P.V. Rajamannar, C.J.
1. This case was referred to a Full Bench because Mack, J., before whom it originally came for disposal, considered it desirable that the conflict of decisions as regards maintainability of suits by de facto trustees should be resolved by reference to a Full Bench for the guidance of all courts in the Presidency. The appeal arose out of a suit filed for the recovery of possession of certain property alleged to belong to Sri Swarnamalai Kadiresan Swami Temple and alienated by one Amavasai Paradesi as its trustee to the first defendant on 13th May, 1940, under a sale deed and under an othi deed. The plaintiff was described as Sri Puvananda Swami, through its Executive Officer, C.S. Pillai. The plaintiff's right was in the main based upon the terms of a consent decree passed in O.S. No. 64 of 1937 on the file of the court of the District Munsif of Koilpatti, which was a suit filed by the plaintiff Devasthanam against Amavasai Paradesi and others for possession of the site of Swarnamalai temple and other temples attached to it. It is not necessary to advert in detail to the terms of this razinama decree and the validity of the decree, because the learned Subordinate Judge did not go into the merits of the plaintiff's case. Though it was not specifically pleaded, the plaintiff urged before the trial Court 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 learned District Munsif, following the ruling in Atmaram Rao's Charity v. Packiri Mohammed Rowther (1944) 1 M.L.J. 35 held that a de facto trustee was in no better position than a trespasser and therefore was not entitled to sue for possession of the alienated property. But on appeal, the learned Subordinate Judge held that in the absence of a de jure trustee, a de facto trustee could maintain a suit for possession on behalf of the trust, and he expressed his conclusion in the following manner:
I therefore find that if plaintiff Devasthanam were to prove that it is a de facto trustee and is in possession and management of the other properties of the Devasthanam it can maintain this suit.
The decree of the lower Court was set aside and the suit remanded for disposal on all the issues. It was against this order that the appeal was preferred by the fourth defendant who was a transferee from the first defendant.
2. Enough has been said to indicate that the scope of the reference to the Full Bench is very restricted, We are not asked to define who can be described as a de facto trustee. Apparently, the learned Subordinate Judge wanted the trial Court to go into the question if the plaintiff in this case can be treated as a de facto trustee. 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.
3. Before discussing the main question, we may briefly dispose of two subsidiary questions raised by the appellant, which, however, do not directly arise on the reference. It was first urged that the plaintiff never pleaded any alternative case based upon its rights as a de facto trustee, and all the allegations in the plaint amounted to an assertion of ownership of the suit properties by the plaintiff Devasthanam in its own right and not as trustee of the Swarnamalai temple. Though this contention is not without force, we think it is too late in the day to allow this objection to prevail. In both the Courts below, and before Mack, J., it was evidently assumed without dispute that the plaintiff Devasthanam sought to maintain the suit also as a de facto trustee. This point did not come as a surprise on the appellant, and we are convinced that no injustice has been caused to him by reason of defective pleading. The second point pressed by the appellant was that the temple or the idol, which must be deemed to be in law the plaintiff, cannot be a trustee of another temple or idol. This is again a point which has not been referred to us, and if the appellant desires, he may raise it if and when the case goes back to the trial Court for fresh disposal.
4. At the outset, it must be made clear that the question which falls for decision in this case is concerned with charitable and religious trusts or endowments, which are explicitly excluded from the class of trusts to which the Trusts Act of 1882 has application. This fact must be borne in mind, because what little there is of conflict is, in my opinion, almost entirely due to an attempt to apply rules governing private trusts to public charitable and religious endowments.
5. In the case of a Hindu temple, the property vests in the idol, which is a juristic entity. From its very nature, the idol can act and assert its right only by a recognised human agency known as a shebait, or dharmakarta, and sometimes called trustee. See Jagadindranath Roy v. Hemanta Kumari Debi and Pramathanath Mullick v. Pradyumna Kumar Mullick (1925) 49 M.L.J. 30 : L.R. 52 IndAp 245 : I.L.R. 52 Cal. 809 (P.C.) But such a manager, by whatever term he is designated, is not the person in whom the legal title vests as in a trustee. Likewise, the head of a mutt, even though he may have the right to a part of the usufruct of the properties belonging to the mutt, is not a trustee in the English sense of the term, although in view of the obligations and duties resting on him, he is answerable as a trustee in the general sense, for maladministration. 'Called by whatever name, he is only the manager and custodian of the idol or the institution'. Vide Vidyavaruthi v. Balusami Iyer (1921) 41 M.L.J. 346 : L.R. 48 IndAp 302 : I.L.R. 44 Mad. 831 (P.C.). The same conception obtains even in respect of Muhammadan religious endowments, and neither the sajjadanashin nor the mutavalli is a trustee in the technical sense See Vidyavaruthi v. Balusami Aiyar (1921) 41 M.L.J. 346 : L.R. 48 IndAp 302 : I.L.R. 44 Mad. 831 (P.C.). As their Lordships of the Judicial Committee point out,
It was in view of this fundamental difference, between the judicial conceptions on which the English law relating to trusts is based and those which form the foundations of the Hindu and the Muhammadan system, that the Indian Legislature in enacting the Indian Trusts Act (II of 1882) deliberately exempted from its scope the rules of law applicable to wakf and Hindu religious endowments.
It is because of this peculiarity that the worshippers, the Advocate-General a prospective shebait, and only persons interested in the temple or mutt, are allowed to institute a suit for the enforcement of the rights of the temple or the mutt They are allowed to bring a suit for declaration that an alienation by a shebait or a manager is not valid, though of course actual possession of the properties may not be recovered by any of them.
6. In several cases decided by Courts in India including this Court it was held or assumed, as the basis of the decision that ' a de facto trustee ', that is a person other than a manager or the head of an institution who could establish a legal title to his office, 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 Ramesam, J, summed up the result of these decisions as follows in Appasami Pillai v. Kamu Tevar : AIR1932Mad267 .
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 rights of such de facto managers to maintain a suit for the enforcement of the rights of the idol or institution were recognised in Moideen Bibi Ammal v. Rathnavelu Mudali : AIR1927Mad69 ., Benarsi v. Altaf Husain (1921) 63 I.C. 171., Md. Ibrahim v. Sundaram Chetti : AIR1926Mad1066 . and Kasi Chetti v. Srimathu Devasikamani Nataraja Dikshitar (1913) M.W.N. 181. In the last mentioned case it is clear that the decision was based not on any prior possession in the de facto trustee because the alienation was before such trustee came on the scene, but because he was in possession of the mutt and its properties.
7. The only decision which took a contrary view is the decision of Venkatasubba. Rao and Abdur Rahman, JJ.; in Vedakannu Nadar Ranganatha Mudaliar : AIR1938Mad982 .. The learned Judges held that a de facto trustee as such had no locus standi to maintain an action on behalf of the trust even if the action was taken to have been instituted for the benefit of the trust. He was really no better than a trustee de son trot, unless on the facts of each case a presumption could be raised in his favour of being a trustee de jure. The leading judgment was delivered by Abdur Rahman J. He came to the conclusion that a trustee de facto was really no other than what is known to law as a trustee de son tort, and his position did not improve by describing him to be a trustee de facto. As a trustee de son tort, he could not be held to confer a right on himself to maintain suits on behalf of the trust, even if they were taken to have been instituted for the benefit of the trust. It is quite evident that the learned Judge discussed the question entirely from a conception familiar to us in English law, and in the law of private trusts. A trustee is either a lawful trustee in which case the title to the property concerned would vest in him, or he is an intermeddler, a person who has come into possession of trust property without legal title, and therefore a wrongdoer, a trustee de son tort. This doctrine is always applied with reference to a property as such. In whom does the title to a property vest If it is trust property, then it must vest in the de jure trustee. That is the foundation of the doctrine. How inapplicable and foreign this conception is to the case of Hindu and Muhammadan religious endowments, will be apparent, if the nature of such endowments is borne in mind. In the case of these endowments the so-called trustee is not really a trustee, in the technical sense, in whom the property is vested. He is really a manager (even in cases where he also has a beneficial interest in the usufruct) and the title always is vested in the idol or the institution. In either case, the analogy is to that of an individual having a manager to carry on the administration of his affairs and properties. Viewed in this light, the position reduces itself to this. In some cases, the manager has a rightful claim to the office of manager, in other cases, his only claim is that he is in actual possession of the office. ' De facto'. means, 'by the title of possession ', in antithesis to ' do jure ' i.e., ' by the title of right '. So long as an action is for the benefit of the real owner, namely, the idol or the mutt, and the person bringing the action is the only person who is in management of the affairs of the idol or the mutt for the time being, there is no reason why such person should not be allowed to maintain the action on behalf of the idol or the mutt. In deference to the opinion expressed by the two learned Judges in Vedakannu Nadar v. Ranganatha Mudaliar : AIR1938Mad982 we would have dealt at greater length with their reasoning, but we think such a course unnecessary, in view of two decisions of the Judicial Committee, which Unfortunately do not appear to have been brought to their notice.
8. The first of these is Mahant Ram Charan Das v. Naurangi Lal (1933) 64 M.L.J. 505 : L.R. 60 IndAp 124 : I.L.R. 12 Pat. 251 (P.C.). The suit was for recovery of 70 acres of land belonging to the Paliganj math. One Rampat Das was the Mahant in 1909, when he executed a permanent lease of about 70 acres of land, and in 1911 he executed a sale deed of the land, subject to and with the benefit of the lease. Neither the lease, nor the sale, was executed for legal necessity, nor was it for the benefit of the Math. Rampat Das died in July 1913, and on his death, one Sant Das took possession of the Math, claiming to be the Mahant. But, on 20th February, 1916, by registered deed, he surrendered all his rights to the plaintiff, who was then the Mahant of another Math at Ramdih Baga. The plaintiff claimed that as Rampat Das had died without leaving behind him any disciple, he as the Mahant of Ramdih Baga Nath, was entitled to take possession of the Paliganj Math and the properties appertaining to it. He therefore instituted a suit against the lessee and the purchaser for possession of the 70 acres alienated by Rampat Das. Though the plaintiff rested his right to maintain the suit on title also their Lordships observed that they were not concerned with any question of title, because both the Courts below has found that the plaintiff was
the person in actual possession of the Paliganj Math and as such entitled to maintain a suit to recover property not for his own benefit but for the benefit of the Math.
