K. N. Srivastava, J. - (1.) THE following three questions have been referred to us :- 1. Whether a relief for declaration that a property is endowed property so as to bind strangers to the trust can be granted in a suit under Section 92 of the C. P. Code? 2. Whether the plaintiffs in a suit under Section 92 of the C. P. Code, can claim reliefs, which do not find a mention in the permission or sanction granted by the Advocate-General under Section 92 of the C. P. Code, and 3. Whether clause (c) of sub-section (1) of Section 92 of the C. P. Code contemplates only vesting a title in the property in a trustee?
(2.) WE propose to answer these questions in seriatim. Question no. 1 really consists of two questions, one as to whether a declaratory decree can be passed in a suit under Section 92 of the Code of Civil Procedure, and whether in such a suit a stranger can be made a party. One would have thought that the curtain on this controversy had fallen after the decisions of the Privy Council in the case of Abdur Rahim v. Abu Mahomed Barkat Ali (AIR 1928 PC 16) and of the Supreme Court in the case of Pragdasji v. Ishwarlalbhai, (AIR 1952 SC 143) and in the case of Bishwanath v. Sri Thakur Radha Ballabhji (AIR 1967 SC 1044), but counsel for the respondents has by reference to a large number of cases including some of this Court made a futile attempt to establish that this is not so. It is as such necessary to examine the various decisions on this point. In AIR 1928 PC 16 (supra), a suit under Section 92, C.P.C. by some Mohammadans was filed against Rukia Bibi as defendant, for removal of Rukia Bibi from the office of Mutawalli, for account and for settling a scheme for the management of the said properties. Sanction for this suit and these reliefs had already been obtained from the Advocate-General. The plaint of the suit was subsequently amended by addition of certain persons who were strangers and were claiming the property as their personal property, and by addition of a prayer for declaration that the property in suit was waqf property and not the personal property of the defendants. No sanction of the Advocate-General was obtained for this amendment. A compromise application was filed to which one of the plaintiffs was not a party and a compromise decree was thereafter drawn up. By this compromise, a portion of the disputed land was declared as waqf property and the rest as secular property of the newly added defendants. These newly added defendants thereafter alienated the property, and another suit was filed by five Mohammadans against the newly added defendants of the first suit and their alienees. In this suit, it was prayed that the alienated land be declared as waqf property, and the defendants be restrained from obtaining possession or realising rent and for a declaration that the compromise decree was not binding on the plaintiffs. When the matter went up before the Privy Council, it was contended that the second suit could not have been filed without obtaining the sanction of the Advocate-General. It is necessary to notice at this stage that the reliefs in the second suit were mostly declaratory in nature, and one for an injunction. Their Lordships of the Privy Council rejected this contention, and held that the reliefs prayed for in the second suit were outside the scope of a suit under Section 92, C.P.C., and that Section 92 applied only to those suits in which the reliefs specified in Section 92 (1), C. P. C. were claimed. Their Lordships of the Supreme Court had occasion to consider this case in the case of AIR 1952 SC 143 (supra) and approved this view of the Privy Council, and held that a suit for declaration that certain property appertains to a religious trust may be filed under the general law, but was outside the scope of Section 92, C. P. C. In Abdul Rahim' case AIR 1928 PC 16 (supra) their Lordships of the Privy Council also considered the question as to whether relief against third parties or strangers could be obtained in a suit under section 92, C. P. C. In considering this question, their Lordships also considered the provisions of section 539 of the Code of 1877 and held that Section 92, C. P. C. did not contemplate granting reliefs against third parties. The contention that such a relief fell within the scope of Section 92, was repelled. The noble Lords on this aspect of the controversy opined the page 19 of the report as under :- "Their Lordships see no reason to consider that Section 92 was intended to enlarge the scope of Section 539 by the addition of any relief or remedy against third parties i.e., strangers to the trust. They are aware that the Courts in India have differed considerably on the question whether third parties could or should be made parties to a suit under Section 539. but the general current of decisions was to the effect that even if such third parties could properly be made parties under Section 539, no relief could be granted as against