Kotval, C.J.
1. The judgment in this appeal shall also govern the disposal of letters patent appeals Nos. 54 and 89 of 1964, application No. 1379 of 1964, miscellaneous civil application No. 51 of 1964 and civil revision application No. 1902 of 1964. All these matters relate to a public temple known as Shri Laxminarayan Bhagwan Mandir, which is a public trust. The origin and history of this trust and its properties is not very clear from the record of the proceedings before us and appears to have been lost in antiquity, but such facts as we have been able to ascertain and which are relevant for the purposes of the matters before us are briefly as follows:
2. The site on which the temple stands in Sholapur town was purchased by one Ramnarain Kashinath Singh on August, 5, 1890, The temple was then built on it and the idol of God Laxminarayan installed. On January 29, 1912, an Utsava was arranged for worship of the idol and at that time the person who arranged it was the priest Rangachari Ramanujachari. The temple followed the Ramanuja Sampradaya and in that persuasion it appears that there are two sects, the Tingle sect sect and the Badgal sect. Shri Rangachari belonged to the Tingle sect sect. Thereafter the history of this temple is somewhat obscure, but it appears that one Ganeshram Somani was its manager. Ganeshram Somani died in 1930 and was succeeded by Raghunathdas his son. Raghunathdas died in 1947 and was succeeded by Narsinghdas. Till this date it appears that there were really no disputes and that Narsinghdas Somani was a man of the confidence of the entire Sampradaya.
3. On August. 14, 1950, however, there came into force the Bombay Public Trusts Act, (Act XXIX of 1950), and that Act required that all public trusts must be registered by the trustees of the public trusts (vide Section 18). Accordingly, three applications for registration came to be filed before the Assistant Charity Commissioner and they were application No. 3/2485 of 1952 presented by Narsinghdas Somani, No. 3/3601 of 1952 presented by Sukhdev Raghunath singh and Vithaldas Badridas Bhattad who were the plaintiffs in the suit out of which appeal No. 573 of 1963 arises. A third application was also filed, though it was not separately numbered. The latter application was by one Motilal Ramnarayan. By that application Motilal claimed that the temple and its properties were a private trust of himself and his family members and that neither Narsinghdas Somani nor the plaintiffs in the suit had any right thereto.
4. For the purposes of the proceedings before us however' it is not disputed by any of the parties that Shri Laxminarayan Bhagwan Mandir at Sholapur is a public trust. The point of dispute between the parties is as to who should be its proper trustees. In the application filed by Narsinghdas Somani (No. 3/2485 of 1952) he had originally shown a certain number of trustees, but by a further application he had admitted that there were 16 persons as trustees. That application signed by Narsinghdas Somani is at exh, 128. When the matter came before the Assistant Charity Commissioner for the purposes of registration of the public trust other questions were raised. The Assistant Charity Commissioner held that the temple and its properties were undoubtedly a public trust. There was also a dispute raised before him as to the mode of worship adopted at the temple, but the view which the Assistant Charity Commissioner took was that that was a question which the contending parties could have settled in a civil Court. As to who .should be the trustees of this public trust, the Assistant Charity Commissioner negatived the contention raised on behalf of Motilal Ramanarayan that he should be the sole trustee because it was a private trust. The entire claim made by Motilal Ramnarayan was negatived and it was held that the temple was a public temple and Motilal had no right to be a trustee thereof. The Assistant Charity Commissioner appointed thirteen persons as trustees all of whom were named in the application (exh. 128) of Narsinghdas Somani, except three. One of the trustees whose claims were put forward was Rangachari Ramanujachari who, as we have stated, was the priest attached to the temple. It was claimed on his behalf that he was ah ex-officio trustee by virtue of his being the priest but that claim was negatived by the Assistant Charity Commissioner.
5. Against the order registering the trust there was hardly any complaint except on the part of Motilal Ramnarayan who appealed against the finding that the trust was a public trust. On the part of the other parties two other appeals came to be filed, appeal No. 133 of 1954 by Sukhdev Raghunath singh and Vithaldas Badridas Bhatad disputing the right of the Somani to be trustees and a counter appeal No. 145 of 1964 filed by Narsingdas Ganeshram Somani disputing that the plaintiffs had no right to be trustees. The Charity Commissioner who disposed of all these matters by a common order dismissed the appeal of Motilal and confirmed the finding of the Assistant Charity Commissioner that the temple and its properties constituted a public trust and, therefore, Motilal had no right to any part of the properties nor any right against the same.