To understand the implication of these observations of their Lordships, it is useful to refer to the judgment of the High Court in Naurangi Lal v. Mahant Ram Charan Das I.L.R. (1930) Pat. 885 from which it is clear that the competency of the plaintiff to maintain the suit was directly in issue. Fazl Ali, J., after referring to the description by the learned Subordinate Judge of the plaintiff, as the de facto Mahant of Paliganj, an expression which he characterises as not very happy, disposed of the objection regarding the locus standi, of the plaintiff to bring the suit in the following words:.in my opinion, it is enough for this purpose to show that the plaintiff is not claiming; the property in suit as his own property but as the property of the Math or the idols installed in the Math or and that he being in the actual possession of the Math is as competent to maintain the suit as any person who may sue as the next friend of the idols or the judicial person known as the Math.
It is this view that was confirmed by their Lordships.
9. The next decision in Mahadeo Prasad Singh v. Karia Bharti (1934) 68 M.L.J. 499 : L.R. 62 IndAp 47 : I.L.R. 57 All. 159 (P.C.) is more instructive. In that case, a suit was brought for recovery of possession of a village alleged to appertain to a Math at Kanchanpur. The plaintiff claimed to be its lawful Mahant, having been installed as such upon the death of one Rajbans Bharti, who was admittedly a Mahant and who had sold the village to the defendants without necessity. The alienees denied that the plaintiff had been installed as Mahant and pleaded that the suit was not therefore maintainable. The learned Judges of the High Court held that although the plaintiff had not been installed as Mahant, he had been de facto Mahant, and as such, he could maintain the suit. The competency of the plaintiff to maintain the suit was again questioned before their Lordships of the Judicial Committee, who accepted the finding of the trial Court and the High Court that the plaintiff was neither the chela of Rajbans, the previous Mahant, nor appointed to be the head of the institution ; and also accepted the finding that the plaintiff, though not duly installed, was in fact the Mahant of the Math. On these findings, their Lordships answered the question whether the plaintiff could maintain the suit to recover the property, thus,
There can be little doubt that Karia (plaintiff) had been managing the affairs of the institution since 1904, and has since the death of Rajbans been treated as its Mahant by all the persons interested therein. The property entered in the revenue records in the name of Rajbans was, on his death mutated to Karia, and it is not suggested that there is any person who disputes his title to the office of the Mahant. In these circumstances their Lordships agree with the High Court that Karia was entitled to recover for the benefit of the Math the property which belonged to the Math and is now wrongly held by the appellants. They are in no better position than trespassers. As observed by this Board in Mahant Ram Charan Das v. Naurangi Lal (1933) 64 M.L.J. 505 : L.R. 60 IndAp 124 : I.L.R. 12 Pat. 251 (P.C.) a person in actual possession of the Math, is entitled to maintain a suit to recover property appertaining to it, not for his own benefit, but for the benefit of the Math.
Though the question was not actually decided it was apparently assumed in Iswar Ram Chandra v. Bengal Duars Bank . that the two decisions were authority for the position that a person in possession of a temple or Math was entitled to maintain an action to recover the properties belonging to the temple or math. In the face of these two 'decisions of the Privy Council, it is impossible to accept Vedakannu Nadar v. Ranganatha Mudaliar : AIR1938Mad982 . as laying down the correct law on the point. With respect to the learned Judge, we do not agree with Horwill, J., that in spite of these two decisions, the decision in Vedakannu Nadar v. Ranganatha Mudaliar : AIR1938Mad982 . should be considered to be good law. (Vasudeva Rao v. Packiri Mohammed Rowther (1944) 1 M.L.J. 35. It may not be accurate to say that, in the Privy Council cases above referred to,
there was no question about who should hold office or as to who was the person entitled to bring the suit.
It is quite clear that the competence of the persons who brought the suit was expressly challenged.
10. 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 Gurukkal v. Abbinava Poornapriya A. Srinivasa Rao Sahib : 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.
It may be mentioned that, once before, the question now referred to us was placed before a Full Bench, at the instance of Chandrasekhara Aiyar, J., but the learned Judges who formed the Full Bench considered that the question did not arise on the facts of the case, because that was not a case where de facto trustees, in the absence of de jure trustees, took action with regard to the property of the trust in the interests of the trust. It was a case where persons who had no manner of right to be in possession of trust property wrongfully kept the lawful trustees out of possession Pattabhirama Reddi v. Balarami Reddi (1944) 2 M.L.J. 326.
11. In my opinion, the learned Subordinate Judge was right in holding that if the plaintiffs were to prove that it, is in possession and management of the Swarnamalai Kadiresan temple and its other properties and therefore is its de facto trustee it can maintain the suit.
12. The appeal is dismissed with costs.
Viswanatha Sastri, J.
13. In Vedakannu Nadar v. Ranganatha Mudaliar : AIR1938Mad982 ., Venkatasubba Rao and Abdur Rahman, JJ., held that a de facto, trustee of a public, religious or charitable trust had no locus standi to maintain an action on behalf of the trust even if the action be found to have been instituted in the interests of the trust and for its benefit. The decision was based on the ground that a de facto trustee was an intermeddler or wrongdoer and that he could not confer any rights on himself by committing a wrong, although he might assume liability on account of his conduct. Abdur Rahman, J., observed that the expression 'de facto trustee' was an unhappy one, loosely used in some Indian decisions to denote a 'trustee de son tort', a term, which, according to his Lordship ' is so well known and which brings out the idea of wrong so very clearly '. To support his conclusion he also relied on the decision of the Privy Council in Mata Din v. Ahmed Ali (1912) 23 M.L.J. 6 : L.R. 39 IndAp 49 : I.L.R. 34 All. 213 (P.C.), relating to the powers of an unauthorised guardian under the Muhammadan Law to deal with the estate of a minor. Both the learned Judges differed from previous decisions of this Court, to the effect that suits for the vindication of the rights of a public religious endowment could be instituted by a de facto trustee where no de jure trustee was existing or functioning. The correctness of the decision in Vedakannu Nadar v. Ranganatha Mudaliar : AIR1938Mad982 which has since been followed in Atmaram Rao's Charity v. Packiri Mohammed Rowther (1944) 1 M.L.J. 35. is now assailed before the Full Bench.
14. In holding that the conception of a 'de facto trustee' had no legal basis or warrant, that it was a loose and unscientific popular equivalent of a ' trustee de son tort' that the expression ' trustee de son tort' borrowed from the English law was a well-known and well-understood legal expression denoting an intermeddler or a wrong doer and that the expression 'trustee de son tort' would correctly describe the position of a ' de facto trustee ' under the Hindu Law, their Lordships, in my humble judgment, paid an exaggerated compliment to the legal cobwebs of an alien system and paid scanty attention to the well-established and well-understood principles of Hindu Law which they had to apply. Let me say a word about the English conception of a ' trustee de son tort ' though, in my opinion, it may not be strictly germane to a consideration of the question now debated. I shall advert later in the course of this judgment to the fundamental difference between the judicial conceptions on which the English law relating to trusts is based and those which underlie the Hindu legal system. Dealing with the phraseology of the English law, I may be permitted to state in all humility that there is some amount: of confusion discernible in the language employed by the English courts in their description of the status of persons occupying a fiduciary position. The expressions, ' trustee de son tort' and ' constructive trustee ' have been employed in English decisions sometimes as antithetical and sometimes as synonymous. The expression. ' de facto trustee ' is not found used in the leading English cases that I have been able to examine. It will be agreed that trusts created by act of parties are express trusts. Trusts which are assumed or presumed by law to exist without any reference to the expressed intention of the parties, in order to satisfy the demands of justice and good conscience, are generally styled constructive trusts. A person who not: being himself a trustee nor authorised by a trustee, intermeddles with the affairs of the trust or the trust estate and does acts characteristic of the office of an express trustee has been called a 'trustee de son tort'-a trustee of his own wrong. A person who by mistake or otherwise bona fide assumes the character of trustee, though it does not really belong to him, is also a ' trustee de son tort'. He is made liable as an express trustee under the English law-see per Lord Esher, M. R., in Soar v. Ashwell (1893) 2 Q.B. 390. At the same time, he is also described as a constructive trustee, the expressions ' trustee de son tort ' and ' constructive trustee ' being treated as interchangeable and appropriate to describe the same individual-see per A.L. Smith, L.J., in Mara v. Browne (1896) 1 Ch. 199.; Halsbury's Laws of England, volume 33, page 192. Even the language used by the Lord Chancellor in the leading English case of Barnes v. Addy (1879) 9 Ch. A. 244, is not so precise or clear as one would expect from that august source, as even strangers who receive and become chargeable with some part of the trust estate are styled constructive trustees. It is obvious that there cannot be both an express and a constructive trust in respect of the same matter. The distinction between an express trustee and a constructive trustee would be very material in considering the period of limitation applicable to suits filed by or on behalf of the cestui que trust. A trustee de son tort is not a constructive trustee, but is liable as an express trustee. A constructive trust arises by legal inference or implication, by the operation of law and not by act of parties. It arises when a trustee gains some personal advantage availing himself of his position and through the medium of his situation as a trustee. Section 88 of the Indian Trusts Act provides for cases of this type. A trustee de son tort may, like an express trustee, also become liable as a constructive trustee under the above rule if he abuses, his position and gains a personal advantage to the detriment of the trust. I do not think that a trustee de son tort in relation to the trust property can be regarded as a constructive trustee under Section 94 of the Trusts Act. In this country, the position of a person, who, in England, would be described as a trustee de son tort is that of an express trustee so far as his liabilities and disabilities are concerned. Section 92 of the Civil Procedure Code proceeds on this basis. The definition of 'trustee' in Section 9, Clause (13) of the Madras Act II of 1927 includes a trustee de son tort. The Judicial Committee have held that a trustee de son tort is in the position of an express trustee and like him, is debarred from setting up a plea of adverse possession as against the trust. See Balwant Rao v. Puran Mal and Arunachalan Chetti v. Venkatachalapathi (1919) 37 M.L.J. 460 : L.R.46 IndAp 204 : I.L.R. 43 Mad. 253 (P.C.). There is therefore no danger to the trust estate in recognising a trustee de son tort or holding that a person who is liable as a trustee is also entitled to take legal proceedings in the interests of the trust and for the recovery of property belonging to the trust.
