P.C.Mallick, J. - (1.) This is a representative suit instituted by the plaintiff for self and other members of the Hindu community interested in the trust created by the Will of Akshoy Kumar Ghosh deceased. The defendants Nos. 1 and 2 Hem Chandra Dey and Protap Narayan Bose were impleaded on the allegation that they were purporting to act as executors and trustees. Defendant no. 3 is Ashutosh Coomar in whose favour a lease was granted of one of the trust properties. The defendants Nos. 5 and 6 Prosanno Kumar and Hemanta Kumar are stated to be the heirs of the settlor along with the plaintiff. The defendant No. 4 is the deity. During the pendency of this suit the defendants Hem Chandra and Basanta died and their heirs and legal representatives have been substituted in their place and stead.
(2.) The nature of the suit will appear from the reliefs claimed. There are averments in the plaint in support of the reliefs. The title of the defendants Hem Chandra and Protap Narayan to act as trustees has been challenged. So also the lease has been challenged inter alia on the ground that the grantors were not properly appointed executors and trustees and were not competent in law to grant the tease. The executors and trustees have been alleged to, be guilty of various acts of mismanagement and breaches of trust. The allegations challenging the validity of the appointment of trustees have been introduced by way of amendment. The raliefs claimed are:- (b) Declaration that the defendants Nos. 1 and 2 Hem Chandra Dey since deceased and Protap Narayan Bose are not properly appointed trustee and shebait. (c) An injunction restraining the defendants Nos. 1 and 2 Hem Chandra Dey since deceased and Protap Narayan Bose from acting as such alleged trustee and shebait or in any way intermeddling with the said estate of Akshoy Kumar Ghose deceased, (d) Removal of the defendants Nos. 1 and 2 Hem Chandra Dey since deceased and Protap Narayan Bose from acting as such trustee and shebait and appointment of new trustee or trustees and/or shebaits. (e) Construction of the Will of Akshoy Kumar Ghose dated 21st May, 1918, and framing of a proper scheme. (f) An account of the dealings of the defendants Nos. 1 and 2 Hem Chandra Dey since deceased and Protap Narayan Bose with the income of the trust property and payment of the amount to be found due upon the taking of such accounts to the new trustee or trustees and shebait or she-baits. (f)(i) That the Indenture of lease dated the 10th December, 1946, mentioned in the plaint be adjudged void. (g) That the said Indenture of lease be delivered up and cancelled. (h) An injunction restraining the defendant No. 3 his servants and/or agents from dismantling and/or demolishing and/or removing the existing structure at premises No. 141, Cornwallis Street in Calcutta belonging to the said trust estate and/or erecting any new structure thereon. (i) Delivery of possession of premises No. 141, Cornwallis Street in Calcutta by the defendant No. 3 to the new trustee or trustees and shebait or shebaits. (j) Rs. 35,700/- as loss and/or damages against the defendants Hem Chandra Dey since deceased and Protap Narayan Bose the defendants No. 1 and/or 2 as in paragraph 6 hereof payable to the new trustee or trustees and shebait or shebaits. (k) If necessary, an enquiry into the said loss and/or damages and decree for the sum found due against the defendants Hem Chandra Dey since deceased and Protap Narayan Bose the defendants No. 1 and/or 2 payable to the new trustee or trustees and shebait or shebaits. (1) Further or other reliefs.
(3.) In the written statement filed by the different defendants all allegations of mismanagement and breaches of trust have been denied. The allegations challenging the validity of the appointment of trustees have also been denied. It is alleged that the appointments were matte pursuant to the order of the District Judge, 24 Perganrias in proper proceedings in that behalf and the said orders are still there and have not been set aside. It is contended that in consequence the beneficiaries under the trust must be deemed to have ratified the appointment and the irregularity, if any, in the appointment of executors has been Cured. It is pleaded that the suit is not maintainable by reason of the provisions of Section 92 of the Code of Civil Procedure. It is further pleaded that the suit is, in any event, barred by limitation.;