6. As regards the other two appeals the Charity Commissioner discussed the question as to who were entitled to be the trustees of this public trust and came to the conclusion that upon the evidence it was not possible for him to find who had the legal right to be trustees, that is to say to be do jure trustees. But then the Charity Commissioner observed that there was no doubt from the evidence that various persons had in fact acted as trustees at various times not because they: had been appointed according to any rules or custom, but because they .had been 'present on the scene and in some way or the other associated with the management of the temple'. He, therefore, held that they were no better and no worse than de facto trustees. Having come to that conclusion the Charity Commissioner was not satisfied and he observed in his judgment that the proper thing to do in a ease of this kind was to see that a scheme was framed through Court for the administration of the temple and to prescribe among other things the manner of appointing trustees. Pursuant to that observation of the Charity Commissioner, we are now informed that the defendants have taken steps to that effect and that a suit for settling a scheme for the management of the temple or fixing the manner of appointing trustees is now filed and is pending before the District Judge, Sholapur, So far as the matter before him was concerned, the Charity Commissioner found that among the number of names of trustees mentioned before him six persons out of the list submitted by Narsinghdas Somani were de facto trustees according to all the parties. He, therefore, appointed them observing 'All parties agree that the following have been acting as trustees'. In addition the Charity Commissioner felt that Rangachari Guru Ramanujachari was also a de facto trustee and had been mentioned in every document produced before him as a de facto trustee and, therefore, he appointed him also. Thus upon the order of the Charity Commissioner seven persons same to be appointed as the trustees of this public trust.
7. The matter then went before the Extra Assistant Judge at Sholapur at the instance of the Somani who claim to represent Narsinghdas Ganeshram Somani who had passed away by that time-some time in 1959. The- Extra Assistant Judge, Sholapur, merely confirmed all the findings of the Charity Commissioner and dismissed the two applications before him. It may be noted at this stage that the third original applicant Motilal had not moved before' the Extra Assistant Judge.
8. The decision of the Extra Assistant Judge was given on August. 29, 1961, and on April 21, 1962 the suit out of which the present appeal arises came to be filed in the Court of the Civil Judge, Senior Division, at Sholapur.
9. The plaintiffs claimed possession of the immovable properties of the trust and actual possession of movable properties or in the alternative a decree for the amount of the price of the movable property. They also claimed damages of Rs. 1,000 from the defendants, for wrongfully depriving the plaintiffs of possession and management, and a declaration that none of the defendants are entitled to manage the trust properties and a permanent injunction against them prohibiting them from management or being in possession of the trust properties. The suit was filed in forma pauperis because the plaintiffs alleged that they had nothing with them belonging to the trust and were, therefore, not in a position to pay the Court fees. The plaintiffs claimed to file the suit in their1 capacity as trustees alleging that the trust properties had vested in them and they were entitled to their possession. They alleged that defendants No, 1 and 2 had illegally taken possession of the trust properties and started using and converting the properties of the trust and intermeddling with it. Defendant No. 3 was joined because he was a cousin of defendant No. 2 and defendant No. 4 was joined because he was the younger brother of defendant No. 1. It was alleged that defendant No. 1 claimed to intermeddle with the trust properties because he claimed that he was the Karta of the joint Hindu family of Narsinghdas Somani and had as such the right to be in possession of the trust properties-a claim which the plaintiffs denied in the plaint.
10. The defendants first of all challenged the right of the plaintiffs to sine on the basis that they were de facto trustees. Since they had no do jure right the defendants alleged that they could not file the present suit. So far as their own title was concerned, the defendants alleged that Narsinghdas Somani had rightly claimed to be. the hereditary sole managing trustee of the trust and its properties and that the defendants had the same right.
11. The Civil Judge, Senior Division, has decreed the plaintiffs' suit and has held that the plaintiffs were entitled to file the present suit as. trustees and that under the Bombay Public Trusts Act they had a right to file it, although they were merely de facto trustees. The view which the Civil Judge took was that there was nothing like tie facto or de jure trustees under the Bombay Public Trusts Act and one is either a trustee within the meaning of Section 2(18) of the Bombay Public Trusts Act or not. Since the plaintiffs were recognised as trustees by the Charity Commissioner and by the Extra Assistant Judge it must be assumed that they were trustees and had the right to file the suit. The Civil Judge has also held that so far as the defendants are concerned they have absolutely no right, title or in interest in the trust property. They were neither trustees nor can they be held to be managers of the trust. In short, the finding is that the defendants were purely trespassers.