15. The position of an executor de son tort may also be referred to in this connection. If a person who is neither an executor nor an administrator intermeddles with the estate of a deceased person or does acts characteristic of the office of executor he thereby makes himself an executor de son tort. Though an executor de son tort cannot by his own wrongful act, acquire any benefit for himself yet, he is protected in all acts which a rightful executor may do. He can apply the assets which are in his hands to the payment of the debts of the deceased. Any lawful act done by him in the professed course of the administration of the estate binds the rightful executor and the persons eventually entitled to the estate. Payments made and alien ions of the estate effected by an executor de son tort in due course of administration or by an executor whose probate is subsequently revoked, are treated as valid. As against a creditor of the deceased who sues an executor de son tort for recovery of the debt, the latter may plead plane administrative. How comes it, one may ask, that a person who himself has no title is able to convey a title to a purchaser and administer the estate by collecting moneys and giving a good discharge to the debtors of the estate?
16. Before applying the doctrines derived from the English law of trusts to public religious endowments in this country, it must be remembered that there are fundamental differences between the English and the Indian systems. It is for this reason that the Indian Trusts Act, which is modelled on the English law of trusts, specifically declares in Section 1 that its provisions do not apply to public or private religious or charitable endowments. A ' trust 'in the sense in which the expression is used in English law postulates a conveyance of property to the trustee and the vesting of the legal title to the property in him, for the benefit of the ceslui que trust. The position of the manager of a Hindu religous or charitable endowment in relation to the endowment is not strictly speaking that of a trustee. In the early case of Maharane Shibessouree Deebia v. Acharjo (1869) 13 M.I.A. 270. Lord Chelmsford thus defined the position of shebait or manager vis-a-vis the idol or the temple:
The Talook itself with which these Jummas were connected by tenure, was dedicated to the religious services of the idol. The rents constituted therefore in legal contemplation its property. The shebait had not the legal property, but only the title of manager of a religious endowment. In the exercise of that office she could not alienate the property, though she might create proper derivative tenures and estates conformable to usage.
In the case of Vidyavaruthi Thirtha v. Balusami Aiyar (1921) 41 M.L.J. 346 : L.R. 48 IndAp 302 : I.L.R. 44 Mad. 831 (P.C.), the Judicial Committee dealt with this matter exhaustively and came to the following conclusions:
When the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily effected by human agency. Called by whatever name, he is only the manager and custodian of the idol of the institution. In no case was the property conveyed to or vested in him, nor is he a ' trustee ' in the English sense of the term, although in view of the obligations and duties vesting on him, he is answerable as a trustee in the general sense, for mal-administration.
Neither under the Hindu law nor in the Mahomedan system is any property ' conveyed ' to a shebait or a mutavalli in the case of a dedication. Nor is any property vested in him, whatever property he holds for the idol or the institution he holds as manager with certain beneficial interests regulated by custom and usage.
From the above review of the general law relating to Hindu and Muhammadan pious institutions, it would prima facie follow that an alienation by a manager or superior, by whatever name called, cannot be treated as the act of a ' trustee' to whom property has been ' conveyed in trust' and who by virtue thereof has the capacity vested in him which is possessed by a ' trustee ' in the English law.
In Pramathanath Mullick v. Pradyumna Kumar Mullick (1925)49 M.L.J. 30 : L.R. 52 IndAp 245 : I.L.R. 52 Cal. 809 (P.C.), the Judicial Committee reiterated what they had previously said,A Hindu idol is, according to long-established authority, founded upon the religious customs of the Hindus, and the recognition thereof by courts of law, as 'juristic entity'. It has a juridical status with the power of suing and being sued. Its interests are attended to by the person who has the deity in his charge and who is in law its manager with all the powers which would, in such circumstances, on analogy, be given to the manager of the estate of an infant heir. It is unnecessary to quote the authorities ; for this doctrine, thus simply stated, is firmly established.
The position of the idol, therefore, is that of a legal owner and the position of the so-called trustee of a Hindu temple or other religious or charitable endowment is that of a mere manager. (Venkateswara v. Venkatesa : (1941)1MLJ644
18. The guardian of a Hindu minor, the manager of a Hindu religious endowment and the manager of a joint Hindu family, all occupy a position of trust and confidence towards the minor or the idol or the junior members of the family as the case may be. Their power to deal with the property of the minor or the idol or the joint family, is a limited power which can rightly be exercised only in case of necessity or for the benefit of the infant, idol or the family as the case may be : Hanooman Pershad's case (1856) 6 M.I.A. 393, Srikrishna Das v. Nathuram (1926) 52 M.L.J. 720 : L.R. 54 IndAp 79 : I.L.R. 49 All. 149 (P.C.), Ramsunderlal v. Lakshminarayana (1929) 57 M.L.J. 7 (P.C.), and Palaniappa v. Deivasigamani (1917) 33 M.L.J. 1 : L.R. 44 IndAp 147 : I.L.R. 40 Mad. 709 (P.C.). There is normally a de jure guardian of a minor's estate, a de jure manager or dharmakartha of an idol and a de jure head of a joint Hindu family entitled to remain in possession and management of the properties and also to bring and defend suits concerning the estate. The parents. of a Hindu boy are his natural or de jure guardians. The management or trusteeship of a religious endowment vests in those designated by the deed of dedication or foundation and in the absence of such a deed, in those who succeed according to the usage of the institution. Such managers or dharmakarthas of religious endowments might be called de jure trustees. The management of a joint Hindu family vests in the seniormost male member of the family and he may be styled its dejure manager. When, however, the dejure guardian, dejure trustee or dejure manager of the family, ceases to function for one reason or another, or when there is no such de jure guardian or manager available, the affairs of the infant or the idol or the joint family, as the case may be, are usually attended to by a near relation of the minor, or a person interested in the idol either as a member of the founder's; family or the trustee's family or a junior member of the joint Hindu family respectively. The persons who step in and assume the management in such circumstances with a view to protect the interests of the estate without a strict legal title or valid appointment are styled de facto guardians, de facto trustees and de facto managers. of a joint family.
19. These expressions were not anathema to English jurists administering Hindus law but have long been in use as a compendious and convenient description of the status, position, powers and duties of these respective functionaries. With reference to a minor, de facto guardianship of the minor's estate has long been recognised as clothing the de facto guardian with certain well-defined duties, obligations and; powers including a power of disposal over the estate of the minor, limited however, by the same restrictions as would apply to a natural or de jure guardian. A de facto guardian or manager of an infant's estate has, in cases of necessity, power to sell or mortgage the property of an infant. It was so ruled by the Judicial Committee in Hanooman Pershad's case (1856) 6 M.I.A. 393. and this decision has been constantly followed by this and the other High Courts on many occasions-sec Pundarikakshayya v. Sreeramulu : AIR1946Mad1 , Sudarsana v. Dalayya : AIR1943Mad487 , China Alagamperumal v. Vinayakathammal : AIR1929Mad110 . Seetharamanna v. Appiah (1925) 50 M.L.J. 689 : I.L.R. 49 Mad. 768, Mukkamala Hanumayamma v. Kasineni Lakshmidevamma : AIR1938Mad950 , Tulsidas v. Vaghela Raisinghji I.L.R. (1932) Bom. 40; and Piara Lal v. Lajjaram I.L.R. (1935) Lah. 78. He is also bound to account for his management of the minor's estate, Ramanatha v. Annamalai : (1934)66MLJ451 ., Sankaralingam v. Kuppuswami : AIR1935Mad305 . As the position of a guardian or manager of a Hindu minor's estate has been held by the Privy Council to be similar to that of the manager of a religious, endowment, the following passage from the judgment of the Judicial Committee in Hanooman Pershad's case (1856) 6 M.I.A. 393, may usefully be cited:
Under the Hindu law, the right of a bona fide encumbrancer who has taken from de facto manager a charge on lands created honestly, for the purpose of saving the estate or for the benefit of the estate, is not (provided the circumstances would support the charge had it emanated from a de facto and de jure manager) affected by the want of union of the de facto with the dejure title.
I am constrained to refer at length to this aspect of the matter for two reasons,. In my opinion, there is a close analogy between the position of the de facto guardian of a minor's estate and that of the de facto trustee of a Hindu religious endowment. Secondly, I consider it somewhat unfortunate that Abdur Rahman, J., in Vedakannu Nadar v. Ranganatha Mudaliar : AIR1938Mad982 ., should have resorted to the analogy of a de facto guardian under the Muhammadan law. It is true that the Judicial Committee in Matadin v. Ahmed Ali (1912) 23. M.L.J. 6 : L.R. 39 IndAp 49 : I.L.R. 34 All. 213 (P.C.) held that a de facto guardian of a Muhammadan minor was in the position of a mere trespasser without any rights whatever to act on behalf of the minor or to convey the minor's estate even for a necessary or binding debt. Their Lordships, however, expressly confined their remarks to a cape arising under the Muhammadan law as might be seem from the following passages in the judgment of the Board:
The family were Muhammadans and were governed by the Muhammadan law relating to guardianship. According to that law, in the absence of duly appointed testamentary guardians, the care of Ahmed Ali's (minor's) property would devolve, first on the father and his executor, next on the paternal grandfather and his executor and failing these, the right of nomination of a guardian would 'rest in the ruling power and its administration'. The brothers had, therefore, no right whatever to act except under the authority of an appointment by the Court.
Dealing with the contention that the alienation in that particular case might be justified on the ground of necessity or benefit to the minor, even though it was effected by a defacto guardian, their Lordships observed,
There has been much argument in this case in the courts below, and before their Lordships, as to whether, according to Muhammadan law, a sale by a de facto guardian, if made of necessity, or for the payment of an ancestral debt affecting the minor's property, and if beneficial to the minor is altogether void or merely voidable. It is not necessary to decide that question in this case.
