Khanna, J. - (1.) A decree for ejectment from the premises in dispute and for recovery of Rs. 7,163/12/3 was awarded by learned Additional Sub-Judge Patna in favour of the two plaintiff-respondents against the Board of Trustees. T. K. Ghosh's Academy Patna and other defendants. On appeal filed by some of the defendants the Patna High Court set aside the decree for ejectment. The amount for the recovery of which decree had been awarded by the trial Court was also reduced to Rs. 3,725/2/-. The present appeal has been filed on certificate by the Managing Committee T. K. Ghosh's Academy and other defendants against the decision of the High Court.
(2.) The two plaintiff-respondents are the sons of Shri Jadu Nath Palit who founded in 1876 a school known as T. K. Ghosh's Academy. The school attracted some of the best students and Dr. Rajendra Prasad, Dr. B. C. Roy, Mr. Hasan Imam and Mr. Sachidanand Sinha received their education in this school. The school was run in premises which originally belonged to one Mr. Boilard. Shri Jadu Nath died in 1901 leaving behind three minor sons, two of whom were the plaintiff-respondents and the third was their brother Dr. K. L. Palit. After Jadu Nath's death ,the management of the school was looked after by the sons of Shri T. K. Ghosh in whose memory the school had been founded. Shri T. K. Ghosh was the brother-in-law of Shri Jadu Nath. A Managing Committee was formed by the sons of T. K. Ghosh for the management of the school in 1905 or 1906. Neara bout 1914 the management of the school was taken over by Shri Jadu Nath's sons. In 1918-19 the Managing Committee of the school was reformed under the directions of the Board of Secondary Education. On September 11, 1919 the school building was purchased by the three sons of Shri Jadu Nath from Mr. Boilard as per sale deed Ex. C. On July, 28, 1930 Dr. K. L. Palit sold his share in the school building in favour of his two brothers, viz., the plaintiff-respondents, as per sale deed Ex. Cl. On August 13, 1950 the two plaintiff-respondents executed Deed of Trust Ex. P. appointing Rai Bahadur Nirmal Chandra Ghosh, Retired District and Sessions Judge and six other as trustees of the school. The object and the subject matter of the trust would be clear from the following: "Whereas the settlers are the proprietors of the High English School named T. K. Ghosh's Academy now located in a building owned and possessed by the settlors situated in Mahalla Chowahatta thana Pirbahore district Patna. And Whereas the settlors being desirous of the continuance of the school and the perpetuation of the memory of the person after whom it is named and the association of same with the name of the institution, of the retention in it of Bengali as a subject of instruction and also as a medium of instruction as far as possible and also of the improvement, extension or alteration as regards the standard and subjects of instruction in the institution as may be considered suitable for the benefit of students, have decided to settle in trust for this purpose the said school consisting of its name good will together with its funds, furniture, library and other educational appliances and equipments as a functioning institution affiliated to the Patna University in the manner and on the condition hereinafter following. Now this Deed witnesses as follows:- 1. In pursuance of the said desire of the settlors the settlors do hereby transfer and assign unto the trustees the said High School T. K. Ghosh's Academy with all that property consisting of the funds, furniture, library and equipments described and detailed in the schedule hereto to hold the same upon trust to fulfil the object of the settlors and on the conditions and with and subject to the powers provisions and agreements herein contained." Clauses 4, 6, 9, 10, 11 and 15 of the trust read as under: "(4) The trustees will be entitled to nominate 2 (two) members out of themselves, to the managing committee of the school in addition to the Headmaster who will ex officio be a member. (6) At least one male descendant of Babu Jadu Nath Palit deceased shall, if available, be always, a member of the body of trustees. (9) The trustees shall find other premises for the location of the school and shift the school there within 5 (five) years of the date of the deed and vacate the present premises to the settlors. (10) The trustees shall forthwith start a building fund for the school. (11) The settlors will receive a house rent of Rs. 250/- per month for the said period of 5 (five) years for the premises now occupied by the school as owners of the premises. The settlors have agreed that any surplus left over therefrom, after deducting the amount spent on necessary repairs of the house and on taxes, ground rent and other necessary outgoings in respect of the premises for the said period of 5 (five) years will go as the contribution of the settlors to the building fund as provided in the preceding paragraph and the trustees will be entitled to receive directly from the school such surplus and deposit it in the said building fund. (15) All matters and questions relating to the proprietary rights in the school (exclusive of the land and buildings where in the school is at present located, which does not form part of the trust property) and its properties will be disposed of by the trustee". It may be stated that the school building initially stood on holding No. 20. In 1951 the building was extended to holding No. 22 also. The upper portion of the building on holding No. 22 is used for the headmaster's residence and the lower portion for running the classes. According to the plaintiff-respondents, it was agreed that they would be paid a rent of Rs. 37/8/ for the building on holding No. 22. The total rent thus came to Rs. 287/8/- i.e. Rs. 250 for the building on holding No. 20 and Rs. 37/8/- for the building on holding No. 22. It is further the case of the plaintiffs that in or about June 1956 it was settled by the trustees and the Managing Committee of the school with the consent of the plaintiffs that out of the monthly rent of Rs. 287/8/- a cash amount of Rs. 190/- would be paid directly to the plaintiffs and the balance of Rs. 97/8/- would be paid by the Managing Committee of the school to the trustees for payment of latrine and water taxed of the municipality and for meeting costs of periodical repairs. As the premises were not vacated within five years of the execution of the Deed of Trust, the plaintiff-respondents after serving notice of demand filed the present suit on July 28, 1959 against the Board of Trustees T. K. Ghosh's Academy and other defendants. One of the reliefs claimed was for ejectment of the defendants from the premises in dispute. The other relief claimed was for recovery of Rs. 7, 163/12/3 on account of arrears of rent from August, 1956 till July, 1959 and other items, the details of which were given in Schedule 1 to the plaint.
(3.) The suit was contested by defendants Nos. 2, 3, 7 and 12 in their capacity as members of the Managing Committee. The other defendants, including the trustees, did not contest the suit. According to the contesting defendants, there was no relationship of landlord and tenant between the plaintiffs and T. K. Ghosh's Academy and its Managing Committee. It was also stated that there was no contract to pay the rent of Rs. 287/8/- per month. The Deed of Trust was stated by the contesting defendants to be fraudulent. illusory and void document. According further to the contesting defendants the school was founded by the father of plaintiffs for the uplift of education and for public good with no motive to derive any personal benefit. The building was also stated to have been dedicated by the founder for the use of the public.;