12. [His Lordship after referring to points not material to this report, proceeded]. So far as the first appeal No. 573 of 1963 is concerned, the defendants in the suit are the appellants and the respondents are the plaintiffs. On behalf of the defendants-appellants, Mr. Venkat Varadachari though he did not accept the finding, argued on the assumption that the plaintiffs were cle facto trustees as held by the Charity Commissioner. He has raised two contentions on the basis of which he urges that the suit as framed could not lie at the instance of the present plaintiffs. The first point which he argued is based upon the provisions of Section 50 of the Bombay Public Trusts Act and he has urged that the present plaintiffs could not have filed the suit without the consent of the Charity Commissioner under that section. Secondly, he has urged that the plaintiffs have not based their suit upon any title whatever but all that they have claimed is that they were de facto trustees and recognised as such by the Charity Commissioner. Thus they have filed the suit only as de facto trustees. If so, they cannot file the suit because they have admitted in the suit that they have not been in possession of any part of the trust property. He has urged that the plaintiffs who claim to be de facto trustees will have no locus standi to sue since they admit that they are not in possession of any part of the trust properties. These are the only two points urged in First Appeal No. 573 of 1963 on the basis of which Mr. Venkat Varadachari has urged that the plaintiffs' suit should have been dismissed....
13. Turning to the point raised by Mr. Varadachari, Section 50 of the Bombay Public Trusts Act makes special provisions analogous to the provisions of Section 92 of the Code of Civil Procedure in regard to suits relating to public trusts. It contemplates three categories of suits in its opening clause which is as follows:
50. In any case-
(i) where it is alleged that there is a breach of o public trust,
(ii) where a direction is required to recover possession of a 'property belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from any person including a person holding adversely to the public trust, or
(iii) where the direction of the Court is deemed necessary for the administration of any public trust,
the Charity Commissioner after making such enquiry as ho thinks necessary or two or more persons having an in interest in the trust and having obtained the consent in writing of the Charity Commissioner as provided in Section 51 may institute a suit whether contentious or not in the Court within the local limits of whose jurisdiction the whole or part of the subject matter of the trust is situate, to obtain a decree for any of the following reliefs:-
Then follows a description of the nine categories of reliefs which can be asked for. The first proviso to the section is important for our purposes and it runs as follows:
Provided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust except in conformity with the provisions thereof.
14. Now, Mr. Varadachari has argued that the present suit was clearly a suit where the plaintiffs were seeking a direction to recover possession of a property belonging to a public trust or the trustees thereof or for an account of such property or proceeds from any person including a person holding adversely to the public trust, that is to gay a suit falling within Section 50, Clause (ii) Therefore, he urges that the permission of the Charity Commissioner was essential before the plaintiffs could claim to institute the suit. On behalf of the respondents it was pointed out that the section speaks of 'two or more persons having an in interest in the trust' and that the plaintiffs were not such persons; they were merely trustees already recognised as such and were suing in their capacity as trustees. To that the reply on behalf of the appellants was that 'Person having interest' is denned in Section 2(12) in such a manner that it would include the trustees. It was also urged that previously the definition was 'Peiraon having in interest means', but by the Bombay Act XXVIII of 1953 the sub-section was amended and instead of the word 'means' the word 'includes' is now substituted with the result that the trustee would be included because he would necessarily be included in the ordinary acceptance of the words 'Person having interest'.
15. The latter construction of the section was disputed on behalf of the respondents and reliance was placed upon a decision of a single Judge of this Court in Khemchand v. Parmanand (1961) 64 Bom. L.R. 235, where Datar J. held that the expression 'person having an interest' in Section 2(10) of the Bombay Public Trusts Act, 1950, does not include a trustee. That decision was given under the definition as it stood after amendment by the Bombay Act XXVIII of 1953, but the learned Judge did not notice the difference that has been brought about by substituting the word 'includes' for the word 'means', for at page 237 he observed:
The expression 'trustee' has been defined in the Bombay Public Trusts Act. It means; 'a person in whom either alone' or in association with other persons, the trust property vested and includes a manager.
In view of this change in the law which passed without any notice in that decision Mr. Varadaehari urged that the view taken by Datar J. in Khemchand v. Parmanand was no longer good law.