That this limitation on the powers of the defacto guardian of a minor is not of general application, but confined only to the case of Muhammadans is clear from the later decision of the Judicial Committee in Imam Bandi v. Mutsaddi (1917) 35 M.L.J. 422 : L.R. 45 IndAp 73 : I.L.R. 45 Cal. 878 (P.C.) where the law is; stated as follows:
For the foregoing considerations, their Lordships are of opinion, that under the Muhammadan law a person who has charge of the person or property of a minor without being his legal guardian and who may, therefore, be conveniently called a ' de facto guardian ' has no power to convey to another any right or interest in immoveable property which the transferee can enforce against the infant ; nor can such transferee if let into possession of the property under such unauthorised transfer, resist an action in ejectment on behalf of the infant as a trespasser. It follows that, being himself without title, he cannot seek to recover property in the possession of another equally without title.
The well known and oft-quoted case of Hanooman Pershad, (1856) 6 M.I.A. 393. would have afforded a surer guidance to their Lordships who decided Vedakannu Nadar v. Ranganatha Mudaliar : AIR1938Mad982 . than the decision of the Privy Council which dealt solely with the Muhammadan law relating to the guardianship of a minor's property.
20. In the case of a joint Hindu family, the father, if alive, or in his absence, the senior member of the family is the dejure manager of the family property and entitled, to sue as such manager on behalf of the family. Suraj Bansi v. Sheo Prasad , Krishnaprasad v. Hari Narayan (1911) 21 M.L.J. 378 : L.R. 38 IndAp 45 : I.L.R. 33 All. 272 (P.C.), Venkatanarayana v. Somaraju : (1937)2MLJ251 .. The relation of the manager to the other members of the joint family is not that of an agent or partner but much, more like that of trustee and cestui que trust, Annamalai v. Murugesa (1903) 13 M.L.J. 287 : L.R. 30 IndAp 220 : I.L.R. 26 Mad. 544 (P.C.). It sometimes happens that a junior member of the family assumes management of the family affairs and the management of the family properties with the consent or acquiescence of the other members often inferred from their conduct, Mudit. Narayan v. Ranglal (1902) 29 Cal. 797. Ramakrishna v. Manikka : AIR1937Mad375 . A junior member, if he is in charge of the the family business, will have all the powers of a manager to the extent: necessary for the proper conduct of the business of which he is in charge, Sheo Pershad Singh v. Saheblal (1892) 20 Cal. 453. The term ' de facto manager' is a very convenient ' espression to denote the position of such a junior member.
21. I now turn to the case of a Hindu religious endowment and that variety of it with which we are here concerned, namely, a Hindu temple. To constitute a valid dedication, a conveyance by way of trust by the author of the trust to another person called the 'trustee' is not required and an appropriation of property for a specific religious or charitable purpose is all that is necessary or requisite Vidyavaruthi v. Balusami Iyer , Ramalinga v. Sivachidambara (1918) 36 M.L.J. 575 : I.L.R. 42 Mad. 440, Hemantakumari Debi v. Gowri Sankar I.L.R. 1941 All. 401 : L.R. 61 IndAp 53 : (1941) 2 M.L.J. 1 (P.C.), Sankaranarayana v. The Hindu Religious Endowments Board L.R. 74 IndAp 230 : I.L.R. 1948 Mad. 147 : 585 (P.C.). The decisions of the Privy Council have now firmly established that the idol is a juridical person capable as such of owning and holding property. The legal title or property is vested in the idol and the so-called trustee or dharmakartha is Only the manager of the religious endowment. The position of the dharmakartha or manager of a temple in relation to debutter property is by no means similar to that of a trustee towards, the trust property under the English law. The only resemblance is that he has certain duties to perform which are analogous to those of trustees. In addition to the cases already cited, reference may be made to the following decisions of the Judicial Committee, Jagadindranath v. Hemanthakumari . Jadunath v. Thakur Seetharam (1917) L.R. 44 IndAp 187 : I.L.R. 39 All. 553 (P.C.), Kanhaiya lal v. Hamidali (1933) 60 I.A. 263 : 65 M.L.J. 811 : I.L.R. 8 Luck. 351 (P.C.), Damodardas v. Lakshandas (1910) L.R. 37 I.A 147 : 20 M.L.J. 624 : I.L.R. 37 Cal. 885 (P.C.). At the same time, the possession and management of the dedicated property and the right to sue for the protection of the property and the recovery of its rents and profits and the vindication of the rights of the idol must ex necessitati rei vest in some human agency, usually the dharmakartha, shebait, manager or trustee of the institution. In Prasannakumari Debya v. Golabchand Baboo (1875) L.R. 2 IndAp 145 (P.C.), the Judicial Committee observed,
It is only in an ideal sense that the property can be said to belong to an idol ; and the posses sion and management of it must, in the nature of things, be entrusted to some person as shebait or manager. It would seem to follow that the person so entrusted must, of necessity be empowered to do whatever may be required for the service of the idol and for the benefit and preservation of its property, at least to as great a degree as the manager of an infant heir.
Again in Jagadindranath Ray v. Hemantakumari Debi I.L.R. (1904) Cal. 129 : L.R. 31 IndAp 203 (P.C.), the Privy Council stated the law thus:
There is no doubt that an idol may be regarded as a juridical person capable as such of holding property, though it is only in an ideal sense that property is so held. And probably this is the true legal view when the dedication is of the completest kind known to the law.... Assuming the religious dedication to have been of the strictest character, it still remains that the possession and mangement of the dedicated property belongs to the shebait. And this carries with it the right to bring whatever suits are necessary for the protection of the property. Every such right of suit is vested in the shebait, not in the idol.
To the same effect is a later decision of the Privy Council in Damodar Das v. Lakshan das I.L.R. (1910) Cal. 885 : L.R. 37 IndAp 147 : 20 M.L.J. 624. The Courts in India acted on the principle enunciated by the Judicial Committee in the above cases and held that the de facto manager of a religious endowment was in the same position as the de facto guardian of a Hindu infant with the same powers and duties, see Sheo Sankar Gir v. Ram Shewak I.L.R. (1896) Cal. 77., Kasim Saheba v. Sudhindra Thirthaswami I.L.R. (1895) Mad. 359, Seetharamanna v. Appiah (1925) 50 M.L.J. 689 : I.L.R. 49 Mad. 768. How comes it that if a de facto trustee is no more than a trespasser, an alienee from him of trust property gets a good title if there is justifying necessity or benefit to the institution as held in these cases How is it like a de jure trustee he gets a right of reimbursement and retainer for out of pocket expenses as held in Abkan Sahib v. Soran Bivi Sahiba (1913) 28 M.L.J. 347 : I.L.R. 38 Mad. 260. It therefore follows that a de facto trustee is not in the same position as a trespasser or a mere wrongdoer.
22. Coming to the question now before us, namely, the right of a de facto trustee or manager of a religious endowment to institute a suit for recovery of trust property held adversely to the trust by a stranger, there are two recent decisions of the Judicial Committee, that furnish a decisive answer in favour of the maintainability of such a suit. I refer to the cases in Mahant Ramacharandas v. Nowrangilal . and Mahadeo Prasad Singh v. Karia Bharti (1934) L.R. 62 IndAp 47 : 68 M.L.J. 499 : I.L.R. 57 All 159 (P.C.)., in both of which it was held that the de facto Mahant or head of the Mutt, in actual possession of the mutt though without title, was entitled to maintain a suit to recover property, appertaining to the mutt, not for his own benefit, but for the benefit of the mutt, from a person claiming it adversely to the mutt. These two cases have been fully discussed in the judgment of my Lord and I need not go over the same ground again.
23. It was faintly suggested in the argument that these two decisions of the Judicial Committee related to the case of mutts where the Mahant or head of the mutt had a beneficial interest in the properties of the mutt and would not apply to the case of a manager or of a dharmakartha of a temple, as the latter is in a different position, having no personal interest or right in the income of the temple property, but only the right or duty to apply it for the purposes of the idol. This consideration, far from supporting the argument tends to weaken it, because if you can predicate a de facto trusteeship even in cases where the trustee has an appreciable personal or beneficial interest of his own in the property, it is an a fortiori case where there is no personal interest whatever in the trustee and he is a mere manager. Apart from this consideration, the Privy Council has held that the head of a mutt, the shebait of a family idol and the dharmakartha of a temple all occupy the same position in the eye of the law even though there may be an element of beneficial interest in the case of the head of a mutt or shebait of a family idol, Ponnambala v. Periannan Chetti (1936) 71 M.L.J. 105 : L.R. 63 IndAp 261 : 59 Mad. 809 (P.C.) Incidentally I may observe that Sir George Rankin, who delivered the judgment of the Judicial Committee in the case last cited, used the expression 'de facto managership', to describe the position of Nataraja who functioned as the head of the Kunnakudi Mutt from 1902 to 19-13 without any legal title to the office, his nomination as the head of the mutt having been held invalid by the Privy Council in Nataraja v. Kailasa . In a later case Iskwar Ramachandra v. The Bengal Duars Bank Ltd. , their Lordships of the Privy Council referred to the suit before them as one for the recovery of property by a de facto shebait of an idol and, affirmed the dismissal of the suit by the courts below on the 'ground that there was no evidence of the plaintiff having in fact acted in management of the idol's property as, for instance, by the collection of rents. Their Lordships did not say that a de facto shebait was like a trustee de son tort and therefore wholly incompetent to sue but they proceeded in the assumption, that a de facto shebait could sue if he could establish that he was functioning as such. I say so because their Lordships' attention was pointedly drawn to the two earlier cases in Mahant Ramachandradas v. Naurangi lal and Mahadeoprasad Singh v. Karia Bharti (1934) L.R. 62 IndAp 47 : 68 M.L.J. 499 : I.L.R. 57 A. 159 (P.C.) as empowering de facto trustees to sue.
