Venkatasubba Rao, J - (1.)This is a relator's suit under Section 92 of the Civil P. C. filed with the sanction of the Advocate-General. The suit property originally belonged to one Kaveri Ammal. By a registered deed dated the 21 September 1914, she dedicated the property to charity appointing two trustees (1), Ramanuja Mudaliar; and (2) Bhashyam Naidu.. It is not disputed that, so far as the language of the deed is concerned, the dedication was complete and that the donor reserved no rights for herself in the property. About seven years after this Kaveri Ammal executed a Will of which Probate has been obtained by the defendant. The latter is not strictly the granddaughter of Kaveri Ammal, because she is only the daughter of Kaveri Ammal's son-in-law. The Will deals with two properties, one of them being the suit property. These two houses are bequeathed to the defendant and she is directed to perform certain charities.. The object of the trust deed of 1914 is the performance of utsavams in the temple of Sri Ranganatha in Tiruneermalai village. It is necessary to notice the difference between the provisions of the trust deed and the provisions of the Will. Whereas, under the trust deed the entire income of the suit property was to be spent in performance of utsavams at Tiruneermalai, under the Will the defendant takes the suit house and the other house, the gift being burdened with an obligation to spend Rs. 50 in performing utsavams at the said temple of Sri Ranganatha in Tiruneermalai and to spend another sum of Rs. 50 in conducting certain other utsavams in the temple of Parthasarathi at Triplicane Madras. It will be noticed that by the Will, the income of the two houses is amalgamated and a composite trust is created. This is again a point of difference between the deed and the Will. What the defendant now does is this: she repudiates the trust and takes her stand upon the Will. She says that, so far the suit property is concerned, it remains in her, but that she is willing to carry out the charities mentioned in the Will in accordance with its terms. Thus, the defendant repudiates the trust and sets up a right adverse to it. In these circumstances, the defendant raises the question: Is the suit filed under Section 92 maintainable?
(2.)I have been asked by the learned vakil for the defence to say that the suit is not maintainable as being one against an alienee or trespasser. The defendant does not, of course, claim title under a conveyance inter vivos, but she relies upon a testamentary disposition in her favour. The testatrix, professing to be entitled to deal with the property, bequeathed it to the defendant, and the latter says that the property is hers. She is thus in the position of an alienee who sets up a claim adverse to the trust. The question to be decided is, can such a suit be instituted under Section 92? To answer this question I must turn to Section 92, for after all, the answer depends upon the right construction of that section. I shall read only what I think is the relevant portion of that section so far as the present point is concerned. Where the direction of the Court is deemed necessary for the administration of any such trust (any express or constructive trust created for public purposes of a charitable or religious nature) two or more persons having an interest in the trust and hiving obtained the consent in writing of the Advocate-General may institute a suit and obtain a decree.
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