16. Now, in our opinion, it is unnecessary to go into all these questions, particularly the question as to whether on its language Section 50 applies in the present case and. as to the proper construction of the said phrase 'Persons having an interest' occurring in that section, for, in our opinion, the present suit is not a suit which would fall within the category of cases contemplated in a, 50. When the law relating- to public trusts was separately codified as the Bombay Public Trusts Act, it became necessary to include in it a provision analogous to that contained in Section 92 of the Code of Civil Procedure which did not apply to religious and charitable trusts. Its provisions were never intended to act as a curb upon the normal powers of trustees in the matter of instituting suits. Heetion 50 itself confers the right upon two or more persons having an in interest in the trust to file a suit whether contentious or not to obtain certain stated reliefs which are to be found mentioned m Clauses, (a) to (h) of the section. In terms the section does not speak of trustees at all and prior to the amendment of the definition in Section 2(10) by substituting the word 'includes' for the word 'means' the appellant could not reasonably have contended that the word 'trustee' means 'person having an interest'. It was because of the amendment made by the Bombay Act XXVIII of 1953 that the appellants have been enabled to raise the contention that 'trustees' will be included within 'persons having an interest' under Section 2(10) and therefore 'trustees' would be included in the category of 'two or more persons having an in interest in the trust' as mentioned in Section 50. Whatever may be the effect of the amendment, it is clear that the section is in the first place both a protective as well as an enabling section. It protects public charities from frivolous suits being brought by persons interested by interposing the condition that the consent of the Charity Commissioner must be obtained. At the same time, it enables two or more persons interested to sue subject to the limitations laid down in the section. That is a necessary safeguard in case the trustees of a public trust fail in their duty to safeguard the property of the trust. The question is whether having: regard to the purpose and object of the section, it was intended to bar every other suit which a trustee could undoubtedly bring as the legal' owner of the property unless the conditions of Section 50 are fulfilled, In our opinion, that was not the intention behind Section 50.
17. Normally a trustee as the legal owner of the trust properties has all the rights inherent in a natural owner of property and can sue to recover trust property. That right we do not think was. at all intended to be affected by the provisions of Section 50. But what Section 50 purported to do was to confer upon two or more persons interested in trust property, not necessarily the trustee, the right to move to protect the trust property in the event of the trustees failing to do so. The provisions of Section 92 of the Code of Civil Procedure are analogous to the provisions of Section 50 and prior to the present Code of Civil Procedure, the relevant section in the old Code of Civil Procedure (Act XIV of 1882), was Section 539. The separate right of a trustee de hors the provisions of Section 539 to file a suit for the protection of trust properties was recognised in an early Madras case viz Nellaiyappa Filial v. Thangama Nachiyar. I.L.R (1897) Mad. 606. In that case the trustee of a temple had sued to recover from the representatives of a trustee of a fund constituted for special purposes in connection with the temple worship, a sum of money misappropriated by him and to obtain the appointment in his place of himself or some other fit person. The trustee had sued without leave being obtained under Section 539 of the Code of Civil Procedure. An objection was taken to such a suit being filed. The circumstances were thus similar1 to those in the present ease. Here also the defendants have undoubtedly no right, title or in interest in the trust property and the persons who are suing are suing in their capacity as trustees. The Division Bench pointed out that the plaintiff in that ease was a general trustee of the temple and as such held a special position in regard to the protection of its interests and observed (p. 408) :.In that character it was not only his right, but his duty to see that the temple funds in the hands of special trustees were duly appropriated... and even before the enactment in 1877 of the provision now embodied in Section 339 of the Civil Procedure Code he would have been entitled to resort to the ordinary courts to enforce the obligations of the special trustees, and to obtain all appropriate relief for the protection of the interests of the temple, We do not think that such right was intended to be affected by section G39 of the Civil Procedure Code If that section were held to apply to the case of a person in the position of the present plaintiff, the rights which he had prior to the enactment would be seriously restricted, inasmuch as the exercise of his rights would be made dependent on the sanction of the Advocate. General or Collector as the case might be. It is difficult to believe that special rights of the character in question were intended to be so restricted.
We agree with the learned Advocate-General that the section was intended to apply to persons who, before its enactment, had, or were believed to have, no right to take proceedings for the purposes mentioned in the section, and in their case the limitation requiring previous sanction for the suit was one that was necessary to prevent an abuse of the powers conferred.
18. The principle involved in Nellaiyappa, Pillai's case was affirmed by a Full Bench of the Madras High Court in Tirumalai Devasthanams v. Krishnayya. A.I.R [1943] .Mad. 466. It was observed at page 469 as follows:
After hearing the arguments of learned Counsel in the present case we can see no reason for disagreeing with anything said in Shanmukham Chetty v. Govinda Chetty (1938) Mad. 39. On the other hand we find ourselves in full agreement with the opinion of Varadachariar J. that in deciding whether a suit falls within Section 92 the Court must, go beyond the reliefs and have., regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit is brought....The trustees of the Tirupati temple, qua trustees, have the right of recovering from the trustees of the temple at Moolki moneys which those trustees have collected on behalf of the Tirupati temple and this right is entirely independent of Section 92....The plaintiffs are not seeking to control the manner of collection or the duties of the respondents which are peculiarly theirs. They are merely seeking to get from the respondents what the respondents hold on behalf of the plaintiffs. In these circumstances, we consider that Section 92 has no application here and we answer the reference in this sense.