24. These decisions were cited before Horwill, J. in Atmaram Rao's Charity v. Pakiri Mohammed Rowther (1944) 1 M.L.J. 35., but the learned Judge nevertheless felt himself bound by the decision in Vedakannu Nadar v. Ranganatha Mudaliar : AIR1938Mad982 .. If ever there was a case for allowing a de facto trustee to sue it was that case. The preceding trustee of the property had alienated the trust property and time was running against the trust estate in favour of the alienees. The person upon whom the trusteeship would devolve under the will of the founder did not come up on the scene at all. A relation of the founder claiming to be the next trustee under the terms of the will sued for recovery of possession of the property improperly alienated. The alienation was found not to be binding on the trust and was even declared, to be such by the decree of the court below. The Court, however, declined to pass a decree for possession, thereby emphasising the adverse character of the alienee's possession. With the greatest respect to the learned Judge, I am constrained to dissent from this conclusion. The decisions of this court upholding the right of a de facto trustee to sue in the interests of the trust are to be found in Anjayay Gundarayudu : AIR1943Mad381 , Subramania v. Srinivasarao : AIR1940Mad617 , Mohideen Vivi v. Ratnavelu Mudali : AIR1927Mad69 ., Appaswami Pillaiv. Ramu Thevar : AIR1932Mad267 ., Mohamed Ibrahim v. Sundaram Chetti : AIR1926Mad1066 , Kasi Chetti v. Deivasigamani Nataraja Desigar (1913) M.W.N. 181. The statement in the judgment 'in the case last cited that the de facto trustee was in possession of the suit property appears to be due to a misapprehension for, trustee or no trustee, a person in actual possession who is dispossessed by another who is not the owner of the property, can recover it merely on the strength of his prior possession apart from title, Ismail Ariff v. Muhammad Ghouse , Narayanarao v. Dharnachar (1902)13 M.L.J. 146 : I.L.R. 26 Mad. 514. I venture to think that if the two decisions of the Privy Council above cited had been considered by the learned Judges who decided Vedakannu Nadar v. Ranganatha Mudaliar : AIR1938Mad982 , they would not have ruled that a de facto, trustee had no locus standi to maintain an action on behalf of the trust even if the action was one instituted for the benefit of the religious institution. The other High Courts have held that a de facto shebait or trustee, accepted as such by persons interested in the institution, could bring a suit for recovery of property of the deity from a tresspasser in the interests of the trust. I need refer only to a few of the latest decisions, Tairt Bhushan v. Sridhar Saligram I.L.R. (1941) Cal. 477, Annapoornadevi v. Sivasundari I.L.R. (1944) Cal. 144, Dongarse Syamji v. Thirubhvundas I.L.R. 1947 All. 263.
25. A Hindu religious endowment is a complex juridical concept and in considering the rights and remedies of persons interested in the welfare of endowment, it is unsafe to import bodily the doctrines of the English law relating to express trusts, or trustees de son tort. With a view to protect the interests of religious endowments as well as the rights of persons dealing with shebaits or managers, the Indian Legislature has amended Section 10 of the Limitation Act by providing that managers of property comprised in a Hindu Religious endowment are deemed to be express, trustees thereof and has also enacted Article 134-A to 134-C of the same Act assimilating the position of the''manager to that of a trustee. Similarly Madras Act II of 1927 by Section 9 Clause (13) defines the term: 'trustee' as including any person, by whatever designation known, in whom the administration of a religious endowment is vested including a person who would be liable as a trustee i.e., a de facto trustee. In other respects, the so-called trustees of a Hindu temple are merely managers or supervisors with obligations resembling those of trustees, the property itself being vested in ownership in the idol and its possession and management alone being vested in the trustee, dharmakartha or manager. This is the normal, feature of most religious institutions in this part of the country. An express conveyance of property to named trustees to be held in trust for an idol, though perfectly legal, is not common. It should be observed that the rights of a de facto-trustee are not in all respects identical with those of a de jure trustee. A de jure trustee of a public religious endowment can be removed only for misconduct and that only in a suit instituted with the sanction prescribed by Section 92, Civil Procedure Code or Section 73 of Madras Act II of 1927. Where, however, there is-only, a de facto trustee functioning as such, it is open to persons interested in the trust to bring a suit under the above provisions alleging a vacancy in the office and requiring that it should be filled up by the appointment of a trustee by the court. This would entail the removal of the de facto trustee without any misconduct on. his part. If the de jure trustee appears on the scene and claims the office and the-properties appeartaining to it, the de facto trustee must, unless he had in the meantime perfected his title to the office by adverse possession for the requisite period, surrender possession of the office and the properties to the de jure trustee. The de facto trustee so long as he is functioning as such, has, from the necessities of the situation, the right to bring suits on behalf of and in the interests of the trust for evicting trespassers claiming adversely to the trust. In this respect and for this; purpose his rights and powers are the same as that of a de jure trustee. It is not competent to any person other than a de jure or de facto trustee to sue for recovery of possession of the properties of a religious endowment, from a person claiming to hold adversely to the trust. Whatever may be the necessity for and the propriety of a separate representation of an idol by a separate and independent next friend or guardian, when the rights of the idol and the rights of the shebait are in conflict or when the de jure shebaits or trustees of the idol are quarrelling among themselves, as regards its location and custody, treating the idol as a mere chattel as in the cases of Pramathanath Mullick v. Pradyumna Kumar Mullick (1925) 49 M.L.J. 30 : L.R. 52 IndAp 245 : I.L.R. 52 Cal. 809 (P.C), Kanhayalal v. Ahmed Ali (1933) 65 M.L.J. 811 : L.R. 60 IndAp 263 : I.L.R. 8 Luck. 351 (P.C.), it is a fallacy to treat the idol as a perpetual minor as suggested in Ramareddi v. Rangadasan (1925) 50 M.L.J. 589 : I.L.R. 49 Mad. 543. and therefore capable of being represented by any next friend or guardian ad litem. Such an assumption is extravagant and is repugnant to the sentiments and feelings entertained by the faithful. It is also repelled by authority, see Surendrakrishna v. Iswar Bhuvaneswari, affirmed on appeal by the Privy Council I.L.R. (1932) Cal. 54 affirmed on appeal by the Privy Council in (1937) 2 M.L.J. 527 : L.R. 64 IndAp 203 : I.L.R. (1937) 2 Cal. 447 (P.C.). The Indian Limitation Act has exempted a minor from the bar of limitation but this protection does not extend to an idol. The only point of similarity is that they are both incapable of managing and protecting their property and interests which have to be done through another human agency, the powers of the guardian of a minor and the manager of an idol being similar. The analogy should not be pressed further and it is not necessary or proper to have a next friend or guardian ad litem appointed for an idol in every suit in which its interests are concerned.
26. I am referring to this aspect of the case for it would introduce inextricable confusion in the administration of religious endowments if people professing to act in the interests of an idol or mutt, are allowed to bring suits in the name of the idol or the institution ignoring the manager or the head of the mutt who is living and functioning as such. As we are recognising the power of a de facto trustee to sue on behalf of an idol or a mutt, it is necessary that courts should prevent this power from being abused or exercised fraudulently or collusively to the detriment of the trust by persons professing to act on behalf of and in the interests of the idol or mutt, behind the back of the de jure manager or head of the mutt. The law is clear that where there is a lawful shebait, Dharmakartha or head of a mutt, he alone can bring the suits necessary for recovering possession of the property of the institution and otherwise protecting its interests and he ajone is the proper person to represent it in a suit filed against the mutt, temple or idol as the case may be, Prosonna Kumari Debya v. Golab Chand Baboo (1875) L.R. 2 IndAp 145 (P.C.)., Jagadindranath v. Hemanthakumari . Where there is a lawful shebait or manager, until he is removed or controlled by the Court, he can alone act for the idol. Per Rankin, C.J., see Surendrakrishna v. Ishwar Bhuvaneshwari I.L.R. (1932) Cal. 54 affirmed on appeal by the Privy Council in (1937) 2 M.L.J. 527 : L.R. 64 IndAp 203 : I.L.R. (1937) 2 Cal. 447 (P.C.). Indeed, the Privy Council has observed that in such cases, the right of suit is really in the manager or shebait though the processual law of the country allows for a suit in the name of the idol or the deity. See the Shahid Ganj case (1940) 2 M.L.J. 903 : L.R. 67 IndAp 251 : I.L.R. 1940 Lab. 493 (P.C.). Though as already stated, managers of Hindu temples are not trustees in the English sense, still, on the analogy of co-trustees, if there are more shebaits or managers than one, they are deemed to constitute one single body, as it were, in the eye of law and all of them must normally.be parties to a suit on behalf of or against the deity or the idol. If any of the managers are unwilling to be joined as plaintiffs or have themselves done acts prejudicial to the trust or otherwise precluded themselves from being plaintiffs, they should be made defendants, Rajandranath Dutt v. Sheik Muhammad Lal (1881) L.R. 81. A. 135 : I.L.R. 8 Cal. 42 (P.C.). As regards co-trustees, strictly so-called, they stand on a different footing from joint managers or shebaits, for, the property is vested in all of them ; there is unity of title and possession and their interests are joint and indivisible. But having regard to the position and status of shebaits and managers of Hindu religious endowments and their relation to the endowed property the legal title in which vests, not in the managers but only in the deity or the idol, the rule requiring all co-shebaits or managers to join in an action on behalf of the deity or idol is not so inexorable or incapable of exception or relaxation as in the case of co-trustees strictly so-called. In Rajendranath Diitt v. Sheik Muhammad Lal ; where three out of four joint shebaits omitted to implead the fourth in their suit to recover alienated property, the Judicial Committee dismissed the suit, because their Lordships were of the opinion that those plaintiffs were acting from motives personal to themselves and sought to recover the property for their own use. In. Baraboni Coal Concern, Ltd. v. Gokulananda Mahanta Thakur (1933) 66 M.L.J. 399 : L.R. 61 IndAp 35 : I.L.R. 61 Cal. 313 (P.C.)., it was held by the Judicial Committee that orie of four joint shebaits could not sue to recover his one-fourth share of the royalties payable to the deity or the idol. Their Lordships stated that the claim being laid on behalf of the deity by the plaintiff suing only as shebait, he could not competently sue for his share in the idol's interest. There was no warrant for splitting up the property of the deity in the manner the plaintiff tried to do and it was not competent to one of four joint shebaits and lessors to sue for an adequate share of the whole. ' The suit must be for the whole of the interest demised, else it fails.' There are observations of a general character in the other reported cases to the effect that all the co-shebaits or managers must join in a suit filed on behalf of the deity, whether as plaintiffs or defendants. While I agree that this should be the normal rule, I would, at the same time, express my respectful agreement with the following statement of the law by Biswas, J., in Ishwar Sridhar Jieu v. Jahorlal (1945) 49 C.W.N. 37.