them. In that state of the previous law, their Lordships cannot agree that the Legislature intended to include relief against third parties in cl. (h) under the general words 'further or other relief.' The conclusion is that, inasmuch as the suit out of which this appeal arises did not claim any such relief as is specified in sub-s. (1), Section 92, that section was no bar to the maintainability of the suit without the sanction of the Advocate General and in the Court of the Subordinate Judge." We have already adverted to the decision of the Supreme Court in AIR 1952 SC 143 (supra) which approved of the aforesaid view of the Privy Council, but inasmuch as counsel for the respondents has contended that there are certain observations in the judgment of the Supreme Court in this case which lead to the inference that a declaratory relief can also be given in a suit under Section 92, C. P. C. we think it necessary to extract the relevant portion of this judgment at page 144 at this stage, in order to resolve this controversy :- "A suit under Section 92, Civil P. C. is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the Court are necessary for the administration thereof, and it must pray for one or other of the reliefs that are specifically mentioned in the section. It is only when these conditions are fulfilled that the suit has got to be brought in conformity with the provision of Section 92, Civil P. C. As was observed by the Privy Council in 55 Ind App 96 : (AIR 1928 PC 16), a suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of Section 92, Civil P. C. In the case before us, the prayer made in the plaint are undoubtedly appropriate to the terms of Section 92 and the suit proceeded on the footing that the defendant, who was alleged to be the trustee in respect of a public trust, was guilty of breach of trust. The defendant denied the existence of the trust and denied further that he was guilty of misconduct or breach of trust. The denial could not certainly oust the jurisdiction of the Court, but when the Courts found concurrently on the evidence adduced by the parties, that the allegations of breach of trust were not made out, and as it was not the case of the plaintiffs, that any direction of the Court was necessary for proper administration of the trust, the very foundation of a suit under Section 92, Civil P. C. became wanting and the plaintiffs had absolutely no cause of action for the suit they instituted. In these circumstances, the finding of the High Court about the existence of a public trust was wholly inconsequential and as it was unconnected with the grounds upon which the case was actually disposed of, it could not be made a part of the decree or the final order in the shape of a declaratory relief in favour of the plaintiffs. It has been argued by the learned counsel for the respondents that even if the plaintiffs failed to prove the other allegations made in the plaint, they did succeed in proving that the properties were public and charitable trust properties - a fact which the defendant denied. In these circumstances, there was nothing wrong for the Court to give the plaintiffs a lesser relief than what they actually claimed. The reply to this is, that in a suit framed under Section 92, Civil P. C., the only reliefs which the plaintiff can claim and the Court can grant are those enumerated specifically in the different clauses of the section. A relief praying for a declaration that the. properties in suit are trust properties does not come under any of these clauses. When the defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the section if the plaintiff is held entitled to it: but when the case of the plaintiff fails for want of a cause of action there is no warrant for giving him a declaratory relief under the provisions of Section 92, C. P. C. The finding as to the existence of a public trust in such circumstances would be no more than an obiter dictum and cannot constitute the final decision in the suit." We are unable to see how the aforesaid observation of the learned Judges of the Supreme Court can be read as expressing the view that a declaratory relief can also be granted in a suit under Section 92, C. P. C. The reliance by counsel on the following passage of this quotation in support of this contention is misconceived :- "When the defendant denies the existence of a trust a declaration that the trust does exist might be made an ancillary to the main relief claimed under the section if the plaintiff is held entitled to it...................................." These observations have got to be read in the context of the entire judgment, and not in isolation, inasmuch as the learned Judges have clearly approved of the decision of the Privy Council in AIR 1928 PC 16 (supra) and have in clear and categorical terms held that a suit for a declaration that properties in suit are trust properties does not come under section 92, C. P. C. This contention is