19. In O.RM.O.M. SP. (Firm) v. Nagappa Chettiar (1940) Bom. L.R. 440the plaintiff was suing on behalf of two religious charities. His deceased father was interested to recover from the plaintiff's uncle two amounts of Rs. 10,000 each which had been wrongly credited to the personal account of his uncle after they had been first credited to the accounts of the religious charities. A similar objection was raised that the plaintiff could not bring the suit without the consent of the Advocate-General under Section 92 and their Lordships of the Privy Council negatived the contention as follows (p. 449) :
It was suggested in the course of argument that the suit should only have been brought with the consent of the Advocate General under Section 92 of the Civil Procedure Code, but their Lordships think it clear that no such consent is necessary in order that a trustee may recover trust property in the hands of a stranger to the trust.
Budree Das Mukim v. Chooni Lall Johurry I.L.R. (1906) Cal. 789, where Mr. Justice Woodroffe analysing the provisions of Section 92 observed (p. 802) :
Then has this section done away with or affected rights of suit, which existed prior to and independently of it. I think not. If an individual could have sued before, he can, in ray opinion, do so now.
and at page 803,
I think the argument addressed to me by learned Counsel for the plaintiffs is sound, namely, that the section is not restrictive, but cumulative in its effect. Its action is shortly this. As regards parties it confers a right on certain persons, who had none before, namely, the Collector or other public officer such as the Legal Remembrancer in Allahabad....It is therefore entirely enabling as regards such persons. As regards the general public interested, it is enabling in this sense that two persons may now sue, where it would have been necessary before that all should sue or that some should obtain leave to sue on behalf of the rest. To this special privilege it annexes a condition to prevent wasteful suits in that it requires that sanction should be obtained.
In that case a curious contention was also advanced that Section 92 would not apply as the defendant in that suit was a mere trespasser and not a trustee and it was answered at p. 805 as follows;
There is no doubt but that claims by trustees against persons, who are strangers to the trust and who set up a title hostile thereto, such as alienees and mere trespassers holding adversely thereto, are not within the section.
In Vishvanath Govind Deshmane v. Rambhat I.L.R. (1890) 15 Bom. 148, the same view was taken, in a case where the trustee was suing persons who were not at all entitled to the property sued for and it was held that the case was not covered by Section 92. See also Kashinath v. Ganguhai. : (1930)32BOMLR1687 .
20. Considerable stress was laid by Mr. Varadachari upon the first proviso to Section 50 which says that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust except in conformity with the provisions thereof, It seems to us that the proviso must be read in the light of the totality of the provisions of Section 50 itself. It is a settled rule of construction that the proviso to a section cannot enlarge its scope and that its proper function is merely to carve out an exception from the general rule laid down in the section. What Mr. Varadachari argues is that having regard to this proviso if a suit is filed in which reliefs claimed come within the reliefs (a) to (h) mentioned in Section 50 and those reliefs are in respect of any public trust, then Section 50 would apply in every case. We do not think that the proviso to a section can enlarge the scope of the parent section. We must, therefore, limit the operation of the proviso to what is the true meaning of the main provisions of Section 50. We have already indicated that though Section 50 is couched in somewhat wide language, it is clear from the authorities to which we have referred above that it is 'not restrictive but cumulative.' It only enables persons having an in interest to sue and does not prohibit any suits being filed by trustees or public trusts. The trustee who is in the position of a legal owner of property can sue to recover the property from persons in the position of the defendants who are without any right, title or in interest in themselves, (and it must be emphasised here that though Mr. Varadachari has challenged the finding that the defendants are trespassers and have no right, title or in interest whatsoever there was very little that could be shown to the contrary) without obtaining any previous sanction.
21. Mr. Varadachari relied upon a decision in Balahrishna Odayar v. Jagannada Ohariar. (1924) 48 M.L.J. 534. In that case a suit had been filed by one trustee along with another person against the other trustees and it appears that there were quarrels between the trustees each charging the other with mismanagement and suppression of accounts. What was argued there was that Section 92 prevented the plaintiffs from suing and that contention was negatived. We do not think that decision can at all apply to the facts of the present case. The principles laid down there depended upon the peculiar facts of that case. The defendants, here are not trustees but trespassers. Mr. Varadachari also relied upon a decision of a Division Bench of this Court in Hansraj Laddashet v. Anant Padmanabh I.L.R (1918) 42 Bom. 742: 20 Bom. L.R. In that case again the position was the reverse of the position as it exists in the present suit. There the plaintiff' who was the heir of the original donor, a newly appointed Muktesar of a temple, sued the trustees of the endowment and the other superseded Muktesars for possession of the moveable and immoveable properties, for mesne profits and for accounts, and it was held that the suit fell within the scope of Section 92. That was not a suit like the present one where the trustees are suing complete strangers or persons without any right, title or in terest. It was specifically held in that case that Section 92 applied because the defendants were not in the position of strangers but were trustees and claimed as such to be entitled to hold the lands from generation to generation subject to the due fulfilment of the trust. At p. 751 Mr. Justice Shah pointed out:.Taking the plaint as a whole, it seems to me that it is a suit for the removal of the defendants from their position as trustees, for the restoration of the trust property to the plaintiff as the Muktesar appointed by the Temple Committee, for taking accounts, and for damages for their wrongful acts as trustees, Such a suit would be clearly within the scope of Section 93 of the Code.