As is, however, recognised in many of these cases, and is in fact implied in the statement, of the rule, it cannot be maintained as an absolute rule of law that all the co-shebaits must join in representing the deity. The rule is subject to exceptions, and circumstances may exist in which, the deity may be validly represented by some only of the shebaits, and even by a person who is not a shebait. Where a suit is a, suit by the deity represented by some of its shebaits, the question whether or not the other shebaits should be joined as parties is often, in the last analysis, a mere question of procedure and expediency : the test is whether or not, having regard to all the circumstances, of the case, the interest of the deity may be said to be sufficiently represented. See also Nirmal-Kumar v. Jyoti Prasad I.L.R. (1941) Cal. 128.
Apart from the right of the idol or the deity to sue through its duly constituted shebait or trustee, or through its de facto manager, for recovery of property belonging to it, the worshippers have a right of suit in respect of the property of a deity or idol. They have been held entitled to sue for a declaration, that a decree obtained against; the shebait or head of a mutt was not binding on the institution, Arunachalam Chettiar v. Velappa : (1915)28MLJ410 ., or to sue for a declaration that an alienation by the manager or madathipathi is an improvident transaction not binding on the institution even in the lifetime of the alienor, Chidambaranatha v. Nallasiva : AIR1918Mad464 , Naina Pillat Maracair v. Ramanathan Chetti (1923) 46 M.L.J. 546 : L.R. 51 IndAp 83 : I.L.R. 47 Mad. 337 (P.C.). The view taken in Mahant Ramacharan Das v. Naurangilal (1933) 64 M.L.J. 505 : L.R. 60 IndAp 124 : I.L.R. 12 Pat. 251 (P.C.) and Ponnambala v. Periannan Chettiar (1936) 71 M.L.J. 105 : L.R. 63 IndAp 261 : I.L.R. 59 Mad. 809 (P.C.) that such an alienation by the manager of a temple or head of. a mutt might be good during the lifetime of the alienor is no longer of practical interest in view of the amendment of Section 10. and Article 134 of the Limitation Act which makes the shebait or manager of a. religious endowment a trustee, so far as alienations of endowed property effected by him are concerned. The right of worshippers and persons interested in the institution to sue to have the alienation made by the manager or head of the mutt set aside even during his lifetime is now recognised by Article 134-A of the Limitation Act. The worshippers of the idol or the disciples of a mutt are interested in the idol or the mutt and interested in seeing that the property dedicated to it for its service is not made unavailable by any act of the manager or head of the mutt and can bring a suit for re-annexing the property to the idol or the mutt so as to ensure its proper maintenance and the performance of its services. Such a suit could and should be brought by the worshippers in their own names and not in the name of the idol, for, the worshippers do not exercise the idol's right of suit for the protection of its own interests but their own right as persons interested in the service of the idol. The idol is also supposed to exist for the benefit and in the interests of the worshippers themselves. Worshippers for whom temples have been founded are in the position of cestui que trustent or beneficiaries in a spiritual sense. See Vidhyapurna Thirthaswami v. Vidhyanidhi Thirthaswami (1904) 14 M.L.J. 105 : I.L.R. 27 Mad. 435. Venkatachalapathi v. Subbarayudu I.L.R. (1890) Mad. 293 Since the worshippers do not exercise the idol's power of suing to protect its own interests, they are not entitled to recover possession of the property improperly alienated by the manager, but they can only ask for possession being given to the manager then existing or thereafter to be appointed by the. Court after removal of the manager in appropriate proceedings. Neti Ramajogayya v. Venkatacharlu I.L.R. (1903) Mad. 450, Subramania Aiyar v. Nagarathna Naicker (1909) 20 M.L.J. 151, Srinivasacharlu v. Subuddhi : (1912)23MLJ348 ., Noor Mohammad v. Karima Bibi : (1914)27MLJ270 , Venkatarama Aiyangar v. Kasturiranga Aiyangar : (1916)31MLJ777 . Suits of the above description could be filed by the worshippers under the general law or common law as it might be called and do not fall within Section 92, Civil Procedure Code or its corresponding equivalent, Section 73 of Madras Act II of 1927, for these provisions do not authorise suits against third parties and strangers for possession of trust properties claiminga hostile title, Raghavalu Chettiar v. Seethamma : (1914)27MLJ266 ., Rangaswami v. Chinnaswam : (1915)28MLJ326 and Evalappa Mudaliar v. Balakrishna Ammal : (1927)53MLJ183 .. I am referring to this aspect of the matter to show that notwithstanding the limited right the worshippers have, to impugn unauthorised alienations by the managers of religious endowments, the properties could not be reduced into possession by them, while a de facto trustee Would be able to recover possession of such property.
27. In recognising the right of de facto trustee to sue for recovery of possession of' trust property, Courts must be astute to safeguard, the interests of the institution, for it is only in such interest that the right of suit is at all conceded to him. The de facto trustee can act only in the absence of the de jure trustee and in the interests, of the trust, and cannot keep the lawful trustee or manager out of possession. The expression ' de facto trustee ' cannot include persons who purport to act as trustees; in fraud of the rights of the existing lawful trustees. The de facto trustee would be a trespasser so far as the lawful trustee is concerned, Pattabhirama Reddi v. Balarami Reddi (1944) 2 M.L.J. 326.. A person who asserts his own title to the property of a religious endowment, who does not sue as trustee or manager of the endowment and who claims to recover the property for himself and not for the trust, can never be allowed to sue as a de facto trustee. He is entirely in the position of a trespasser so far as; the. trust is concerned and cannot be considered to be one who has taken upon himself the duties and obligations of a trustee. If a man forcibly, violently and (dishonestly takes possession of trust properties under a false claim to be a trustee or if there is a scramble for possession between rival contestants, the claim of de facto trusteeship is untenable. A fugitive or isolated act of a person with regard to the property of a religious endowment would not make him a de facto trustee One swallow does not make a summer. There must be a continuous course of conduct, the length of the same depending on the facts and circumstances of the case. The possession of the office or the institution which is the object of the trust and the exercise of the rights pertaining to that office, would be important indicia- of a de facto trusteeship, cf. Chinna Alagamperumal v. Vinayakathammal : AIR1929Mad110 .,. Hanumayamma v. Lakshmidevyamma : AIR1938Mad950 . Harilal Ramchodv. Gordhan Keshav I.L.R. (1927) 51 Bom. 1040. In the case last cited which related to a de facto guardianship, Crump, J., observed that that term implied some continuity of conduct, some management of the property beyond an isolated act of alienation which alone was in question in that case.
28. A person who bona fide takes charge of the office of trustee and acts in the character of a trustee under a title which is afterwards found to be invalid would, during the period he functions, be a de facto trustee. The office of trustee is hereditary in many cases and is filled by an election or appointment in other cases. The question of succession to the office of trustee is often the subject of prolonged litigation in several Courts with varying results. Sometimes, owing to defects in the machinery provided for the appointment of new trustees, whether it is by nomination or by election, the office of trustee remains unfilled. Sometimes, the validity of the nomination or election of a trustee or head of a mutt is contested in Courts from the lowest to the highest and our reports teem with cases where succession to the headship of a mutt has been contested for decades to the bitter end. Sometimes the trustee elected or nominated or succeeding by hereditary right is unwilling to act or is incapable of acting and the affairs of the institution, if uncontrolled by any responsible person, would fall into chaos and disorders. A de facto trustee or manager who assumes possession of the office and manages the property in the interests of the deity to the satisfaction of the worshippers docs not deserve the appellation of a trustee de son tort or a wrong doer. If a de facto trustee is guilty of any breach of trust, he can be removed like a de jure trustee. The law fixes him with the responsibility for the proper administration of the trust and also gives him the power to act on behalf of and in the interests of the trust, until a lawful trustee emerges. Cases have arisen where there has been an interregnum between the death of one trustee and the succession of another and the trust has lost its title to the property improperly alienated by the deceased trustee. See Venkateswara Sarma v. Venkatesa : (1941)1MLJ644 . In holding in the case last cited that the title of the trust was barred, His. Lordship Venkataramana Rao, J., in his order of reference referred to the enactment of Article 134-B fixing the death of the previous matavthipathi or manager as the starting point of limitation and observed as follows:
What was contemplated by the Legislature was that though there may be no dejure manageij there would be some one functioning on behalf of the mutt till a manager is constituted and he would be capable of instituting the suit on behalf of the institution. It has not been shown in this case and the burden is on the plaintiff to show that there was no person in possession of the mutt or its properties who could have instituted a suit to recover possession of the properties.
The case in Mahant Ramcharan Das v. Naurangilal (1933) 64 M.L.J. 505 : L.R. 60 LA. 124 : I.L.R. 12 Pat. 251 (P.C.)., was also referred to and relied on by the learned Judge. The present case itself furnishes an instance of the desirability of recognising the right of a de facto trustee to bring a suit for recovery of the properties of a Hindu temple. The de jure trustee alienated the properties of the temple and his whereabouts have not been known for some years. The succeeding trustee appointed under a compromise decree passed by the Court brings a suit for recovery of possession of the alienated property, and is met with the defence that his title to the trusteeship is not well founded and he should be non-suited for that reason. Reason, convenience and positive authority alike impel me to hold that the decisions in Vedakannu Nadar v. Ranganatha Mudaliar : AIR1938Mad982 and Atmaram Rao's Charity v. Packiri Muhammad (1944) 1 M.L.J. 35, are erroneous in. so far as they decided that a de facto trustee is in the position of a trespasser and wrongdoer and cannot sue for recovery of property belonging to a Hindu religious institution on behalf of that institution from a person holding adversely to and in denial of the title of the trust.
29. After preparing this opinion I have had the advantage of reading the judgment of My Lord with whose reasoning and conclusions I entirely agree.
Raghava Rao, J.