wholly futile. Moreover, all that the learned Judges have said in this passage is that a declaration that the trust does exist might be made as ancillary to the main relief i.e. a finding that a trust exists can be given as ancillary to the main relief, and not that a declaratory relief that properties in suit are trust properties can be granted in such a suit. This view was reiterated in AIR 1967 SC 1044 (supra) where after referring to the decisions of the Privy Council in AIR 1928 PC 16 (supra) and that in AIR 1952 SC 143 (supra), Supreme Court laid down that a relief for declaration is not one of the reliefs enumerated under Section 92, C. P. C. and a suit for a declaration that the property belongs to a trust, is outside the scope of Section 92, C. P. C. The same view was expressed in the case of Narainlal v. Sunderlal Tholia, (AIR 1967 SC 1540). This unequivocal position of the law was again affirmed in the case of Harendra Nath v. Kaliram Das. (AIR 1972 SC 246). In that case, the main reliefs claimed were declaratory in nature. In that suit, the reliefs prayed for were for a declaration that the suit land had been gifted for religious purposes and that the defendants had no personal interest, and further that the defendants were to maintain the satra out of the income of the suit land, and that the plaintiffs were entitled to possess their own Basti and use the satra for religious purposes. There was also a claim for possession. The High Court had taken the view that the reliefs claimed were outside the scope of Section 92, C. P. C. The learned Judges of the Supreme Court held that a suit under Section 92, C. P. C. was of a special nature and unless the suit was brought for one or other of the reliefs under Section 92, C. P. C., the suit was outside the scope of the section. It was as such held that the reliefs claimed in the suit filed did not fall within the purview of Section 92, C. P. C. and as such no sanction under that section was required for filing the suit. In view of these weighty pronouncements of the Supreme Court and that of the privy Council, it has to be held that the suits for declaration that properties appertained to a religious trust or waqf cannot form the subject-matter of a suit under Section 92, C. P. C. The court can. however, in case a dispute arises as to whether certain items of property are trust properties, record a finding that they are so, but this may be done only in case the plaintiff is held entitled to one or the other of the reliefs enumerated in Section 92, C. P. C. 3A. The second aspect of the first question is also covered by high authority. We have already extracted the relevant portion from the judgment of the privy Council in AIR 1928 PC 16 (supra) wherein it has been held that relief against strangers i.e. persons who are not trustees cannot be granted in a suit under Section 92. In AIR 1967 SC 1044 (supra), it has been held that a suit for a declaration that certain property belongs to a trust and for possession thereof from the alienees does not fall under Section 92, C. P. C., as such suits are really suits to enforce a private right and not a representative suit of the type contemplated by Section 92, C. P. C. It is necessary to extract the relevant portion of the judgment of the Supreme Court on this aspect on page 1046 of the report :- "It is settled law that to Invoke Section 92 of the Code of Civil Procedure, three conditions have to be satisfied, namely, (i) the trust is created for public purposes of a charitable or religious nature; (ii) there was a breach of trust or a direction of Court is necessary in the administration of such a trust; and (iii) the relief claimed is one or other of the reliefs enumerated therein. If any of three conditions is not satisfied, the suit falls outside the scope of the said section. A suit by an idol for a declaration of its title to property and for possession of the same from the defendant, who is in possession thereof under a void alienation, is not one of the reliefs found in Section 92 of the Code of Civil Procedure. That a suit for declaration that a property belongs to a trust is held to fall outside the scope of Section 92 of the Code of Civil Procedure by the Privy Council in 55 Ind App 96 : (AIR 1928 PC 16), and by this Court in 1952 SCR 513 : (AIR 1952 SC 143); on the ground that a relief for declaration is not one of the reliefs enumerated in S. 92 of the Code of Civil procedure. So too, for the same reason a suit for a declaration that certain properties belong to a trust and for possession thereof from the alienee has also been held to be not covered by the provisions of S. 92 of the Code of Civil procedure; See Mukaremdas Munnudas v. Chhagan Kisan Bhawasar. ILR (1957) Bom 809 : (AIR 1959 Bom 491). Other decisions have reached the same result on a different ground, namely, that such a suit is one for the enforcement of a private right. It was held that a suit by an idol as a