SHINGHAL, J. - (1.) THIS second appeal has been preferred by the plaintiff because the learned District Judge, Jaipur City, has, on appeal by the defendant, dismissed the plaintiff's suit for recovery of money.
(2.) THE suit was instituted by Shri Ram Das Trust through one Narain Singh for the recovery of Rs. 5000/- on account of principal and Rs. 550/- by way of interest and incidental expenses, making a total of Rs. 5550/-. It was clearly stated in the plaint that the plaintiff was a religious trust, which was administered by its trustees and that one Narain Singh was the Vice President of the Board of Trustees and had been authorised to advance loans from the trust fund and to realise them. THEre were nine trustees under the original trust deed, some of whom had retired and had been replaced. THE loan of Rs. 5000/- is said to have been advanced by Narain Singh in his capacity as Vice President and the suit was raised for its recovery because the defendant failed to repay it. The defendant denied the claim altogether, one of his defences being that Narainsingh alone was not competent to bring the suit. As the fate of the case' depends upon that main objection as to the frame of the suit, it is not necessary to refer to the other points of controversy. The learned Additional Civil Judge, Jaipur City, who tried the suit, decreed it on October 31, 1957. The defendant preferred an appeal to the District Judge and as it has been allowed and the suit dismissed by the impugned judgment dated May 15, 1959, the plaintiff has preferred this second appeal. The learned District Judge has taken the view that the suit could not be instituted by Narainsingh and that all the co-trustees were necessary parties to it. The question is whether this view is correct. It has been argued by Mr. Datt, learned counsel for the plaintiff-appellant, that a plea of non joinder of the other co-trustees was not taken in the written statement and that no issue was joined in respect of it and so the point did not at all arise for consideration in any of the courts below. This objection cannot be upheld for two obvious reasons. Firstly, the defendant took a specific plea in paragraph 10 of the written statement that the plaintiff was not entitled to sue and so it cannot be said that the plea that the suit was not maintainable in the form in which it had been instituted by the trust had not been taken. Secondly, the question whether Narainsingh had the authority to maintain the suit, or whether it was necessary for all the cotrustees to be parties to it, was raised in the trial court and was considered by it at great length. The same point loomed large when the case came up before the lower appellate court and was, in fact, the sole basis for the dismissal of the suit. I have therefore no doubt that the parties were all along aware that the question of the proper constitution of the suit was one of the main points in controversy between the parties and it has not been urged before me that any of the parties was prevented from leading evidence in regard to it. As a matter of fact, Mr. Datt has referred to the evidence on the record bearing on the point, and so' when the parties knew what the precise point in controversy was and had every opportunity to lead evidence in regard to it and availed of that opportunity, it would not matter if a specific issue was not framed to cover it. It would be sufficient to refer to the case of Nagubai Ammal vs. B. Shama Rao(l) in this respect. I shall therefore, proceed to consider the question whether Shri Ramdas Trust could maintain the suit through Kanwar Narain Singh. Now, a trust is not a juristic person and has been defined as follows in sec. 3 of the Indian Trusts Act - 3. A ''trust" is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner or declared and accepted by him, for the benefit of another, or of another and the owner." A trust is therefore an "obligation" annexed to the ownership of property, for the beneficial enjoyment of the person for whose benefit the confidence is accepted by the trustee. So when a trust is not a juristic person under the law, there is not any justification for Mr. Agarwal's argument that the trust could not have maintained the suit in the absence of any legal provision authorising it to do so. Faced with such a situation, Mr. Datt has turned round to advance the argument that the suit could be instituted by Kanwar Narain Singh as he was the duly appointed Vice-President of the Board of Trustees. The question is whether this could be so. In order to arrive at a decision it has to be remembered that it is the trustees who are the owners of the trust property which vests in them. This is because the author of the trust reposes or declares his confidence in the trustees and they accept it. By the very nature of this relationship, the subject-matter of the trust, which is called the "trust property", is transferred to the joint ownership of the trustees and it does not belong to any one of them singly. For this it would be enough to refer to a decision of their Lordships of the Privy Council in Chhatra Kumari Devi vs. Mohan Bikram Shah(2) in which their Lordships have held that the Indian law does not recognise legal and equitable estates and therefore there can be but one "owner" and when the property is vested in a trustee, the owner must be the trustee. When this is so, it does not require much argument to hold further that all co-owners of the trust property must join in a suit to recover the trust property. This view has been held in a number of cases and I shall merely refer to Bachulal vs. Oliuliah(3). Kattusheri Pishareth Kanna Pisharody vs. Vallotil Manakel Narayanan Somayajipad(4) and Thina Shanmuga Moopanar vs. Mona Chuna Subbayya Moopanar (5). The general rule is that if several persons have a joint right of motion, all must join in suing. There is no reason why co-trustees should not be subject to this rule. They, in fact, stand on a higher footing than mere joint owners as regards the indivisibility of their interest in the trust property for their interest is wholly joint and indivisible. This is amply borne out by a perusal of sec. 48 of the Indian Trust Act which clearly requires that where there are more trustees than one, all must join in the execution of the trust except where the instrument of trust otherwise provides. As it is not the plaintiff's contention that the present case falls within the exception just referred, it must follow that it was necessary for all the trustees to have joined in bringing the present action and the suit by one of the several trustees cannot be held to be maintainable. When Mr. Datt realised the inherent weekness of his case, he produced two applications. The first of these is dated September 3, 1965. It has been filed by the plaintiff for amending the cause title by inserting the names of the remaining trustees as co-plaintiffs or defendants. The other application has been made by the remaining trustees and is dated October 22, 1965. They have applied that they may be added as co-plaintiffs in the suit. These applications have been strenuously opposed by Mr. Agrawal for the reason that the period of limitation lor filing the suit has already expired. That is a good ground for rejecting the applications and they do not deserve any further consideration. In the result, it must be held that the learned Judge of the lower appellate court was right in holding that the suit, as it stands, is not maintainable. The appeal fails and is dismissed but, in the circumstances of the case, I would leave the parties to bear their own costs of this Court.;