30. I also concur in the conclusion of My Lord the Chief Justice that this appeal must be dismissed.
31. It is obvious that unless the two Privy Council decisions reported in Mahant Ram Charandas v. Naurangilal (1933) 64 M.L.J. 505 : L.R. 60 IndAp 124 : I.L.R. 12 Pat. 251 (P.C.) and Mahadeo Prasad Singh v. Karia Bharti (1934) 68 M.L.J. 499 : L.R. 62 IndAp 47 : I.L.R. 57 All. 159 (P.C.), can be distinguished on some rational, intelligible ground from the decision in Vedakannu Nadar v. Ranganatha Mudaliar : AIR1938Mad982 ., the latter must stand overruled by us, I sought such a differentiation from Mr. Suridaram Aiyar, the learned advocate for the appellant, during the progress of the hearing of the appeal. He suggested that the two Privy Council decisions, being in respect of a suit by the de facto manager of a mutt, would not necessarily govern the case of a suit by the de facto manager of a temple. There seems no doubt to be some little authority for such a line of discrimination in certain observations to be found in Prasanna Deb v. Bengal Duars Bank : AIR1936Cal744 .: But the distinction drawn will be found on reference to the observations of the Privy Council on appeal in the same case reported in Iswar Ramthandra v. Bengal Duars Bank , to be a distinction between the de facto managership of a mutt and the de facto shebaitship of a private idol The distinction is not between the de facto managership of a mutt and the de facto Dharmakarthaship of a public temple or idol. It is true, as pointed out by Mr. Sundaram Aiyar, that between a Mahant and a Dharmakartha there exists a fundamental difference, that the former has a beneficial interest in the property of the institution which the latter has not. The firm has 'an ownership in trust' to adopt the language of Lord Shaw in Ram Prakash Das v. Anand Das (1916) 31 M.L.J. 1 : L.R. 43 L.A. 73 : I.L.R. 43 Cal. 707., an ownership which carries with it some measure of personal, beneficial enjoyment also ; whereas the latter is, to use the language of the same learned Lord in Srinivasachariar v. Evalappa Mudaliar , the legal equipollent to a trustee whose rights are generally never in a higher legal category that those of mere trustees.
32. Why this difference should make a difference to the maintainability of a suit of the kind now in question according as the suit is at the instance of a de facto Mahant or a de facto Dharmakartha of a, public temple, I am not able to understand or appreciate on principle. Both, not strictly speaking trustees, occupy positions analogous to that of a truatee. In the case, of a public temple as well as of a mutt, the public institution is the juristic entity holding property on whose behalf the suit is laid. And if in the case of a mutt, a de facto manager had the locus standi to file a suit for recovery of possession of mutt properties outstanding in others, I should be loath to deny a similar right to the de facto manager of a public temple. The implication, if any, of the observations of the Privy Council in Iswar Ram Chandra v. Bengal Duars Bank , is, in my opinion, rather that, in the case of the de facto manager of a public temple suing, there is no difficulty in the way of the mutt, decisions in Mahant Ramcharandas v. Naurangilal (1933) 60 I.A. 124 : 64 M.L.J. 505 : I.L.R. 12 Pat. 251 and Mahadeo Prasad Singh v. Karia Bharti (1934) 62 I.A. 47 : 68 M.L.J. 499 : I.L.R. 57 All. 159 (P.C.), applying.' Further there is just another case reported in Aravamudha Aiyangar v. Ramanuja Aiyangar : AIR1939Mad154 to which I may refer here. That was also like Vedakannu JVadar v. Ranganatha Mudaliar : AIR1938Mad982 . not the case of a mutt. In that case the son of a dejure trustee after the latter had for good left for a foreign place, sued to recover properties wrongfully alienated by him. That case was decided on the 17th of August, 1938, the case reported in Vedakannu Nadar v. Ranganatha Mudaliar : AIR1938Mad982 . having been decided on the 6th May of the same year. No reference is made in the later decision to the earlier ; but in the later decision reference is made to the two Privy Council decisions in Mahant Ramcharandas v. Naurangilal (1933) 60 I.A. 124 : 64 M.L.J. 505 : I.L.R. 12 Pat. 251 and Mahadeo Prasad Singh v. Karia Bharli (1934) 62 I.A. 47 : 68 M.L.J. 499 : I.L.R. 57 All. 159 (P.C.) and an argument founded upon them of a right to sue on the basis of de facto trusteeship was repelled by the learned Judges, Varadachariar and Abdur Rahman, JJ. (the latter of whom, it may be noticed, by the way, had himself been a party to the earlier decision sitting with Venkatasubba Rao, J.), not on the ground that the Privy Council decisions could only govern cases of suits by de facto managers of mutts but on the ground that the allegations in the plaint in the case then before the Court did not attract the application of the Privy Council decisions. The implication, if any, of the observations of Varadachariar, J., who delivered the judgment of the Bench, in that case is also adverse, I should think, to the line of differentiation' suggested by Mr. Sundaram Aiyar.
33. In this view of the 'matter, the decision in Vedakannu Nadar v. Ranganatha Mudaliar : AIR1938Mad982 , which suffers from the rather serious infirmity that it does not even so-much as refer to the two Privy Council decisions, must be held to have been erroneously decided. With reference to the decisions of this Court subsequent to Vedakannti Nadar even Ranganatha Mudaliar : AIR1938Mad982 . I may observe that as against the decision of Horwill, sitting singly, reported in Atmaram Rao's Charity v. Packiri Mohammed Rowther (1944) 1 M.L.J. 35 two Privy Council decisions are distinguished and the decision in Vedakannu Nadar v. Ranganatha Mudaliar : AIR1938Mad982 is followed, there is the decision of another Bench of this Court reported in Gudur Anjayya and Anr. v. Devabhakturu Gunda Nayudu and Ors. : AIR1943Mad381 containing observations relevant to the point now before us, in which, while Vedakannu Nadar v. Ranganatha Mudaliar : AIR1938Mad982 . is, not noticed, the latter of the two Privy Council decisions is referred to as showing that the proposition that a de facto trustee can maintain the suit in the name of the temple and for its benefit, if he is in actual possession and management of the temple and its properties, is no longer open to question. The mode of differentiation of the two Privy Council decisions attempted by Horwill, J., has not appealed to me, and I respectfully agree with My Lord in what I may be permitted to characterise as his lucid exposition of the two Privy Council decisions based upon a detailed scrutiny of the facts and circumstances of each of them, as well as in his Lordship's; exhaustive treatment of the entire case-law bearing on the point which falls to be decided by us.
34. Having said so much with reference to the position created by precedents of the highest tribunal binding on us, I shall proceed to examine the soundness of the decision in Vedakannu Nadar v. Ranganatha Mudaliar : AIR1938Mad982 ., from the standpoint of principle-Judged from this standpoint also, the decision strikes me as not being altogether right. Apart from analogical reasoning derived from Privy Council decisions refusing to recognise the existence of a de facto guardian under the Muhammadan law, which are not directly in point, the principle on which the decision in Vedakannu Nadar v. Ranganatha Mudaliar : AIR1938Mad982 , directly rests is that a de facto trustee is a trustee de son tort, and that a trustee de son tort has no right of action of the kind now in. question. On the careful consideration that I have bestowed on the matter, I am prepared to accept the first part of the assumption as correct, but not^the second I accept the first part, because it seems to me that it is not open to us to invent a tertium quid between a de jure trustee and a trustee de son tort which there is not in law, if you understand the expression 'trustee de son tort' in its true sense (which I shall elaborate in the immediate sequel) to give such a tertium quid the label de facto trustee, which does not in its connotation differ from a trustee de son tort and then to clothe him with powers which he cannot, on the assumption that he is an intermeddler with the trust estate, enjoy as a matter of course. That there is little or no difference between a de facto trustee and a trustee de son tort becomes clear by a reference to a passage at page 232 of Maitland on Equity (2nd Edition), where the learned author points out that trustees de son tort may better be described as de facto trustees. At the same time I cannot accept the second part of the principle of the decision in Vedakannu Nadar v. Ranganatha Mudaliar : AIR1938Mad982 .. because even an intermeddler with an estate not his own may have certain rights against the whole world except the true owner. The trustee de son tort has undoubtedly certain rights to which my learned brother, Viswanatha Sastri, J., has referred in his judgment. Such rights are not merely of reimbursement of expenditure incurred for the preservation of the estate on the principle of salvage lien laid down in Peruvian Guano Co. v. Dreyfus Bros.(1892) A.C. 166. Dakhina Mohan Roy v. Saroda Mohan Roy and Kasim Sahiba v. Sudhindra ThirthasiSami I.L.R. (1895) Mad. 359, but also of dealings with property for the benefit of the estate, which, as a conductive trustee, that he is, (as I shall show presently), he is entitled to exercise. The only question is whether he has a right of suit of the kind now in question before us,
35. My learned brother, Viswanatha Sastri, J., observes that there is some amount of confusion discernible in the language employed by English Courts in their description of the status of persons occupying a fiduciary position, and that in English Law Reports a trustee de son tort is sometimes regarded as an express trustee and sometimes as a constructive trustee. Be that as it may. With reference, however, to the meaning of the expression ' trustee de son tort' in English law (which, by the way, is not to be found mentioned as such in any Indian enactment relating to trusts) there is, in my opinion, no confusion. This expression which corresponds to the term ' trustee ex deliclo ' or 'ex male ficio' familiar to American lawyers, and jurists (vide Cyclopedia of Law and Procedure, Vol. 39, page 34) has a twofold meaning in English law. It denotes either (1) a person who has acquired by means of his ownership of or dealings with one trust property other property not expressly subject to a trust, or, more strictly, (2) a person who holds property which is subject to an express trust without having duly become trustee thereof or acquired a fiduciary position in respect thereof (vide Halsbury's Laws of England, and edn., Vol. 33, page 138 paragraph 235, and foot-note (c) thereof). In either case, as is apparent there is the idea of wrong in which this trusteeship originates -wrong by abuse of a pre-existing fiduciary position in respect of other property in the one case, wrong by way of entry into possession of trust property qua trust property without any title whatsoever in the other case. There are in English law (as also in American) implied trusts-trusts resulting and trusts constructive of various kinds corresponding to ' obligations in the nature of trusts ' specified in Chapter IX of the Indian Trusts Act, and the constructive' trustees denoted by the two-fold meaning of trustee de son tort in English law are dealt with in Section 88, and as I presume, in Section 94, illustration (b) of the Indian Trusts Act. That a trustee de son tort in its second meaning may, while prima facie falling under illustration (b) of Section 94 of the Indian Trusts Act, not as easily seem to fall within the body of the section, I admit. That is because there are the words ' there being no trust ' in the body of the section, whereas the second sense of the expression ' trustee de son tort' assumes the existence of a trust by entering into possession of which the person so entering makes of himself a trustee de son tort ; but if one understands the expression ' there being no trust ' as meaning ' there being no trust quad the person entering into possession ' there will be no difficulty and to^ my mind there seems to be no strain on language involved in so understanding the expression. Even otherwise, a person in India fulfilling the position of a trustee : de son tort as known to the English law, may in my opinion be regarded as at least a constructive trustee with the rights and obligations attaching to such a trustee, on an equitable application of the English law which regards him as at least a constructive trustee. The application to India of rules of English law as rules of Justice, Equity and good conscience, if not repugnant to the express provisions of an Indian Statute and not unsuitable to Indian conditions is not unknown and there is no reason why such a process should not be invoked in this connection.