juristic person against persons who interfered unlawfully with the property of the idol was a suit for enforcement of its private right and was, therefore, not a suit to which Section 92 of the Code of Civil Procedure applied: See Darshan Lal v. Shibji Maharaj Birajman. ILR 45 All 215 : (AIR 1923 All 120) and Madhavrao Anandrao v. Shri Omkareshvar Ghat, 31 Bom LR 192 : (AIR 1929 Bom 153). The present suit is filed by the idol for possession of its property from the person who is in illegal possession thereof and, therefore, it is a suit by the idol to enforce its private right. The suit is for a declaration of the plaintiff' title and for possession thereof and is, therefore not a suit for one of the reliefs mentioned in Section 92 of the said Code and, therefore, the said section is not a bar to the maintainability."
(3.) ALTHOUGH we feel that this controversy stands resolved by the aforesaid pronouncement of the Supreme Court, but inasmuch as there are three decisions of this Court in which the view has been taken that the third parties can also be made parties to a suit under Section 92, C. P. C., we propose to advert to these cases as also the views of such other High Courts as have been placed before us. In order to avoid unnecessary repetition, we propose to refer to the decision of the Calcutta High Court in the case of Gobinda Chandra v. Abdul Majid, (AIR 1944 Cal 163) wherein all the earlier views of various High Courts have been noticed. B. K. Mukherjea, J. as he then was, speaking for the Court after reviewing all the decisions of that Court and of the Madras High Court and Rangoon High Court and noticing the views of this Court held on page 175 as under :- "If the position of a transferee of a wakf property, either with or without notice of the wakf is that of a trespasser, I do not see any reason why he should be regarded as a trustee for the purpose of a suit under Section 92, Civil P. C. The essence of the claim against him must be that he should restore possession of the property which is held by him. There is no question of execution or administration of trust so far as he is concerned. If the purchaser had taken upon himself the duties of a trustee and became a trustee de son tort, relief against him under Section 92, Civil P. C., might certainly be claimed. But when he has purchased the property not as wakf property, but as the personal property of the mutwalli and purports to hold it adversely to the trust, he is in the position of a rank trespasser and not that of a trustee either actual or constructive. It would be disastrous, I think, to the interests of the wakf estate itself if for the recovery of trust property in such circumstances a suit under Section 92, Civil P. C., is deemed to be necessary." He also rejected the contention that the third parties may be retained as parties to the suit and gave the following reasons for this conclusion on page 177 of the report: "Mr. Gupta has argued in the last resort that, at any rate defendants 2 and 3 might be retained as parties to the suit and the decision might be given in their presence. This is undoubtedly the view taken by some of the other High Courts in India. It seems to us to be opposed to all principles to make a decision in the presence of a particular party with a view to make him bound by it when admittedly no relief can be given against him. The matter would have been different if he were a mere formal or pro forma party. It is an arguable point whether such party would have the right of appeal against such decision, although no decree was passed against him. So far as this Court is concerned, one consistent view has been followed throughout and we do not think that it would be proper on our part to make a departure in this direction." The view of our court as expressed in some cases to which we will presently refer is that an alienee although not a necessary party is a proper party. The view of the Madras High Court is variable In Raghavalu v. Sitamma: 27 Mad LJ 266 : (AIR 1915 Mad 517), the Chief Justice was of the view that a transferee could not be made a party, but he can be so made in cases if he desires, while that of Seshagiri Aiyar, J. was that he was a proper party though no relief could be claimed against him. In Anjaneya Sastri v. Kothandapani Chettiar (AIR 1936 Mad 449), a distinction was made between an absolute stranger to a trust property, and one who derived his title from the settler or cestui que trust. It was held that in the latter case, the person could be joined as a party though no relief could be claimed against him. The Bombay High Court in Collector of Poona v. Bai Chanchalbai, ((1911) ILR 35 Bom 470) had taken the view that an alienee was a necessary party although possession could not be recovered from him. In the case of Johnson D. Po. Min v. U. Ogli, (AIR 1932 Rang 132), it was held that an alienee or a stranger could not be made a party to the suit under Section 92. C. P. C.;