He further went on to say :
This is not a suit against strangers as contended by Mr. Murdeshwar. It is not necessary to refer to the decisions cited by him. The question is whether in the present suit the defendants are in the position of strangers. In my opinion they are not. They are really trustees under the documents referred to in the plaint, and they claim to be trustees...
The ratio decidendi of that ease, therefore, cannot apply in the present case. We hold that the suit filed by the respondents did not fall within the ambit of Section 50 of the Bombay Public Trusts Act and it was not necessary for the plaintiffs to obtain sanction from the Charity Commissioner1 before filing the suit.
22. Then we turn to the second objection regarding the maintainability of the suit. The objection is based upon the findings of the Charity Commissioner which findings were confirmed by the Assistant Judge and have been accepted by the trial Court viz. that the plaintiffs were in the position of de facto trustees and, therefore, ought to be recognised as trustees under Section 19(iv) of the Bombay Public Trusts Act. The point argued is that the right under which the plaintiffs are claiming in the present suit is only a right of de facto trustees, that is to say of persons who were somehow connected with the management of the temple but who have no legal right in them. They are not de jure trustees and being out of possession they cannot sue merely as de facto trustees. Mr. Varadachari in this connection emphasised the averments in the plaint. In the plaint, however, the plaintiffs do not say that they are claiming only as de facto trustees. In para. 6 they have stated 'At present the plaintiffs are, therefore, the only trustees of the trust. The trust properties vest in the plaintiffs. They are entitled to possess the said trust properties and manage the trust'. So far as the defendants are concerned, the plaintiffs have alleged that the defendants have no right whatever to withhold the trust property from the plaintiffs or to manage the trust or its property; that the defendants' possession and management of the trust and trust property is unauthorised and/or illegal and/or that of trespassers. (See para. 6).
23. As regards possession of any part of immoveable or moveable property of the trust, no doubt the plaintiffs have not alleged that they are in possession. All that they have said is (para. 3) :
The said Narsingdas was in possession of the trust property and he also managed the trust during his life time, illegally without the consent of other co-trustees. He died on or about 12-9-1959. Immediately on his death defendants 1 and 2 took possession of the trust property, started using or converting the receipts belonging to the trust and intermeddling with it.
The suggestion in this averment undoubtedly is that the plaintiffs were in joint possession so long as Narsingdas was alive, because they say 'He (Narsingdas) also managed the trust during his life time illegally'. Be that as it may, however the allegations of the plaintiffs are undoubtedly very vague in this respect and, therefore, we will assume as Mr. Varadachari desires it to be assumed that there is no allegation that the plaintiffs were in possession of any part of the immoveable or moveable property of the trust: This is especially so, since in para. 12 in showing cause why they are entitled to sue in forma pauperis they have made a somewhat damaging statement that they do not possess any assets of the trust with them and that they have nothing with them belonging to the trust. The question is whether even so and upon the plain allegations the plaintiffs could not have sued the defendants in the suit for return of the temple property.
24. It is an important circumstance that the plaintiffs were recognised as trustees not only by the Assistant Charity Commissioner but in appeal by the Charity Commissioner and by the Assistant Judge. It has also been so found upon the evidence by the trial Court. We have already shown that the Charity Commissioner found that upon the evidence before him he could not come to the conclusion as to who were the de jure trustees, that is to say who were legally 'entitled to the trust property. What he found was that there were various persons who had acted as trustees at various times, not because they were appointed according to rule or custom but because they were actually present on the scene and in some way or the other associated with the management of the temple. Therefore, he observed that they were no better and no worse than de facto trustees.
25. Now, whatever were the reasons which impelled the findings of the Charity Commissioner, what the law required him to find is laid down by Section 19 of the Bombay Public Trusts Act. Clause (iv) of Section 19 requires him to find inter alia 'the names and addresses of the trustees and manager of such trust'. It was that enquiry and that alone which the Assistant Charity Commissioner and in appeal the Charity Commissioner were enjoined to make. In arriving at that finding, they discussed the evidence and found that there was no evidence of de pier title but only of de facto possession. However, all the authorities held that it was sufficient upon the basis of de facto position to hold that these persons must be trustees. The proper conclusion, therefore, which the Charity Commissioner as well as the Assistant Judge reached and indeed could in law at all reach, was that the plaintiffs were the trustees. Whatever else they may have said in reaching that finding was, in our opinion, merely by way of reasons given for that finding. It is the finding of the authorities that will operate and not the reasons.
