was created for religious and charitable purposes. In this deed of trust he nominated himself as the first manager of the trust and named three persons, namely, Siddhan Lai, Raghubar Dayal and Jhamman Lai as his successor in the office of manager after his death. On the 2nd of February 1911 he executed another document under which he nominated Siddhan Lai, Jugal Kishore and Maiku Lai to be managers in the place of the three persons named above for the management of the endowment after his death. He also provided in that document that instead of a patshala being established the money pro. vided for the patshala should be spent in sadabart, that is, charity. The present suit was brought with the permission of the Legal Remembrancer by two members of the Hindu community for the removal of the defendants from the management of the property, on the ground that they had obtained the document of 1911 by undue influence from Ganga Din and that they w6re mismanaging the trust property arid had committed a breach of trust by omitting to perform the duties imposed upon the trustees by the maker of the trust. We may mention that Ganga Din died in 1912. The Court below has decreed the claim and made an order removing the defendants from the management of the "trust. It refused to appoint Raghubar Dayal and Jhamman Lal as trustee but made a reference to the Collector for the nomination of trustees and reserved to itself the power of appointing new trustees for the management of the trust. This appeal has been prefoerad by the defendants, and the first contention on their behalf is that this ease could not be instituted under Section 92 of the Code of Civil Procedure. They urge that if the plaintiff s contention is correct that the appointment of the defendants was not legally valid, they are trespassers and could not be sued under Section 92 as trustees. In our opinion this contention is untenable. No doubt Ganga Din, the maker of the trust, was entitled at the time of creating the trust to nominate the persons who were to be managers of the trust after the date of the creation of the trust and to provide for the appointment of further trustees. As has been already stated he declared that he himself would be the first manager (sarbarakar) and that after his death Jhamman Lal, Raghubar Dayal and Siddhan Lai should be the managers. It was not open to him after the trust had been created to nominate new managers who were to take his place after his death. Subsequently to the creation of the trust his position was merely that of manager and he was not competent to revoke the trust or alter it, or appoint new managers. Therefore, with the exception of Siddhan Lal, who is one of the trustees mentioned in the original deed of trust, the other two defendants are not men who have been validly appointed trustees or could be so appointed. They by their own admission have taken charge of the trust property not as trespassers but as managers of the trust, and, therefore, they must be deemed to be trustees de son tort. In our opinion Section 92 applies to the case of persons who are trustees de son tort. This was held by the Bombay High Court in Jugalkishore v. Lakshmandas 23 B. 659 : 1 Bom. L.R. 118 : 12 Ind. Dec. (N.S.) 440 and by the Calcutta High court in Budree Das Mukim v. Chooni Lal Johurry 33 C. 789 : 10 C.W.N. 581.

(2.) It is next urged that it has not been proved that the defendants have committed a breach of trust. It has been found by the Court below that the temple erected by Ganga Din in which the Thakurji was installed has not been repaired by the defendants and that it is in a hopelessly bad state of repair. According to the defendants own allegations they have not spent even Rs. 2 in repairing the temple. Under the terms of the document of the 12th of June 1909 Rs. 25 a year were allotted for repairs of the temple but no part of this money has been spent for that purpose, and the result has been that the temple is in such a condition that after a short time, unless properly repaired, it will cease to exist, Again under the terms of the trust a Sanskrit patshala had to be established. There is some evidence that in the lifetime of Ganga Din a small patshala was started with a small number of students, but by reason of his illness it was not continued. It was the duty of the trustees in the performance of what was incumbent on them under the terms of the deed of trust, to establish a Sanskrit patshala and to carry it on with the means at their disposal. This has not been done and this is another breach of the duties which the managers had to perform.

(3.) The defendants produced certain account books the genuineness of which the Court below has doubted. We have seen the account books and we are not prepared to say that the suspicions of the Court below as regards their genuineness are unfounded. The learned Judge has dealt with the matter at length and he has given other reasons for coming to the conclusion that the defendants have not carried out the objects of the trust and have not defrayed all the expenses which they were bound to do under the terms of the trust deed of 1909. We do not deem it necessary to go at length into those matters. We have considered the evidence on the point and agree with the findings of the Court below. We do not consider it necessary to decide in this case whether the document of the 2nd of February 1911 was obtained by undue influence. In our opinion Ganga Din was not competent to execute that document after having created a trust under the prior document of the 12th of June 1909. We think that the learned Judge came to a right conclusion in this case and this appeal must fail some objections have been preferred on behalf of the plaintiffs. One of them is to the effect that the learned Judge ought to have ordered the defendants to render accounts. We think that having regard to the circumstances the learned Judge exercised a wise discretion in leaving the matter open and directing that it would be for the new trustees to sue the defendants separately for accounts or for recovery of ornaments if they thought fit to do so.