36. I have not been able to find, I must say, any decided case or any passage in any text book on the English law of trusts to the specific effect that a trustee de son tort, in either sense imputed to the expression in English law, has or has no right of suit of the kind now in question. Generally it is stated in the books that a trustee must take all reasonable and proper measures including the institution-, of legal proceedings, if necessary, to obtain possession of trust property, if outstanding. That a trustee de son tort must not take such proceedings is nowhere stated. In India we have not only the provisions of Sections 12. and 13 of the Trusts Act from which such right on the gart of the trustee can be readily inferred, but also Section 95 of the Act which provides that the person holding property in accordance with the preceding sections of Chapter IX must, so far as may be, perform the same duties and is subject to the same liabilities and disabilities as if he were a trustee of the property for the person for whose benefit he holds it. The right of suit of the kind now in question may well be regarded in the case of a constructive trustee as an incident of the duty to call in trust property laid down for a trustee generally by the Act and must be available also for a trustee de son tort as a constructive trustee, which he certainly is in my judgment, whether or not he is an express trustee. My learned brother, Viswanatha Sastri, J., has attempted to show by reference to certain statutes in India that a trustee de son tort is capable of being regarded as an express trustee. Whether he is not to be regarded as trustee for purposes of those Acts only, which specifically include him in their definition of trustee but for which it might be contended that he would not be an express trustee, I do not know for certain ; but I must express my hesitation on principle to subscribe readily to any view that makes of a trustee de son tort an express trustee to all intents and purposes of the law.
37. It follows from the foregoing that a trustee de facto like a trustee de, son tort with whom the learned Judges who decided Vedakannu Nadar v. Ranganatha Mudatiar (1938) M.L.J. 663. equate him, cannot be regarded, so far as the expressed principle of the reasoning of that decision is concerned, as lacking in the locus standi to maintain a suit of the kind with which we are concerned.
38. I must confess, however, that I should have experienced greater difficulty in the determination of the point in controversy, had there not been available to me the guidance afforded by the two Privy Council decisions reported in Mahant Ramcharan Das v. Naurangilal (1933) 64 M.L.J. 505 : L.R. 60 IndAp 124 : I.L.R. 12 Pat. 251 (P.C.) and Mahadeo Prasad Singh v. Karia Bharti (1934) 68 M.L.J. 499 : L.R. 6 IndAp 47 : I.L.R. 57 AH. 159 (P.G.)., and had I not found myself on principle able to conclude that a trustee de son tort has the right of action now in dispute. I quite agree that there are fundamental points of difference between the conception in English law of trust strictly so called which is embodied in the Indian Trusts Act and the conception of trust' associated in India with Hindu and Muhammadan religious and charitable endowments which are expressly excluded from the operation of the Indian Trusts Act. I entertain my own doubt however whether this consideration per se would have persuaded me to hold that a de facto manager of a temple or mutt is entitled to institute proceedings for recovery of property belonging to the institution.
39. Even assuming that, whether in the case of the Dharmakartha of a temple or in the case of the head of a mutt, the position occupied by the human agency functioning is that of a manager on behalf of the institution which is itself a juristic entity capable of holding property in ownership, the question still remains why in either case where the human agency is functioning de facto and not de jure, there should be a right of suit which is ordinarily available only to a person functioning dejure. In the case of a strict trust as well as in the case of a trust connected with a mutt or temple you have an officer functioning, and there is an office of which he is the incumbent. The officer is a fiduciary in both the cases, though the description ' trustee ' may not be strictly applicable to the latter. Assuming that the title to the mutt or temple property is different and distinct from the title of a person to represent the mutt or temple property in a litigation, is not a proper representation of the mutt or temple by the dejure manager a matter on which the defendant is entitled to insist in his own interest in order to escape the avoidable harassment of unnecessary suits at the instance of possibly irresponsible individuals as well as in the interests of the institution Is it so clear that a de facto manager can sufficiently represent the institution to render all decrees and decisions to which he is a party as its representative binding on the institution In the case of mutts or temples, as my Lord has pointed out, the worshippers, the Advocate-General, a prospective shebait, and any person interested in the temple or mutt are allowed to institute a suit for the enforcement of the rights of the temple or mutt; but does it therefore mean that you can add to the recognised classes the de facto manager so called The worshippers have the right of suit, I think, because they are beneficiaries, at any rate ' in a spiritual sense ' to use the language of Bhashyam Aiyangar, J., in Vidhyapurna Thirthaswami v. Vidhyanidhi Thirthaswami (1904) 14 M.L.J. 105 : I.L.R. 27 Mad. 435. The rights of action of the Advocate-General and of the relators are statutory. That of a prospective shebait recognised in cases like Gopal Jew v. Baldeo Narainsingh (1947) 51 C.W.N. 383 and Tarit Bhusan v. Sridhar Thakur : AIR1942Cal99 is because he is in the line of succession and is a reversionary, although I have to observe in this connection that there are two reported decisions of this Court in which auch recognition has been refused- Ramaswami Goundan v. Singaperumal Kadavul (1923)50 M.L.J. 42 and Aravamudhu Iyengar v. Ramanuja Iyengar : AIR1939Mad154 ., it being poinfed out in the former of them and accepted in the latter that the appropriate course is for the worshippers to file a suit of the kind prescribed by Section 92 or Order 1, Rule 8, Civil Procedure Code. But. whence comes the right of the de facto manager to sue
40. Then, again, where and how are we to draw the line between a manager de facto and a manager ad hoc exercising isolated acts on particular occasions I respectfully agree with my learned brother Viswanatha Sastri, J., in his picturesque observation that one swallow does not make a summer ; but the practical question still remains, how many do Even in the case of a de facto guardian in Hindu law that difficulty has been felt, and it is bound to be felt similarly in the case of a de facto manager. In the case of the former the tendency has now a days been, in fact, to confine his powers to the limits already recognised by decisions on the principle stare decisis and not to extend them beyond such limits. (Vide Pundarikakshayya v. Sreeramulu : AIR1946Mad1 and Ramaswami Pillai v. Kasinatha Iyer (1927) M.W.N. 356.) One eminent Judge, Beaumont, C.J., of the Bombay High Court now on the Privy Council, has even refused to recognise a de facto guardian as guardian at all in his dissident judgment in Tulsidas v. Vaghel Raisinghji I.L.R. (1932) 57 Bom. 40 holding that his situation which is that of an unauthorised person cannot b'e bettered, to use the language of Lord Robson in the Privy Council decision reported in Matadin v. Ahmed Ali (1912) 23 M.L.J. 6 : L.R. 39 IndAp 49 : I.L.R. 34 All. 213 (P.C.) by describing him as a de facto guardian.
41. Can anybody then sue on behalf of the institution as 'anybody can on behalf of a minor Is the analogy between a minor and an institution to be pushed so far as to attract to the latter the provisions of Order 32, Civil Procedure Code, applicable to the former If not, (as ruled for instance in Doongarsee Syamji v. Tribhuman Das A.I.R. 1947 All. 375., how best to make sure that the person suing on behalf of the institution does not enter into improper agreements or compromises pre-decretal or post-decretal, or walk away with the monies representing the fruits of a particular decree obtained on behalf of the institution If that is not possible, is it any consolation that at the hands of a de jure manager too the institution may sustain sometimes a similar detriment
42. Thoughts such as these, I may say, exercised my mind in no inconsiderable measureng the argument as well as after reservation of judgment. But the existence of binding precedents of the highest authority which are undistinguishable in principle and the conclusion reached by me that a de facto trustee or a trustee de son tort has, as a constructive trustee, a right to sue of the kind now in question render the pursuit of the, lime; of thought involved in such queries and enquiries at once otiose and impermissible. Apparently the Privy Council proceeded in ruling,as it did in Mahant Ramcharan Das v. Naurangilal (1933) 64 M.L.J. 505 : L.R. 60 IndAp 124 : I.L.R. 12 Pat. 251 (P.C.) and Mahadeo Prasad Singh v. Karia Bharti (1934) 68 M.L.J. 499 : L.R. 62 IndAp 47 : I.L.R. 57 All. 159 (P.C.)., on the view that possession of the institution and management of its affairs is itself good title effective to clothe anybody who has such possession., and management with the right to institute suits for recovery, not merely of property of which he or the institution represented by him gets dispossessed after his assumption of management, on the basis of possessory title well-known to law (vide for instance Perry v. Clissold (1907) A.C. 73. and Narayanarao v. Dharmachar (1902) 13 M.L.J. 146 : I.L.R. 26 Mad. 514; but also of trust property which had before such assumption of management been wrongfully alienated or had otherwise passed out of the possession of the head of the mutt or the idol of the temple. Presumably the interests of the institution have been regarded. by the Privy Council as so far paramount as to justify the conclusion that a de facto manager should in the absence of a de jure manager be allowed the right to maintain, such suits, and it would require more than ordinary courage on the part of any one to suggest that such a point of view which finds warrant in principle as well as in decisions of the highest authority binding on all Courts in India is still open to-consideration here and now.