26. We may also point out that so far as the Bombay Public Trusts Act is concerned, there is a special meaning attached to the word 'trustee' and not the meaning which the Trusts Act gives or which is attached to it in common parlance. 'Trustee' is defined in Section 2(18) to- mean 'a person in whom either alone or in association with other persons, the trust property is vested and includes a manager'. The word 'vested' may be noticed. The definition does not say in whom the trust property is legally vested, but merely that it is vested for the time being, that is to say, persons who would be legally in possession thereof as against having title thereto. But apart from that the definition includes 'a manager'. In other words, a person who is a manager or is somehow connected with the management of the trust is himself the trustee. In view of this artificial definition of the word 'trustee' in the Bombay Public Trusts Act we can see nothing wrong in the finding of the Charity Commissioner and of the Assistant Judge that the plaintiffs were trustees.
27. Mr. Varadachari sought to meet this, argument by further pointing to the definition of 'manager' in Section 2(8) of the Act where 'manager' is defined as meaning 'any person (other than a trustee) who for the time being either alone or in association with some other person or persons administers the trust property of any public trust and includes... ' (with the rest of the definition we are not here concerned). What Mr. Varadachari has emphasised is the expression 'for the time being'. He urges that if the plaintiffs were trustees because of the definition in Section 2(18) which includes 'a manager', then 'manager 'means any person who for the time being is in possession of trust property and that would show that the plaintiffs, were in no better position than being merely temporary custodians of the property, that is to say no better and no worse than de facto trustees, with the result that the position would still remain the same even having regard to the definitions, in Sections 2(18) and 2(8). In the first place we must point out that the expression 'for the time being' cannot be read isolated from its context and the expression as used in Section 2(8) is 'who for the time being either alone or in association with some other person or persons, administers the trust property of any public trust'. The Charity Commissioner found that the plaintiffs were at some time or- another connected with the administration or management of the trust property. Therefore, they would be trustees. But apart from all this, the definition in Section 2(18) says that a trustee is a person in whom the trust property is vested, A person may not be in possession of trust property and yet the property may be vested in him. Since the plaintiffs have been declared as the trustees under Section 19(iv) of the Act the trust properties would vest in them, though they may be temporarily out of possession. To that extent, therefore, they would be entitled to sue for the possession of the said properties.
28. We are also in agreement with the trial Judge when he holds that even a de facto trustee can sue for the possession of the trust properties from persons who have no right, title or in interest thereto. Mr. Varadachari relied upon a decision of the Madras High Court in Sankaranarayanan v. S.P. Templet. A.I.R [1949] Mad. 721. The facts of that case are not very clear from the judgment of Chief Justice Rajamannar or of Mr. Justice Vishwanatha Sastri. It appears that the plaintiff Devasthanam's. right in that case was mainly based upon a consent decree, the effect of which was in doubt, but the learned Chief Justice observed that it was not necessary to advert in detail to the terms of the razinama, because the subordinate Judge had not gone into the merits of the plaintiff's case and the plaintiff had pleaded an alternative basis for its claim, namely that 'even though the compromise decree did not confer any title on it, the plaintiff Devasthanam was entitled to file the suit as a de facto trustee'. The decision on that contention was that the plaintiff would be entitled to maintain the suit if the plaintiff could prove that it was in possession and management of the temple and its other properties and, therefore, was its tie facto trustee (vide para, 11 of the judgment of Chief Justice Rajamannar). Mr. Varadachari, therefore, strongly relied upon this decision to urge that in order that a person may be a de facto trustee and be entitled to maintain a suit for possession of trust properties, he must be in possession and management of the temple and its properties. No doubt upon the particular facts of that ease the Full Bench held that that ought to be found before the plaintiff could sue, but if one turns to the body of the judgment one finds that the view which the Full Bench accepted was that it was not necessary that there must be any title inherent in a trustee before he can sue. In fact at page 722, Chief Justice Rajamannar prefaced his whole judgment with the remark 'It will be seen from an examination of some of the decided cases that the right of a person other than a de jure trustee to maintain a suit for possession of trust properties cannot be decided in the abstract and depends upon the facts of each. case'. On the same page Chief Justice Rajamannar referred to the decision in Appasumi v. Bantu Tevar A.I.R [1932] Mad. 267, and to the view of Ramesam J. with approval. That view was: ' It has been held in several cases that a de facto trustee can maintain a suit to recover trust properties...a de facto manager of a trust should be allowed to maintain a suit which is for the benefit of the trust in spite of some defect in his title as trustee'. The learned Chief Justice has stated in the earlier passage in para. 6 that a de facto trustee could maintain a suit to recover properties belonging to the idol or the institution, on behalf of the idol or institution 'provided that such a person was able to prove that he was in exclusive possession of the office of manager or head of the institution, though he may not be able to establish his legal title to it' (the italics are ours). In para, 10 the learned Chief Justice stated the reason behind the rule and he said:
The rationale of the rule permitting a 'de facto trustee' in possession and management of a temple or a mutt to bring a suit for the recovery of properties belonging to the institution and to take such other action as may be necessary in the interests of the trust can be stated thus in the words of Wadsworth J. in Subramania v. Srinivasa Rao : AIR1940Mad617 .
It is the duty of the Court to protect trust property from misappropriation and diversion from the objects to which it was dedicated. When trust property is without a legal guardian owing to any defects in the machinery for the appointment of a trustee or owing to the unwillingness of the legal trustee to act, it would be a monstrous thing if any honest person recognised as being in charge of the institution and actively controlling its affairs in the interests of the trust should not be entitled, in the absence of any one with a better title, to take those actions which are necessary to safeguard the objects of the trust.
29. If that is the principle on the basis of which de facto trustees are allowed to sue we can see no reason whatever why the plaintiffs in the present suit should not be allowed to sue. 'We may emphasise here the words- of Wadsworth J. from the passage quoted above, 'in the absence of any one with a better title'. It is clear that so far as the defendants are concerned, they have no right, title or interest. The trial Judge has held them to be trespassers-a finding with which we entirely agree. As between the plaintiffs and the defendants it is the plaintiffs who at least have a right as de facto trustees and in the words of Wadsworth J. it would be a monstrous thing if such persons recognised as being in charge of the trust property should not be entitled, in the absence of any one with a better title, to take those actions which are necessary to safeguard the objects of the trust.
30. Another decision relied upon was Harilal Ranchhod v. Gordhan Keshav. I.L.R (1927) 51 Bom. 1040, 29 Bom. L.R. 1414. That, however, was a ease where a separated uncle of a Hindu minor who had never acted as a guardian of the minor was held not entitled as a guardian de facto to sell property on behalf of the minor. In the first place that is not a case pertaining to a trust or trust property and in the second place in that ease the person who claimed to be de facto guardian had absolutely no connection whatever with the property of the minor prior to the time when he claimed to sell it. Therefore, it was held that he could not be a de facto guardian. That is not the position here. The plaintiffs were found to have had connection with the management of the trust properties for a considerable time. The case in Harilal Ranchhod v. Gordhan Keshav can have no application here.
31. The other case referred to by Mr. Varadaehari was Chinna Alagumperumal Karayalar v. Vinayagathammal. : AIR1929Mad110 . That was also a case where a person claimed to be a de facto guardian of a minor. But it was held in that case that he could not be such a guardian because the evidence showed that there was only one fugitive or isolated act with regard to the minor's property which connected him with it and that was not sufficient to make him a de facto guardian. In the present case the plaintiffs have been found to have been associated with the temple properties for a long time and not merely by an isolated or fugitive act. The case is, therefore, distinguishable.
32. We cannot omit to mention here that the plaintiffs in the present suit who have been recognised as de facto trustees have sued for the possession of immoveable and moveable properties of the trust in order to safeguard the trust properties in the hands of persons who have no right, title or in interest thereto. If the plaintiffs' suit were to be thrown out upon a preliminary objection such as this that they have no right to sue because they are merely de facto trustees and out of possession, then the trust properties would remain in the hands of persons who have been adjudged complete trespassers. That such a position should never be allowed to be brought about has been impressed upon Courts by the Supreme Court in Vikrama Das v. Daulat Bam : AIR1956SC382 , where the general rule in matters of this kind was stated thus (p. 390):.the ordinary rule that persona without title and who are more intermeddlers cannot sue as of right is clear. But where public trusts are concerned, courts have a duty to see that their interests and the interests of those for whose benefit they exist are safeguarded. Therefore, courts must possess the power to sustain proper proceedings by them in appropriate cases and grant relief in the interests of and for the express benefit of the trust imposing such conditions as may be called for.
We think that this is pre-eminently a case where the principle laid down by the Supreme Court should be made to apply. In our opinion, the plaintiffs, even though they are found to be de facto trustees, were in the circumstances of the case entitled to bring the present suit to recover the properties of the Shri Laxminarayan Bhagwan Mandir from the hands of the defendants who have no right, title or in interest thereto. Thus both the contentions upon which the defendants claim that the plaintiffs' suit should be thrown out fail.
33. In the result we affirm the judgment and decree of the trial Court and dismiss the First Appeal No. 573 of 1963.
34. [The rest of the judgment is not material to this report.]